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1 The appellant is a citizen of the People's Republic of China. He first arrived in Australia on 27 December 1989 as the holder of a Student Visa Class H33 which expired on 7 August 1990. He lodged an application for refugee status on 7 August 1990 and his spouse lodged a separate application for refugee status, which included the appellant as a secondary applicant, on 13 November 1991. The appellant's application for refugee status was refused on 17 March 1993 and he did not seek review of that refusal. The spouse's application was refused on 10 May 1993 and an application for review was lodged with the Refugee Review Tribunal (RRT). The RRT affirmed the decision on 24 September 1993. However, the appellant and his spouse had departed Australia prior to this on 22 September 1993. On 21 November 1996 the appellant returned to Australia as the holder of a Business (Short Stay) Visa Subclass 456 which expired on 21 December 1996. He was not accompanied by his spouse or child on that occasion. On 23 June 1997 he lodged an application for a Business (Long Stay) Visa Sub-class 457 but this was refused on 28 November 1997. A review application was lodged on 31 December 1997 but was not accepted as it was out of time.

Ji v Minister for Immigration & Multicultural Affairs [2002] FCAFC 33 (27 F

Ji v Minister for Immigration & Multicultural Affairs [2002] FCAFC 33 (27 February 2002); [2002] FCA 166
Last Updated: 6 May 2002


Ji v Minister for Immigration & Multicultural Affairs [2002] FCAFC 33
Ji v Minister for Immigration & Multicultural Affairs [2002] FCA 166



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Ji v Minister for Immigration & Multicultural Affairs [2002] FCA 166


YONG CHUN JI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 762 OF 2001

SUNDBERG, MARSHALL & WEINBERG JJ

27 FEBRUARY 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA


VICTORIA DISTRICT REGISTRY
V 762 OF 2001



BETWEEN:
YONG CHUN JI

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
SUNDBERG , MARSHALL & WEINBERG JJ

DATE OF ORDER:
27 FEBRUARY 2002

WHERE MADE:
MELBOURNE



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

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 762 OF 2001



BETWEEN:
YONG CHUN JI

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
SUNDBERG, MARSHALL & WEINBERG JJ

DATE:
27 FEBRUARY 2002

PLACE:
MELBOURNE




REASONS FOR JUDGMENT
BACKGROUND

1 The appellant is a citizen of the People's Republic of China. He first arrived in Australia on 27 December 1989 as the holder of a Student Visa Class H33 which expired on 7 August 1990. He lodged an application for refugee status on 7 August 1990 and his spouse lodged a separate application for refugee status, which included the appellant as a secondary applicant, on 13 November 1991. The appellant's application for refugee status was refused on 17 March 1993 and he did not seek review of that refusal. The spouse's application was refused on 10 May 1993 and an application for review was lodged with the Refugee Review Tribunal (RRT). The RRT affirmed the decision on 24 September 1993. However, the appellant and his spouse had departed Australia prior to this on 22 September 1993. On 21 November 1996 the appellant returned to Australia as the holder of a Business (Short Stay) Visa Subclass 456 which expired on 21 December 1996. He was not accompanied by his spouse or child on that occasion. On 23 June 1997 he lodged an application for a Business (Long Stay) Visa Sub-class 457 but this was refused on 28 November 1997. A review application was lodged on 31 December 1997 but was not accepted as it was out of time.

2 On 3 February 1998 the appellant applied for a Resolution of Status (Temporary)(Class UH) visa subclass 850. The application was refused on 22 April 1998 on the basis that the appellant had failed to satisfy the delegate that he met the requirements of cl 850.214 of Sch 2 of the Migration Regulations made under the Migration Act 1958 (the Act). Clause 850.214 requires that:

"(1) The applicant was in Australia for a period that is, or for periods that total, not less than 90% of the period that began on a date when the applicant entered Australia as mentioned in clause 850.212 and ended on the date of the making of the application.
(2) For the purposes of subclause (1), where the applicant was not in Australia for 90% of the period, the Minister may include periods when the applicant was outside Australia if:

(a) the applicant has maintained close business, cultural or personal ties in Australia; and

(b) the Minister is satisfied that compelling or strongly compassionate circumstances exist that explain why the applicant was outside Australia during those periods."

On 19 May 1998 the appellant lodged an application for review with the Migration Internal Review Office (MIRO). The decision of the delegate was affirmed by MIRO on 2 June 1998. An application for review was lodged with the Immigration Review Tribunal (IRT) on 29 June 1998. On 31 May 1999 the IRT ceased to exist and the application was transferred to the Migration Review Tribunal (the Tribunal) on 1 June 1999. The Tribunal affirmed the decision of the Department to refuse the grant of a visa, confirming that the appellant failed to satisfy the requirements of cl 850.214. The appellant then lodged an application for review of the Tribunal's decision on 26 July 2000 which was dismissed by the primary judge on 9 July 2001. His Honour's decision is the subject of this appeal.

