Xie v Minister for Immigration and Multicultural Affairs

Case [2000] FCA 230


FEDERAL COURT OF AUSTRALIA

Xie v Minister for Immigration & Multicultural Affairs [2000] FCA 230

MIGRATION – judicial review – applicant for Subclass 450 Resolution of Status (Temporary) visa – criteria for grant of visa – whether applicant ‘dependent’ on father – Migration Regulations 1994 reg 1.03 – Procedures Advice Manual 3 (“PAM Guidelines”) – whether Minister’s delegate erred in law by applying PAM Guidelines as though legislation.

MIGRATION – judicial review – whether decision of Minister’s delegate “induced or affected … by actual bias” – relevant principles.

Migration Act1958 (Cth) Pt 8
Migration Regulations 1994 reg 1.03

Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 540-1, 542 referred to
Minister for Immigration and Multicultural Affairs v Pires (1998) 90 FCR 214 at 219-220 referred to
Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 at 127, 134 applied
Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 at 289, 290 referred to
Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951 referred to
R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116 referred to
Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 317 referred to

SONG XIE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 130 of 1999

WEINBERG J
9 MARCH 2000
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 130 of 1999

BETWEEN:

SONG XIE
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

WEINBERG J

DATE OF ORDER:

9 MARCH 2000

WHERE MADE:

MELBOURNE

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

VICTORIA DISTRICT REGISTRY

V 130 of 1999

BETWEEN:

SONG XIE
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

WEINBERG J

DATE:

9 MARCH 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an application under Pt 8 of the Migration Act1958 (Cth) (“the Act”) in which the applicant, Song Xie, seeks review of a decision made on 3 March 1999 rejecting his application for a Subclass 450 – Resolution of Status (Temporary) visa.

  2. The applicant was born in the People’s Republic of China (“China”) on 8 December 1974 and is a Chinese national. Both the applicant’s parents reside in Australia. He is their only son. It is necessary to set out something of the history of his father’s attempts to secure permanent residence in this country in order to understand the way in which the applicant puts his case.

    The applicant’s father’s attempts to secure permanent residence in Australia.

  3. The applicant’s father, Dr Huai An Xie, is a research and design engineer. He first came to this country in 1984. Between 18 October 1984 and 31 July 1987 Dr Xie, together with his wife and son, resided…

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Details
AGLC
Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230
Case
[2000] FCA 230
Decision Date

CaseChat Overview and Summary

In the case of Xie v Minister for Immigration and Multicultural Affairs, the applicant, Mr Xie, appealed against the refusal of his subclass 450 visa application, which is a dependent visa for a child. The decision was made by Ms Zoe McCann, and the case was heard in the Federal Court of Australia. Mr Xie argued that he met the criteria for being considered a dependent child under the relevant regulations, particularly in terms of financial and psychological dependence on his father, who was sponsoring him from Australia. The central legal issue before the court was whether Mr Xie had demonstrated that he was wholly or substantially dependent on his father for financial, psychological, or physical support, as required by the regulations.

The court examined Mr Xie's enrolment in university and his decision to pursue further studies rather than seeking employment, which was considered by the decision-maker as evidence that Mr Xie had chosen to remain financially dependent on his father. The court also noted that there was no evidence to suggest that Mr Xie was substantially dependent on his father for psychological support, as the relationship between Mr Xie and his father was described as normal for family members. Based on these findings, the court concluded that Mr Xie did not meet the definition of a dependent child and upheld the decision to refuse his visa application.

The court's decision was that Mr Xie's application for a subclass 450 visa be dismissed, and the applicant was ordered to pay the respondent's costs. This ruling reinforces the stringent criteria for dependent child visas and underscores the importance of demonstrating substantial dependency for the visa to be granted.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WEINBERG J
After setting out such matters as the personal details of the applicant, the legislative framework, and the definitions of “dependent” and “dependent child” in reg 1.03 and the documents upon which she had relied in arriving at her decision, Ms McCann continued:“At the time of application Mr Xie Song was aged 23 years.In order to satisfy the definition of ‘dependent child’, Mr Xie needs to demonstrate that he is “wholly or substantially dependent (on his father) for financial, psychological or physical support”.To assist in this determination, Mr Xie conducted in [sic] a telephone interview, with an officer of this office, on the 11th February 1999. The record of that interview is held in Iris.During this interview Mr Xie stated that he enrolled in Shanda University in Shanghai in September 1994 and is still currently enrolled. From September 1994 to September 1996 he majored in Accounting, and from September 1996 to February 1999, he majored in Computer Application. During his Computer application studies, Mr Xie applied for leave from September 1997 to February 1998, at which time he applied for a 457 Temporary Business visa to visit his relatives in Australia. When his application was refused, Mr Xie resumed his studies in Computer Application. When asked whether these two courses were related, Mr Xie stated that he thought they were closely related but not part of the one course, and that he had decided to further study to enhance his knowledge and education to allow him a better chance in finding employment.Mr Xie was then asked about any past employment and how he supports himself, to which he answered that he has never held down any employment and that he relies on financial support from his parents in Australia.As both Mr Xie’s parents live in Australia, he stated that he has been living with his aunt from January 1995 until 1998 when he moved into his families [sic] apartment which was returned by the government.The Procedures Advice Manual 3 sets down policy guidelines for departmental officers delegated to determine visa applications. In Division 1.2, Reg 1.03 Interpretation – Dependent, it is stated in part that we can consider dependency for an unmarried adult child, under the age of 25 years of age who is generally living in the family home and is a full time student. It is further stated that the profile of a dependent student is one who, has full-time student status and is working towards their first qualification. PAM goes on to say that students who have completed one post-secondary qualification and are continuing with study, whether part-time or full-time, are not considered to be dependent. PAM further states that it is important to establish whether the dependence is by preference, or the person has to rely on another for support and there is no choice involved.I consider that Mr Xie’s activities since graduating from Accounting in 1996, (enrolment in a second full-time course and applying for a 457 temp. business visa to Australia) have demonstrated that he has made the decision to remain financially dependent for reasons other than from necessity. I find that, Mr Xie has made an adult decision and chosen not to seek employment but to further study and remain at home to receive financial support from his father, sponsor Xie Huai An. While I accept that Mr Xie probably receives financial support from his father, I consider this to be Mr Xie’s choice, and does not prevent him from moving beyond the bounds of childhood dependence.I have considered whether Mr Xie has demonstrated that he is “…wholly or substantially dependent … for … psychological … support”. I note that PAM3 states that “… the policy intention is that psychological dependence be related to a mental or emotional impairment or a medical condition which prevents the person from living independently”. On the basis of the information provided by Mr Xie, I consider that he and his father share a normal relationship such as exists between family members. I do not consider that Mr Xie has demonstrated that he is wholly or substantially dependent on his father for psychological support.Taking into account all of the above, there is no evidence before me that would indicate that Mr Xie Song is wholly or substantially dependent on his father for psychological or physical support.On this basis I am not satisfied that Mr Xie Song meets the definition of ‘a dependent child’ set down in regulation 1.03, and therefore find that Mr Xie fails to satisfy subregulation 450.211.5.DECISIONMr Xie fails to satisfy subregulation 450.211 and as this is failed, I refuse the grant of the subclass 450 visa application of Mr Xie Song.ZOE MCCANNPosition Number: 523003 March 1999”

Ratio Decidendi

Legal Principle Established

Established by: WEINBERG J

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