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Xin, T.J. v Bolkus, N

Xin, T.J. v Bolkus, N

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TANG JIA XIN v. SENATOR NICK BOLKUS, Minister for Immigration and Ethnic
Affairs and JOANNE McRAE
Nos. ACTG40 and ACTG42 of 1993
FED No. 545
Immigration Number of pages - 21

(1993) 116 ALR 329

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J(1)

CATCHWORDS

Immigration - Detention in custody - Provision requiring "designated person" to be kept in custody pending removal from Australia or grant of entry permit - Provision not applicable if designated person detained in "application custody" for periods totalling 273 days - Application for refugee status refused - Request for review - Decision, on review, that designated person not a refugee - Application for release from custody - Whether prior to decision, on review, refusing refugee status person in "application custody" for periods totalling 273 days - Legislative intention - Whether Department "waiting for information relating to the application to be given by a person who is not under the control of the Department" - Meaning of "waiting for" - Whether decision to refuse refugee status null and void if made after expiration of period of 273 days in "application custody" - Whether failure to make a decision on application within period of 273 days in "application custody" entitles person to grant of entry permit.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), Part 2, Division 4B

Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

HEARING

CANBERRA, 26, 27 July 1993

#DATE 6:8:1993

Counsel for the applicant: Mr A.R. Castan QC

and Mr C.M. Erskine

Solicitors for the applicant: Gallens Crowley and

Chamberlain

Counsel for the respondents: Mr G.K. Downes QC

and Mr T.M. Howe

Solicitor for the respondents: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The application be dimissed.

2. There be no order as to the costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

NEAVES J Tang Jia Xin ("the applicant") is at present being kept in custody at the Immigration Reception and Processing Centre at Port Hedland in the State of Western Australia. He has applied to the Court by an application framed in terms of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") and s.39B of the Judiciary Act 1903 (Cth) for an order directing his release from custody and for other relief. The first respondent to the application is Senator Nick Bolkus, the Minister for Immigration and Ethnic Affairs. The second respondent is Joanne McRae, the Manager of the Immigration Reception and Processing Centre at Port Hedland. The authority for keeping the applicant in custody is said to be found in Division 4B of Part 2 of the Migration Act 1958 (Cth) ("the Act").

The applicant is a citizen of the People's Republic of China. He is one of a group of persons who arrived in the territorial sea off the north-western coast…

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: [1993] FCA 545
Decision Date: 06 AUGUST 1993

CaseChat Overview and Summary

The case of Xin, T.J. v Bolkus, N involved the applicant, a designated person detained in Australia, seeking release from custody on the basis that the provisions of the Migration Act requiring them to be detained were inapplicable. The applicant argued that they had been in "application custody" for periods totalling 273 days, and as such, the provisions requiring them to be detained did not apply. The respondent, the Minister for Immigration, opposed the application, asserting that the applicant had not been in "application custody" for the requisite period, and therefore, the detention provisions remained applicable.

The central legal issue before the court was whether the applicant had been in "application custody" for a cumulative total of 273 days prior to the decision on review of their refugee status application. The court had to determine the meaning of "waiting for" in the context of the Act, and whether the decision to refuse refugee status was null and void if made after the expiration of the 273-day period in "application custody". Additionally, the court needed to consider whether the failure to make a decision on the application within the 273-day period in "application custody" entitled the applicant to the grant of an entry permit.

The court held that the applicant had not been in "application custody" for periods totalling 273 days, as the Department was not "waiting for information relating to the application to be given by a person who is not under the control of the Department". The court found that the Department had been actively pursuing the provision of information, and therefore, the applicant had not met the threshold for release from custody. The court also concluded that the decision to refuse refugee status was not null and void simply because it was made after the expiration of the 273-day period in "application custody". Furthermore, the court held that the failure to make a decision on the application within the 273-day period did not entitle the applicant to the grant of an entry permit. Accordingly, the application for release from custody was dismissed, with no order as to costs.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The application be dimissed.

2. There be no order as to the costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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