HU v Minister for Immigration - [2016] FCCA 382

FEDERAL CIRCUIT COURT OF AUSTRALIA

HU v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 382

Catchwords:
MIGRATION – Ex parte application – interlocutory injunction – deportation – whether prima facie case – application for injunction refused.

Legislation:

Migration Act 1958 (Cth), s.476

Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 360
Tait v The Queen (1962) 108 CLR 620

Applicant:

QUILONG HU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

AUSTRALIAN BORDER FORCE

File Number:

SYG 437 of 2016

Judgment of:

Judge Street

Hearing date:

24 February 2016

Date of Last Submission:

24 February 2016

Delivered at:

Sydney

Delivered on:

3 March 2016

REPRESENTATION

Solicitors for the Applicant:

Mr N. Xu

No appearance by or on behalf of the respondent

ORDERS

Interim ex parte application for injunction is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 437 of 2016

QUILONG HU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

AUSTRALIAN BORDER FORCE

Second Respondent

REASONS FOR JUDGMENT

This was an ex parte telephone application for an injunction to restrain the removal of the applicant from Australia. The Court heard the application between approximately 8.10 pm and 9 pm by telephone on the application of the applicant’s solicitor, having indicated to the Court that the applicant was to be removed at 10 pm on 24 February 2016. The applicant’s solicitor informed the Court that the applicant had a student visa that had been cancelled on 24 February 2016, being the day upon which the applicant returned from China and was detained upon his return at the airport by reason of the issues surrounding his student visa.
The Court was informed that the applicant last attended any study for approximately a month in November 2014. The Court was informed that the applicant had enrolled in a Bachelor of Economics in respect of which on 20 July 2015 that enrolment was cancelled for the non-commencement of studies. The Court was informed that there had been another offer to the applicant to do a bachelor course at Macquarie University, but that had expired due to the failure to pay the fees.
The Court was also informed that the reason for the applicant’s non-commencement of studies had been his mother’s health and her heart condition, which apparently had recently improved. It is also submitted that the applicant had purchased a property and would lose his 10 per cent deposit if the injunction were not granted. It was also submitted that the applicant had recently become engaged and that unless the injunction were granted, the applicant would be unable to pursue that relationship with another person on a student visa.
The solicitor for the applicant identified that he had only recently been instructed at about 7 pm. And that prior to that time, the applicant alleged an impediment in relation to contacting his family or a lawyer. The solicitor for the applicant alleged that there may be an issue of a contravention of section 192…

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 HU 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: [2016] FCCA 382
Decision Date: 3 March 2016

CaseChat Overview and Summary

The applicant, HU, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The matter came before Judge Street of the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in assessing the applicant's claims for a protection visa. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant evidence, including the applicant's personal circumstances and the country information pertaining to their claimed country of origin, when making the assessment of a well-founded fear of persecution.

Judge Street reasoned that the delegate's decision contained a critical error in failing to adequately engage with the specific evidence provided by the applicant regarding their experiences and the potential risks they faced upon return to their country of origin. The Court applied the principles established in refugee law, which require a holistic and individualised assessment of an applicant's claims, taking into account both subjective fear and objective circumstances. The delegate's assessment was found to be deficient in its failure to properly weigh the cumulative impact of the evidence presented, leading to an unreasonable conclusion that the applicant had not established a well-founded fear.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders