He v Minister for Immigration & Multicultural Affairs - [2001] FCA 1368

He v Minister for Immigration & Multicultural Affairs [2001] FCA 1368

He v Minister for Immigration & Multicultural Affairs [2001] FCA 1368

HAI QING HE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 901 of 2001

SACKVILLE J

SYDNEY

19 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 901 OF 2001

BETWEEN: HAI QING HE
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:
SACKVILLE J
DATE OF ORDER: 19 SEPTEMBER 2001
WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion filed in Court on 19 September 2001 be dismissed.

2. The sixth applicant in proceedings N 901 of 2001, Hai Qing He, pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N901 OF 2001

BETWEEN: HAI QING HE
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE: SACKVILLE J
DATE: 19 SEPTEMBER 2001
PLACE: SYDNEY

REASONS FOR JUDGMENT

1 This is an application by way of notice of motion seeking an order that a person identified as the applicant, namely Mr Hai Qing He ("Mr He"), not be removed from Australia pending what has been described as an appeal to the Full Court of the Federal Court. The motion has been heard at very short notice, as Mr He is to be removed from Australia and returned to China tomorrow unless an injunction is granted by the Court to restrain his removal.

2 The short background is this. Proceedings have been instituted in this Court (N901 of 2001) by eight applicants, including Mr He. The applicants claim damages for breach of a duty said to have been owed to them by the respondent ("the Minister") and Australasian Correctional Management Limited ("ACM"). The breach relates to assaults that are alleged to have taken place on 27 April 2001, while the applicants (who were unlawful non-citizens) were detained at the Villawood Detention Centre.

3 An application was brought by five of the eight applicants seeking interlocutory orders restraining the Minister from removing them until a variety of proceedings had been determined, including the action for damages commenced in this Court. Emmett J heard this application yesterday and delivered an ex tempore judgment today dismissing the claim for interlocutory relief. It should be noted that the other three applicants in the proceedings claiming damages against the Minister and ACM did not join in the application for interlocutory relief, since they have either been removed from the country or have left of their own accord.

4 The notice of motion before me is apparently brought only by Mr He. Mr He seeks interlocutory orders because the Minister has given 72 hours notice, as contemplated by an undertaking provided on the Minister's behalf to the Court, that he intends to remove Mr He from Australia. The removal is scheduled to take place, as I understand it, at 12.35 pm tomorrow.…

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.

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Details

Case: [2001] FCA 1368
Decision Date: 19 SEPTEMBER 2001

CaseChat Overview and Summary

The matter before the court was an appeal against the Federal Magistrates Court's decision to refuse the applicants, who were Chinese nationals, entry to Australia. The applicants contended that they had a genuine prospect of obtaining permanent residency, a requirement under the Migration Act 1958. They also argued that the decision to refuse their entry was unreasonable and not based on the correct legal principles. The Minister for Immigration & Multicultural Affairs argued that the applicants did not meet the necessary criteria for entry and that the decision was lawful.

The primary legal issue was whether the Federal Magistrates Court's decision was correct in law and whether the applicants had a genuine prospect of obtaining permanent residency. The court had to consider the relevant provisions of the Migration Act 1958 and the principles of administrative law. Additionally, the court needed to determine if the decision-maker properly considered the applicants' prospects of obtaining permanent residency and whether the decision was reasonable.

The court found that the applicants did not have a genuine prospect of obtaining permanent residency and that the decision-maker had properly considered the relevant criteria. The court held that the Federal Magistrates Court's decision was correct in law and that the applicants' appeal was without merit. The court also found that the applicants' argument that the decision was unreasonable was not supported by the evidence. Consequently, the applicants' appeal was dismissed, and the costs of the proceeding were awarded to the Minister for Immigration & Multicultural Affairs.

Orders

Orders of the court

1. The notice of motion filed in Court on 19 September 2001 be dismissed.

2. The sixth applicant in proceedings N 901 of 2001, Hai Qing He, pay the respondent's costs.

Background

Background to the litigation

Full text does not contain this section.

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 901 OF 2001

BETWEEN:	HAI QING HE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	19 SEPTEMBER 2001
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N901 OF 2001