PRIMARY JUDGE'S REASONING

3 The primary judge recorded that the issue before him was whether two critical findings made against the appellant involved an error of law or some other reviewable error under Pt 8 of the Act. His Honour noted that since the appellant had been absent from Australia for some 1156 days between 1993 and 1996, the Tribunal was required to form a view on two factual matters relating to that absence. The first was whether the appellant had maintained "close business, cultural or personal ties in Australia" notwithstanding his absence. The second was whether the Tribunal was satisfied that "compelling or strongly compassionate circumstances exist that explain why the applicant was outside Australia" during the relevant period. The Tribunal found against the appellant on both issues. The Tribunal's reasoning on the first issue was expressed as follows:

"The visa applicant in his evidence claimed that he maintained close business contacts with Australia during the time he was in China as a representative for Aust-Asia Appointments International P/L and Australia Products Display Centre P/L. Jack Chang gave evidence that he had a verbal agreement with the visa applicant during this period. The only evidence the visa applicant could produce of this relationship were the offer of employment made in 1997, references from Jack Chang written in 1998 (all these documents date from after the visa applicant's return to Australia in 1996) and copies of Chinese business cards. Jack Chang did not sponsor the visa applicant to Australia in 1996; rather he was sponsored by a real estate company that he had worked for while in China. Given the visa applicant's own evidence about his ongoing employment in two broker firms and a real estate firm while in China during 1993 to 1996 and the evidence of Jack Chang that at most the visa applicant spent 10% of his time working for him in China, the Tribunal finds that his relationship with Jack Chang and his two companies do not amount to `close business ties in Australia'. There is no evidence before the Tribunal that the visa applicant had either close personal or cultural ties in Australia during this period. Accordingly, the Tribunal finds that the visa applicant does not satisfy subclause 850.214(2) and therefore cannot meet subclause 850.214(1)."
The primary judge noted that the issue before the Tribunal involved questions of fact and their evaluation. The evidence established that while the appellant was in China he maintained some business ties in Australia, but the Tribunal concluded they were not "close business ties". The fact that there was evidence on which the Tribunal could have come to a different view did not establish an error of law or other reviewable error since it was open to it on the evidence to reach the conclusion it did.

4 On the second issue the Tribunal said:

"The visa applicant claimed in his submission dated 6 May 1998 that the reason for his departure from Australia in September 1993 was that his mother was very sick and, as a consequence, he had to return to China. He told the Tribunal that his mother's health improved approximately one month after his return and she was now in good health. While the Tribunal accepts that the visa applicant returned to China due to concern about his mother there is no medical or other evidence before the Tribunal establishing that the visa applicant remained in China for over 3 years because of his mother's health. Indeed the visa applicant told the Tribunal that a month after he returned to China his mother's condition improved to the extent that he could commence work in Shanghai and he continued to work throughout the period he was in China. The Tribunal finds that although `compelling or strongly compassionate circumstances' may have existed at the time the visa applicant left Australia, in the absence of evidence about his mother's medical condition during 1993 to 1996 the Tribunal is unable to find that `compelling or strongly compassionate circumstances' exist which explain why the applicant was outside Australia from September 1993 to November 1996."
5 The primary judge noted that in written submissions prepared by counsel for the appellant it was contended that the Tribunal failed to have regard to the fact that his mother was looking after his child and that that was one of the circumstances that enabled him to satisfy the second criterion. In oral submissions before his Honour the appellant indicated that while he was in China he intended and wished to return to Australia, but was not able to do so because he did not have a reason that would support a visa application and it was for that reason that he did not apply to return until 1996. His Honour said that while the Tribunal may have been able to reach a conclusion either way on the second criterion, it was open to it to evaluate the facts as it did and form the view that the criterion was not satisfied. He was of the view that in arriving at its conclusion the Tribunal had not failed to have regard to the matters raised by the appellant in his written and oral submissions:

"on a fair reading of its decision, the Tribunal was prepared to accept that the condition of the applicant's mother was a compassionate circumstance that justified his departure from Australia. It was, however, not satisfied that the other factors relied upon in relation to the period subsequent to the improvement in his mother's health were compelling or strongly compassionate circumstances that justified or explained his absence from Australia for three years."
GROUNDS OF APPEAL

6 The first ground of appeal is:

"The Court below failed to recognise that the Tribunal failed to take into account important evidence that I could not depart from China ...."
The "important evidence" is detailed in a document before us headed My Appeal. The appellant now seems to contend that he was unable to return to Australia for some 1156 days between 1993 and 1996 because to attempt to do so would have revealed to the Chinese government his connections with the pro-democracy movement and resulted in his imprisonment. The appellant claims he was only able to return without arousing suspicion when the Chinese company he worked for required him to do so. This explanation for the appellant's inability to return to Australia was not submitted to either the Tribunal or the primary judge. Accordingly, we need say no more about this ground of review.

7 The second ground of appeal is that "the Immigration Department changed its original decision unfairly". We need not pursue this ground as it does not allege any error on behalf of the court below or even on the part of the Tribunal. The appellant's document My Appeal also contains a raft of other allegations against the Department of Immigration which we need not consider for the same reason.

8 In his document My Appeal, the appellant asserts that:

"When the Department of Immigration refused my 850 application, most of the reasons were unrelated to the conditions for the 850 application and this is a breach of the Immigration Law as the conditions for Category A were applied to Category B."
Although this is a complaint about the conduct of the Department, there is nothing in the material that supports it. For completeness we note that elsewhere in the papers is an assertion by the appellant that pars (a) and (b) of cl 850.214(2) (which the appellant calls Category A and Category B) are not cumulative requirements; that he only needs to satisfy one of them. This is plainly not so.

9 Neither of the grounds of appeal is made out. Although no complaint was made about the primary judge's conclusion as to the Tribunal's findings on the material before it, we are satisfied that his Honour's reasons disclose no appealable error.

CONCLUSION

10 The appeal is dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg, the Honourable Justice Marshall and the Honourable Justice Weinberg.



Associate:

Dated: 27 February 2002

The appellant appeared in person




Counsel for the Respondent:
W Mosley




Solicitor for the Respondent:
Australian Government Solicitor




Date of Hearing:
27 February 2002




Date of Judgment:
27 February 2002

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