Re: FAN YONG MIAN
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G71 of 1992
FED No. 446
Immigration
(1992) 28 ALD 171 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)
CATCHWORDS
Immigration - deportation order - subsequent application for refugee status - claim for interlocutory relief staying execution of order pending determination of application - no application for revocation order - no basis for relief.
Migration Act 1958
Dallikavak v. Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98
Minister for Immigration and Ethnic Affairs v. Singh Dhillon (1987) 14 FCR 351
HEARING
PERTH
#DATE 16:6:1992
Counsel for the Applicant: Mr P. Nichols
Solicitors for the Applicant: M. Franconi and Associates
Counsel for the Respondent: Mr P. Macliver
Solicitors for the Respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
The claim for interlocutory relief is dismissed.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Fan Yong Mian is a citizen of the Peoples Republic of China who came to Australia in June 1988 to study English for 7 months. He entered this country under a temporary entry permit issued for that purpose. In September 1988 he returned to China, was divorced from his then wife and placed his two children of the marriage in the care of his brother. On 24 October 1988 he returned to Australia and on 12 December married a Ms Chau. On 10 January 1989 he lodged an application for a permanent entry permit on the ground that he was married to a resident of Australia. His residential address was given as 158 Subiaco Road, Subiaco. On 27 February 1990, he told an officer of the Department of Immigration, Local Government and Ethnic Affairs that his then current address was the same. On 29 June 1990 he made a declaration under the Statutory Declarations Act on a printed form which included the statement that he was then living at 158 Subiaco Road, Subiaco, Perth with his spouse Ai Lien Chau and that the marriage had not been entered into for the purpose of gaining permanent resident status in Australia for himself. On 23 July 1990, he was granted resident status.
On 1 July 1991, Mr Fan was arrested by an officer of the Department as a person reasonably suspected of being an illegal entrant under s.92 of the Act and on 17 July 1991 the Minister ordered, under s.60 of the Act, that he be deported. The Minister contended that the statements as to place of residence and the purpose of his marriage contained in the statutory declaration of 29 June 1990 were false in material particulars.
An application for review of the deportation order was heard by Lee J. who gave judgment on 4 June 1992 dismissing the application. In so doing, his Honour was not satisfied that it had been shown that as at 12 December 1988 Fan and Ms…
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- Case
- [1992] FCA 446
- Decision Date
CaseChat Overview and Summary
The court considered whether there were exceptional circumstances that warranted the grant of interlocutory relief to stay the execution of the deportation order. The court noted that Mr Cummings had not applied for a revocation of the deportation order, and therefore, the court was not presented with a situation where the deportation order had been rendered ineffective. The court further considered that there was no basis for granting interlocutory relief, as Mr Cummings had not demonstrated that the deportation order would cause him irreparable harm, or that the deportation order was unlawful or that it had been obtained through fraud or deceit.
The court found that there were no exceptional circumstances warranting the grant of interlocutory relief to stay the execution of the deportation order. The court held that Mr Cummings' application for refugee status did not provide a sufficient basis for the grant of interlocutory relief. The court dismissed the claim for interlocutory relief.
The court ordered that the claim for interlocutory relief be dismissed. The court did not make any orders regarding the deportation order or Mr Cummings' application for refugee status.
Orders
Orders of the court
THE COURT ORDERS THAT:
The claim for interlocutory relief is dismissed.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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