Xie v Immigration Department [1999] FCA 1493

FEDERAL COURT OF AUSTRALIA

Xie v Immigration Department [1999] FCA 1493

IMMIGRATION – application for declaration of entitlement to Bridging Visa – whether any applications by applicant for an entry permit had "not been finally determined" – whether applicant entitled to Bridging Visa under Regulation 10 of the Migration Reform (Transitional Provisions) 1994 Regulations.

XIE v IMMIGRATION DEPARTMENT WG 172 of 1998 CARR J 29 OCTOBER 1999 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WG 172 OF 1998

BETWEEN: XIE WEI MING

Applicant

AND: IMMIGRATION DEPARTMENT

Respondent

JUDGE: CARR J

DATE OF ORDER: 29 OCTOBER 1999

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs including any reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WG 172 OF 1998

BETWEEN: XIE WEI MING

Applicant

AND: IMMIGRATION DEPARTMENT

Respondent

JUDGE: CARR J

DATE: 29 OCTOBER 1999

PLACE: PERTH

REASONS FOR JUDGMENT

Introduction 1 By his application, as amended at trial, the applicant seeks a declaration that he held as at 16 April 1998 (when he was taken into detention at his request by the respondent), and continues to hold, a Bridging Visa Sub-Class C ("the Bridging Visa"), in particular by the operation of Regulation 10 of the Migration Reform (Transitional Provisions) 1994 Regulations ("the Transitional Regulations"). That regulation relevantly provided that a non-citizen in Australia who was in Australia immediately before 1 September 1994 and had applied for an entry permit on or after 19 December 1989 and before 1 September 1994 being an application that "has not been finally determined", was taken to have been granted a Bridging Visa of one or other of the classes identified in that regulation. The applicant's case is that he satisfies the requirements of Regulation 10. He claims that he had applied for three entry permits on 18 January 1990 and a further entry permit on 8 July 1993 and that none of them had been finally determined before 1 September 1994. The applicant lodged his application without legal assistance. I shall refer to the respondent as if it were the Minister for Immigration and Multicultural Affairs.