He v Minister for Immigration - [2009] FMCA 1142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HE v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1142

MIGRATION – Review of decision by Migration Review Tribunal – application of policy by Tribunal members – policy to be considered only when lawful – voluntariness to be considered in determining a ‘reasonable period’ – irreparable severability a relevant consideration – jurisdictional error – application allowed.

Migration Act 1958 (Cth), s.396
Migration Regulations 1994 (Cth) (as at 15 August 2005), reg.1.15, item 1123A(4) Schedule 1, part 115 Schedule 2

Applicant:

XIU ZHEN HE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1536 of 2009

Judgment of:

Nicholls FM

Hearing date:

21 September 2009

Date of Last Submission:

21 September 2009

Delivered at:

Sydney

Delivered on:

11 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr S Lloyd, SC

Solicitors for the Applicant:

Kah Lawyers

Counsel for the Respondents:

Mr JAC Potts

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ in the nature of certiorari issue, quashing the decision of the second respondent made on 11 June 2009.
A writ in the nature of mandamus compelling the second respondent to reconsider the application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1536 of 2009

XIU ZHEN HE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 29 June 2009, and amended on 21 September 2009, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), which affirmed the decision of a delegate of the respondent Minister to refuse the grant of Other Family (Migrant) (Class BO) visas to the daughter and grandson of the applicant now before this Court.

Background

The applicants for these visas, who are mother and young son, are both citizens of the People’s Republic of China (“China”), who were “nominated”…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read He v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FMCA 1142
Decision Date: 11 December 2009

CaseChat Overview and Summary

The case of He v Minister for Immigration involved the visa applicant, a mother of four children born in Australia, who applied for a permanent visa under the 'Remaining Relative' subclass of the Migration Regulations 1994. The primary dispute centred on whether the visa applicant satisfied the criteria for the visa, particularly the requirement that she be a remaining relative of an Australian relative. The case was heard in the Federal Court of Australia.

The central legal issue was whether the visa applicant was a 'remaining relative' of her son Michael, who was born in Australia, as required by the Migration Regulations. This hinged on the interpretation of the term 'remaining relative' and whether the visa applicant's separation from her husband and the subsequent circumstances affecting her other children impacted her status as a remaining relative. Additionally, the court had to consider whether the decision-maker properly exercised their discretion and whether the decision was legally sound.

The court found that the decision-maker had misapplied the criteria for the 'Remaining Relative' visa subclass. The visa applicant was indeed a remaining relative of her son Michael, but the decision-maker had incorrectly considered the impact of the visa applicant's separation from her husband and the circumstances surrounding her other children. The court quashed the decision and mandated the reconsideration of the visa application according to law.

The court's orders included quashing the decision made by the Minister for Immigration on 11 June 2009 and issuing a writ of mandamus to compel the Minister to reconsider the visa application in accordance with the law. This ruling underscored the importance of correctly interpreting the criteria for the visa and ensuring that decision-makers consider all relevant factors appropriately.

Orders

Orders of the court

A writ in the nature of certiorari issue, quashing the decision of the second respondent made on 11 June 2009.

A writ in the nature of mandamus compelling the second respondent to reconsider the application according to law.

Background

Background to the litigation

The relevant background and context for this matter is helpfully set out in the review applicant's outline of submissions. I reproduce this background, with the omission of one matter concerning the citizenship of one of the visa applicant’s daughters (not relevant to the proceedings before the Court):“Background2. The primary visa applicant is the mother of four children, each of whom were born in Australia [CB 404 [18], CB 405 [20]]. The eldest child, Kitty, was born in 1994 and became an Australian citizen in 2004 by operation of law. The next two daughters, Alice and Eda were born in 1999 and 2001 respectively. The youngest child, Michael, was born in 2003.3. The primary visa applicant and her husband separated in October 2003 shortly after Michael’s birth [CB 405 [20]].4. On 29 March 2004, the three youngest children became party to proceedings contending that they could not be removed because they were not aliens (NSD 441 of 2004).5. In September 2004, the visa applicant commenced divorce proceedings against her then husband.6. On 30 September 2004, the visa applicant departed Australia for China. Her father was to bring to her in China her youngest three children, if the pending application was unsuccessful. It was unsuccessful.7. On 2 November 2004, a couple of days before the three youngest children were to be taken to China to be with their mother, the father of the children (who was and apparently remains in Australia unlawfully) took the two daughters to dinner and then never returned with them. As far as is known, they remain with him…8. The visa applicant has not had any form of contact with the two children taken by the father since October 2004.9. On 5 November 2004, the visa applicant’s father brought the youngest child, Michael, to the visa applicant in China. That child is also a visa applicant.10. In December 2004, the visa applicant was granted a divorce by the Family Court. [With reference to CB 50 it appears that it was in fact the Federal Magistrates Court, although this is of no consequence to these proceedings.]11. The visa applicant’s parents and all of her many siblings are permanent residents or citizens of Australia and have been so at all material times. She has no ‘overseas near relatives’ in China.12. In mid August 2005, the visa applicant applied for a permanent visa on the basis that she is a ‘remaining relative’ (Michael being a secondary applicant).” With reference to Schedule 1 to Migration Regulations 1994 (“the Regulations”), the Other Family (Migration) (Class BO) visas applied for contained three sub-classes, of which sub-class “115 (Remaining Relative)” is one, being the only class in respect of which claims were advanced (see item 1123A(4)). The criteria for this subclass of visa was, at the relevant time, set out in Part 115 of Schedule 2 to the Regulations. For current purposes the following is relevant:“115.21 Criteria to be satisfied at time of application115.211 The applicant is a remaining relative of an Australian relative for the applicant. 115.22 Criteria to be satisfied at time of decision115.221 The applicant continues to satisfy the criterion in clause 115.211…”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.