Wei Zhang v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 496

JUDGMENT No. .49.(;r.,..~ , 92

IN TEE FEDERAL COURT OF AUSTRALIA	)
1

SOUTH DISTRICT WALES REGISTRS ) No. G399 of 1992

)

GENERAL DIVISION	)
B E T W E E N :

Applicant

THE MINISTER FOR IMMIGRATION

GOVENQfEWl' AND ETHNIC AFFAIRS

Respondent

-:  ~eerey J

m:  19 June 1992

m: sydney

EX TEMPO RE REASONS FOR JlmGMENT

This is the return of an application for an interlocutory injunction to restrainthe respondent from removing the applicant from Australia. On Wednesday 17 June I granted interim relief in those terms until 5pm today.

applicant. (See reg.lOlB(l)(b)(iv).)

The applicant is a citizen of the People's Republic of China. She is married to M r Peng Zhang and they have one child, Su Ti Zhang, who was born in 1985. The applicant's husband arrived in this country in 1988 and was subsequently granted a four year residence permit. The applicant was granted a PRC (temporary) visa under reg.lO7B of the Migration Regulations 1989. One of the criteria for the grant of such a visa is that the applicant:

lodges with the application an approved nomination in relation to the

As far as I was informed there is no statutory nomination form

although reg.2(1) defines:

Nomination

a nomination i n accordance with the relevant approved form.

According to the applicant, on 6 June 1992 she spoke by telephone to her husband in Australia who confirmed her travel arrangements. But she then learned for the first time that her child had left China and was now with her husband in Australia. On 8 June she received a letter from her husband assuring her that everything was all right and that he was expecting her. Then on the afternoon of 11 June - this being the day before she was due to leave for Australia - the applicant spoke again to her husband and he told her that because she had had an argument with his mother she should not come to Australia until she - presumably the mother - had calmed down. He also told the

meet her at the airport but she could not live with him because	applicant that if she insisted on coming to Australia he would
he was now living with another woman.
There is some very indirect evidence that the husband may have told the applicant in this conversation that her visa had been cancelled, but for present purposes I do not need to make any finding of fact as to this.
It seems that on 9 June the husband had lodged a statutory declaration with the department "withdrawing sponsorship" of his wife's application and indicating that their relationship had concluded.
The Australian Embassy in Beijing sent a message to the applicant on 10 June stating that the visa had been cancelled and stating:

Your sponsor haa withdrawn support for your application.

There is no evidence to indicate that the applicant in fact received that letter. She boarded the plane for Australia and was taken into custody on her arrival under s.89(3).

The grounds that have been relied on have been debated in a necessarily shortened form and I keep firmly in mind that the question for me at the moment is whether there is a serious issue to be tried. Counsel for the applicant submitted a written outline of argument which contains a detailed argument in support of the grounds raised in the application.

arguable that the statutory power to cancel a visa conferred by	I think all I need say at the moment is that it seems at least
s.26 of the piaration Act 1958 is not necessarily to be exercised by reference to the same criteria which appear in reg.lO7B. In particular, it seems to me arguable that it does not necessarily follow that the requirement that an applicant must provide an approved nomination for such a visa at the time of application carries with it the implication that the person making the nomination can, at any time after the grant of the visa, withdraw
that nomination with the consequence that the Minister is legally required to cancel the visa under s.26.
I was referred to the recent decision of Hill J in Li Fana v the

. .

of Immiaration. Local Government and Ethnic Affairs, No.

NG 536 of 1991, unreported, 29 January 1992. Some of the facts

in that case might be said to make this a stronger case for cancellation. In Li Fana's case the visa was cancelled after the applicant arrived in Australia. On the other hand, as counsel for the applicant in the present case argued, there are facts which might point the other way, and notably the fact in the present case that the applicant has a child who is now in Australia, apparently as a lawful resident, and the cancellation of the visa may practically exclude the applicant's prospects of ever seeing the child again. Quite apart from questions of natural justice, it seems to me arguable that there are facts which should have been considered by the decision maker in deciding whether to cancel the applicant's visa.

I think therefore that a triable issue to the required degree has

been shown. It was not contended by the respondent that if this were the case that the balance of convenience weighed against the grant of an injunction. I will grant an interlocutory injunction. I will hear counsel as to the appropriate directions.

I certify that this and the

preceding (4) four pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice

Counsel for the applicant:	Mr G Craddock
Solicitors for the applicant:	Legal Aid Commission of New South Wales
Counsel for the respondent:	M r N J Williams
Solicitors for the respondent:	Australian Government Solicitor