MIGRATION – Application to review MRT decision affirming decision to refuse bridging visa – compliance with criteria in Schedule 2 to Migration Regulations.
MIGRATION – Application to restrain Minister from removing applicant from Australia.
The applications filed 5 April 2007, 30 May 2007 and 4 June 2007 be dismissed.
The applicant pay the respondents’ costs of and incidental to such applications including reserved costs, to be taxed.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE
BRG 265 of 2007
CHUN LIN LIU
Applicant
And
MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
On 15 March 2007 the Migration Review Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a Bridging E (Class WE) visa. The Tribunal’s decision was notified to the applicant, who is in detention, on 16 March 2007. The applicant seeks to review the decision of the Tribunal. He alleges jurisdictional error on the part of the Tribunal. Such error is a prerequisite to successful review: S157/2002 v The Commonwealth (2003) 211 CLR 476.
The applicant also seeks to review the subsequent decision of the Minister to remove the applicant from Australia, pursuant to s.198 Migration Act 1958 (“the Act”). On 5 June 2007 I ordered that an injunction issue restraining the Minister from removing the applicant from Australia until the final disposition of the applicant’s application to review the decision of the Tribunal. The applicant submitted, by his counsel that substantially the same issues arise on both applications (Applicant’s Outline paragraph 17).
The determination of this application requires the court to again enter the byzantine maze that is the Migration Regulations1994.
Before doing so, the factual background to the present application can be simply stated, and is taken from the reasons of the Tribunal. The applicant, a national of the Peoples Republic of China, first entered Australia as the holder of a false Australian passport on 11 November 2002.
On 26 January 2007 the applicant was detained attempting to leave Australia on the false passport. Between November 2002 and the date of his detention, the applicant had been living in Australia with his wife and two children (one of whom was born in Australia in 2005), although he had previously twice used…
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
AGLC
Liu v MIAC [2008] FMCA 725
Case
[2008] FMCA 725
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Liu, the applicant, sought judicial review of a decision made by the Migration Review Tribunal (MRT) which upheld a decision to refuse him a bridging visa. The applicant also sought an injunction to prevent the Minister from removing him from Australia. The respondents were the Minister for Immigration and Citizenship, the MRT, and the Commonwealth of Australia.
The legal issues that the Court had to address included whether the MRT's decision was legally sound and whether the Minister's decision to refuse a bridging visa complied with the criteria set out in Schedule 2 of the Migration Regulations. The applicant also argued that the MRT did not have the jurisdiction to make the decision and that the Minister's decision was unreasonable.
The Court found that the MRT's decision was legally sound and that the Minister's decision to refuse a bridging visa complied with the criteria set out in Schedule 2 of the Migration Regulations. The Court also found that the MRT had the jurisdiction to make the decision and that the Minister's decision was not unreasonable. The Court dismissed the applicant's applications and ordered that the applicant pay the respondents' costs of and incidental to the applications, including reserved costs, to be taxed.
Orders
Orders of the court
1.
The applications filed 5 April 2007, 30 May 2007 and 4 June 2007 be dismissed.
2.
The applicant pay the respondents’ costs of and incidental to such applications including reserved costs, to be taxed.