Lui v Minister for Immigration - [2007] FMCA 867

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LUI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 867

MIGRATION – Application for review of decision of Migration Review Tribunal – pending hearing Department decides to remove applicant from Australia – whether such decision is a “privative clause” decision – application for injunctive relief – serious question to be tried as to jurisdictional error.

Migration Act1958, ss.13, 14, 29, 37, 72, 73, 109, 189, 195, 196, 198, 338, 474, 481, 482, Divisions 3A, 6, 7, Schedule 1, 2 Regulations 2.01, 2.03
Federal Magistrates Act1999, s.15

WAJZ v MIMIA [2004] FCA 1332
M38/2002 v MIMIA (2003) 131 FCR 146
NATB v MIMIA (2003) 133 FCR 506
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 474
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368
Shahrooie v MIMIA [2003] FCA 996
NATB v MIMIA [2003] FCAFC 185
Kopiev v MIMIA [2000] FCA 1831
Re Minister; ex parte SE (1998) 158 ALR 735
Mastipour v Secretary, DIMIA [2004] FCA 1571
He v Minister for Immigration and Multicultural Affairs [2001] FCA 1368
Li v MIMIA [2002] FCA 667
P1/2003 v MIMIA [2003] FCA 1029
Australian Broadcasting Corporation v O’Neill [2006] HCA 46
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
VAAN v MIMIA [2002] FCA 197

Applicant:

CHUN LIN LUI

First Respondent

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

BRG265 of 2007

Judgment of:

Wilson FM

Hearing date:

1 June 2007

Date of last submission:

1 June 2007

Delivered at:

Brisbane

Delivered on:

5 June 2007

REPRESENTATION

Counsel for the Applicant:

Mr M. Steele

Solicitors for the Applicant:

Cruise Lawyers

Counsel for the Respondent:

Mr P Bickford

Solicitors for the Respondent:

Clayton Utz

ORDERS

An injunction issue restraining the Minister, and his servants, agents and officers from removing the applicant from Australia until the final disposition of the applicant’s application to review the decision of the MRT dated 15 March 2007, and the decision to remove him from Australia, made on or about 16 May 2007.
That costs of and incidental to this application be reserved to the final hearing on 22 June 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 265 of 2007

CHUN LIN LUI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent:

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 5 April 2007 the applicant filed in this court an application for judicial review of a decision of the Migration Review Tribunal (“the MRT”) notified to the applicant on 16 March 2007, wherein the MRT affirmed the decision of the delegate of the Minister for Immigration and Citizenship (as he now is) not to grant the applicant a Bridging E (Class WE) visa.
On 20 April 2007 I made directions for the hearing of the application, and listed it for hearing on 22 June 2007.
Notwithstanding this hearing date, on 16 May 2007, the solicitors for the first respondent (“the Minister”) wrote to the applicant and his…

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: [2007] FMCA 867
Decision Date: 5 June 2007

CaseChat Overview and Summary

The case of Lui v Minister for Immigration involved the applicant, who sought relief against the Minister for Immigration and his representatives, in relation to decisions made concerning his removal from Australia. The applicant, who had applied for a review of a decision by the Migration Review Tribunal (MRT) dated 15 March 2007, sought an injunction to prevent his removal from Australia until his application for review was finally resolved. Additionally, he sought an injunction against the decision made by the Minister on or about 16 May 2007 to remove him from Australia. The application was heard in the Federal Court of Australia, where the applicant, represented by counsel, sought urgent relief.

The central legal issues in the case revolved around the applicant's right to remain in Australia pending the resolution of his application for review of the MRT decision and the legality of the Minister's decision to remove him. The court had to determine whether there were grounds to grant the injunction, considering the applicant's right to a fair process and the discretion exercised by the Minister under the Migration Act 1958. The court also needed to weigh the public interest considerations against the applicant's personal rights.

In delivering the judgment, the court considered the applicant's right to a fair and just process, as well as the Minister's statutory powers under the Migration Act. The court recognised the urgency of the situation and the potential for irreversible harm if the applicant were removed before his application for review was decided. It found that the applicant had made out a prima facie case for the relief sought, and that the balance of convenience favoured the grant of the injunction. Consequently, the court issued an injunction restraining the Minister and his representatives from removing the applicant until the final disposition of his application for review. The court also ordered that the costs of the application be reserved for the final hearing.

The final orders of the court included an injunction preventing the removal of the applicant until his application for review was finally resolved, as well as an order reserving the costs of the application for the final hearing. This decision underscored the importance of ensuring that individuals have access to a fair and just process, even in the context of immigration and removal decisions.

Orders

Orders of the court

An injunction issue restraining the Minister, and his servants, agents and officers from removing the applicant from Australia until the final disposition of the applicant’s application to review the decision of the MRT dated 15 March 2007, and the decision to remove him from Australia, made on or about 16 May 2007.

That costs of and incidental to this application be reserved to the final hearing on 22 June 2007.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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