FEDERAL COURT OF AUSTRALIA Lin v Minister for Immigration & Multicultural Affairs [2001] FCA 283
MIGRATION – judicial review – whether the Migration Review Tribunal was satisfied that the applicant “is making”, or is the subject of, acceptable arrangements to depart Australia – whether Tribunal erred in considering the stage at which any such arrangements had reached – whether Tribunal had erred by requiring the applicant to have a passport or identity document and an airline ticket – whether the Tribunal erred in taking into account the genuineness of the applicant’s expressed intention to depart Australia – whether the Tribunal relied on Regulations that had been repealed and a policy which had been replaced – Tribunal did not rely on repealed Regulations – substituted policy was in identical terms – application dismissed.
LIN LI QUN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 216 of 2000
CARR J 20 MARCH 2001 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 216 OF 2000
BETWEEN:
LIN LI QUN Applicant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:
CARR J
DATE OF ORDER:
20 MARCH 2001
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant 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
WESTERN AUSTRALIA DISTRICT REGISTRY
W 216 OF 2000
BETWEEN:
LIN LI QUN Applicant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:
CARR J
DATE:
20 MARCH 2001
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for an order of review of a decision of the Migration Review Tribunal made on 27 November 2000 by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a Bridging E Class WE (Subclass 050) visa (which I shall refer to in these reasons as a bridging visa) to the applicant.
This application was heard at the same time as three other applications (Nos W215, W217 and W218 of 2000) in which the factual circumstances were very similar to those in this case. In each case the applicant relied on identical grounds of review and made identical submissions. The respondent made one set of submissions for all four applications, with some minor variations to reflect slight differences in the Tribunal’s reasons. The reasoning in these reasons for judgment is substantially similar to the reasons for judgment in the three other matters.
FACTUAL BACKGROUND
The applicant entered Australia on 4 May 1997 on a false passport and holding a…
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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AGLC
Lin v MIMIA [2001] FCA 283
Case
[2001] FCA 283
Decision Date
CaseChat Overview and Summary
This case, Lin v MIMIA, involved the applicant, who entered Australia on a false passport and subsequently applied for a Protection Visa, which was ultimately refused. The applicant applied for a bridging visa to allow him to manage his financial affairs and prepare to return to China, given his father-in-law's critical illness. Despite multiple applications for a bridging visa, all were refused, with the latest refusal occurring on 20 November 2000, due to the applicant not having acceptable arrangements to depart Australia.
The legal issues in this case revolved around the interpretation and application of Subclause 050.212(2) of the Migration Regulations, which requires the Minister to be satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. The applicant contested the Tribunal's decision, arguing that the Tribunal had incorrectly applied the relevant statutory criteria in refusing his application for a bridging visa.
The court found that the Tribunal had indeed considered the correct factors in making its decision. The Tribunal had referred to the same criteria as those in the Minister's Standing Instructions (MSI) 294, which reproduced the statutory criteria in identical terms. The court held that there was no material difference between the paragraphs in the Tribunal's decision and those in MSI 294. Therefore, the Tribunal had applied the correct criteria in making its decision.
As a result, the court dismissed the applicant's application for review. The court ordered that the application be dismissed and that the applicant pay the respondent's costs.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Background
Background to the litigation
This application was heard at the same time as three other applications (Nos W215, W217 and W218 of 2000) in which the factual circumstances were very similar to those in this case. In each case the applicant relied on identical grounds of review and made identical submissions. The respondent made one set of submissions for all four applications, with some minor variations to reflect slight differences in the Tribunal’s reasons. The reasoning in these reasons for judgment is substantially similar to the reasons for judgment in the three other matters. FACTUAL BACKGROUND The applicant entered Australia on 4 May 1997 on a false passport and holding a Subclass 676 Short Stay Visitor visa valid until 4 August 1997. On 14 May 1997 he lodged an application for a Protection Visa. A Bridging A visa was granted to him in association with that application. On 12 December 1997 the applicant’s application for a Protection Visa was refused. The applicant applied to the Refugee Review Tribunal for review of that decision. On 6 October 1998 the Refugee Review Tribunal affirmed the decision. On 10 February 1999 the applicant applied, under s 417 of the Migration Act 1958 (Cth) (“the Act”), to the respondent to exercise his power personally to substitute a more favourable decision for that of the Refugee Review Tribunal. A Bridging E visa was granted to him in association with that application. On 26 June 1999 the respondent refused that request with the result that the Bridging E visa ceased to have effect and he became an unlawful non-citizen. On 31 January 2000 the applicant was located by officers of the respondent’s department and taken into detention by them pursuant to s 189 of the Act. The applicant’s position is that he wishes to return to China, but seeks a bridging visa so that he can be released from immigration detention, attend to his financial affairs, as he has property to dispose of, and make preparations to return to China. Before the Tribunal he claimed that he could only finalise these matters if not detained. He also claimed that his father-in-law in China is critically ill and that he needs to be with his family. Since being in immigration detention the applicant has made five previous applications for a bridging visa. Each of those applications was refused. In some cases the applicant sought review before the Tribunal and in each of those cases the Tribunal affirmed the primary decision. The sixth application, which is the subject of this matter, was lodged on behalf of the applicant on 17 November 2000. On 20 November 2000 the respondent’s delegate refused the application. One of the grounds for such refusal was that the applicant was not making, and nor was he the subject of, acceptable arrangements to depart Australia. On 21 November 2000 the applicant applied to the Tribunal for review of that decision. THE STATUTORY AND REGULATORY REGIME It is not necessary, in these reasons, to describe in full the statutory and regulatory regime pursuant to which an applicant may obtain a bridging visa of the class sought by the applicant. A useful description of that regime can be found in the judgment of Lee J in Tutugri v Minister for Immigration and Multicultural Affairs [1999] FCA 1785. It is sufficient to refer to one of the criteria which an applicant for such a visa must satisfy both at the time of application and at the time of decision [see Clause 050.21 and 050.22 of Schedule 2 to the Migration Regulations (1994)]. That criterion is contained in Subclause 050.212(2) (“the Subclause”) and reads as follows:“An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.”
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
CARR J
The short answer to this point is that MSI 294 reproduces the above paragraph in identical terms. Thus, to the extent that the Tribunal may have taken into account the factors referred to in the above paragraph, it was taking into account the identical factors referred to in the same paragraph reproduced in MSI 294. There was no difference, not even a material difference, between the two paragraphs, as to which see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.CONCLUSION For the above reasons the application will be dismissed.