Xie v Immigration Department [1999] FCA 365

FEDERAL COURT OF AUSTRALIA

Xie v Immigration Department [1999] FCA 365

IMMIGRATION – PRACTICE AND PROCEDURE – motion to dismiss proceeding generally as disclosing no reasonable cause of action – applicant out of time in lodging application for review of Refugee Review Tribunal's decision – whether any other reviewable decision – whether sufficiently clear that applicant was an unlawful non-citizen – whether respondent required to remove applicant as soon as reasonably practicable, without any decision being involved – whether application should be permitted to go to trial – conflicting evidence in departmental records – applicant held temporary entry permit at one stage – was eligible for permanent entry permit – no present evidence of having applied for permanent entry permit – departmental records indicating (wrongly on respondent's case) that Bridging Visa issued to applicant at another stage – complex legislative and regulatory regime – applicant unlikely to succeed at trial – but not sufficiently clear that case against applicant must fail – need for exceptional caution to be exercised before striking out application – motion dismissed.

Federal Court RulesOrder 20 r(2)(1) Migration Act 1958 (Cth), ss 6(1), 8(1)(d), 8(3)(c)(i), 13, 14(2),(3), 20(1),(5),(5A), 22(1), 47, 198(6), 430, 478 Migration Legislation Amendment Act (No 59 of 1989), s 6(2)(a), (b) Migration (1989) Regulations, reg 119E, 119H Migration Regulations (Amendment) Regulations (Statutory Rules 1990 No 1) reg 18 Migration Reform Act 1994 Migration Regulations (Amendment) Regulations (Statutory Rules 1990 No 237) regs 22, 23, 38

Migration (1993) Regulations Parts 437.52, 815.512, 815.521, 815.721 Migration Reform (Transitional Provisions) Regulations(Statutory Rules 1994 No 261) regs 4, 5, 10, 16 Migration Regulationsreg 5.02 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 applied Pathmanathan v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, Full Court, 14 May 1998) followed