Xu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1015

FEDERAL COURT OF AUSTRALIA

Xu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1015

ZE XIN XU vMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N609 of 2002 MADGWICK J 9 JULY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N609 of 2002

BETWEEN: ZE XIN XU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 9 JULY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application to restrain the respondent from deporting the applicant is refused. 2. The applicant be provided with every reasonable facility, including the use of a telephone, to make arrangements in respect of moneys owing to him up to and until 4:00pm, Tuesday 9 July 2002. 3. Applicant pay the respondent's costs of this application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N609 of 2002

BETWEEN: ZE XIN XU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 9 JULY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 In this matter the applicant has filed an application seeking a review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Migration Review Tribunal ("the Tribunal") on 29 May 2002. By that decision the Tribunal affirmed a decision of a delegate of the respondent Minister that the applicant was not entitled to the grant of a Bridging Visa E (Class WE) because the applicant did not meet any of the criteria in the relevant subclass including that the applicant was unable to satisfy the Tribunal that he was making, or was the subject of, acceptable arrangements to depart Australia, nor did he have any outstanding application for merits or judicial review. 2 The background, apparently, is that the applicant came to Australia in 1999 on a short stay visitor's visa and a few weeks later made an application for a protection visa, asserting that he was a refugee. The Minister by his delegate refused that application and the Refugee Review Tribunal affirmed the departmental decision on 9 February 2001. The applicant then made a request under s 417 of the Migration Act 1958 (Cth) that the Minister make a more favourable decision in his case than had the Tribunal. The Minister declined to exercise his discretion so to do and since 14 July 2001 the applicant has continued to remain in Australia unlawfully. He was arrested (detained is the legislative euphemism) on 7 May 2002. The applicant then put steps in train to lodge an application for the visa in question which it is convenient to call a Bridging E visa, and ultimately, from custody, lodged an application for a Bridging E visa with the Minister's Department on 14 May 2002. 3 As best I can understand the matter, the applicant's claim is that he accepts that he must, and is prepared to, leave Australia; he is willing to do so voluntarily but has been hampered in this by some delay in obtaining moneys, somewhere in the order of $200,000, due to him from a workers' compensation claim settlement. Further, he claims that in the circumstances of his entitlement to this money but non-receipt of it long after a time when prima facie he should have received it, he should somewhat exceptionally be regarded as the subject of acceptable arrangements to depart Australia. 4 The Tribunal appears however to have quite disbelieved the applicant. The Tribunal Member said that whilst his evidence is that he wishes to depart Australia, the Tribunal did not accept this evidence, noting: "When asked at various times when he wished to leave Australia [the applicant] has given 5 different answers, including that he did not wish to leave Australia. In those circumstances the Tribunal does not accept the visa applicant's evidence that he does not wish to leave Australia." 5 I have indicated, as best I can express it, the only conceivable way in which the case might be put, both before the Tribunal and as put on his behalf by Mr Zhu, a migration agent, who very exceptionally because of the urgency of the matter was granted leave to speak on the applicant's behalf. The applicant's primary concern seems to be that he wishes to bring to fruition what he says are his efforts to get the moneys owing to him by his solicitors. 6 Mr Zhu, the migration agent, affected not to understand my questions when I asked him to indicate what might be the legal error made by the Tribunal. I am not satisfied that he does not understand the matter or my questions. In any event, he has been unable to suggest any arguable legal error. In the light of the Tribunal member's finding of fact, which appears to have some basis in the material before him, I cannot see that, if there were any legal error otherwise in approach, it would be an operative one, such as to attract the intervention of the Court, assuming that the Court would have jurisdiction to intervene. 7 In a case like this, the Court should not be especially slow to intervene to preserve the subject matter of the litigation, namely the ability of the applicant to obtain a visa that would permit him to remain in Australia. If, as the Minister is intending, the applicant is deported this evening, he will not be able to obtain a bridging visa of the kind in question and if, contrary to present indications, he might have a case for showing legal error by the Tribunal of a kind that would persuade the Court to intervene, that would not avail him because he would not be in Australia. 8 Nevertheless, in order to grant interlocutory relief of the kind suggested, namely that I restrain the Minister from deporting the applicant this evening and until Thursday when the matter is listed for directions, there should be some arguable case shown that the litigation has some prospects of success, even if they are only faint. I can, however, see no prospect of success whatsoever. I therefore decline to order the Minister to refrain from deporting the applicant. 9 I am told that the applicant is at Villawood Detention Centre from where he will be removed at 4:00 pm today. I must say it would be desirable, whatever might be thought to be an unattractive disrespect by the applicant for this country's migration laws, that every facility, including the use of a telephone, should be afforded to him to enable him personally to sort out payment of the moneys owing to him by his solicitors. 10 For the applicant's part, common sense would suggest that he consult, by telephone, another lawyer to resolve his problems which would, in all likelihood, have been resolved earlier if he had spent money on a lawyer rather than on Mr Xu, who has been singularly ineffective both in relation to the matter of the moneys due from the solicitor, and before me. 11 The applicant is to pay the respondent's costs of this application. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.