Ho v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HO v MINISTER FOR IMMIGRATION [2005] FMCA 1104

MIGRATION – Application for review of a decision of the Migration Review Tribunal – whether the Tribunal misconstrued and misapplied the words “compel” and “compelling” – consideration of policy – no jurisdictional error disclosed – application dismissed.

Migration Regulations 1994

Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77
Patel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 115
Khanfer v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 238
Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Minister for Immigration and Multicultural and Indigenous Affairs and Ors’ Ex parte Cohen (2001) 177 ALR 473
Bruce v Coles (1998) NSWLR 163

Applicant: YIN LEUNG HO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 564 of 2004

Judgment of: Pascoe CFM

Hearing date: 5 July 2005

Delivered at: Sydney

Delivered on: 5 August 2005

REPRESENTATION

Counsel for the Applicant: Mr Marsh

Solicitors for the Applicant: Lewis Law

Counsel for the Respondent: Mr Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application be dismissed.

2. That the applicant pay the respondent’s costs fixed in the sum of $5600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 564 of 2004

YIN LEUNG HO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of application filed on 4 March 2005 the applicant seeks a review of the decision of the Migration Review Tribunal (“the Tribunal”) handed down on 18 February 2004 affirming the decision of a delegate of the Minister refusing to grant a Partner (Temporary) (Class UK) visa to the applicant.

2. The applicant is a citizen of the People’s Republic of China (normally resident in Hong Kong) born on 29 May 1952 and arrived in Australia on 16 July 1992 on a permit that expired on 18 January 1993.  From that time, until he was granted a bridging visa in relation to the present visa application (lodged on 2 November 2001), the applicant was in Australia unlawfully.

3. The applicant gave evidence to the Tribunal that he initially overstayed his permit because his parents were ill.  However, in early 1993, the applicant decided to remain in Australia unlawfully in the hope that the Australian government would allow Chinese nationals to remain in Australia after the handover of Hong Kong in 1997, as the government had done in relation to Chinese nationals who had been in Australia at the time of the Tiananmen Square Massacre in 1989.

4. The applicant separated from his then wife in April 1998 and the marriage was formally dissolved in March 2000.  The applicant claims to have met his present wife in February 1999 and to have commenced cohabitation in August 1999.

5. On 11 March 2002 a delegate of…