Chu Kin Shing v Minister for Immigration & Ethnic Affairs

[1987] FCA 811

I N THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT R E G I S T R Y No. G308 o f 1987

GENERAL DIVISION

BETWEEN:	C H U	K I N	S H I N G
A p p l i c a n t

AND : THE M I N I S T E R OF STATE FOR

IMMIGRATION	AND	E T H N I C
AFFAIRS

Respondent

1 0 J u l y 1 9 8 7

REASONS FOR J U D G M E N T

LOCKHART J.

T h i s is a n a p p l i c a t i o n €or i n t e r l o c u t o r y i n j u n c t i v e r e l i e f .

The ev idence wh ich I a c c e p t f o r p r e s e n t l y r e l e v a n t p u r p o s e s , i s t h a t

t h e a p p l i c a n t e n t e r e d A u s t r a l i a o n 2 5 December 1986 a s t h e h o l d e r o f a

V i s i t o r ' s Visa and was g r a n t e d a t e m p o r a r y p e r m i t for a s t a y of t h r e e

m o n t h s s u b j e c t t o c e r t a i n c o n d i t i o n s . Upon t h e e x p i r a t i o n of t h a t

permit n o f u r t h e r permit was s o u g h t s u c h t h a t t h e a p p l i c a n t was when

a r r e s t e d a n d is now a p r o h i b i t e d n o n - c i t i z e n p u r s u a n t t o s u b - s . 7 ( 3 )

o f t h e M i g r a t i o n Act 1958.

T h e a p p l i c a n t was l o c a t e d a t Nowra a n d w a s a r r e s t e d b y

o f f i c e r s of t h e D e p a r t m e n t of I m m i g r a t i o n a n d E t h n i c A f a i r s o n 2 4 J u n e

t h i s y e a r . H e h a d , t h e r e f o r e , o v e r s t a y e d h i s l e g a l r i g h t t o b e h e r e

by a p e r i o d o f some t h r e e m o n t h s o r t h e r e a b o u t s .

The evidence that I have at the moment in support of the application for an interlocutory injuction pending a final hearing to prevent the deportation of the applicant, consists of the affidavit of the applicant's solicitor, Mr. N.L.A. Barlow, who has appeared for the applicant in these proceedings and two affidavits have been sworn by officers of the Department, a Mr. Duncan and a Mr. Muirhead. I need

not refer to those affidavits in detail although I am told the

officers are available, if necessary, for cross-examination today, as

is Mr. Barlow.

I took the view earlier today that it was not appropriate to allow cross-examination at this stage of the case as I would be asked to rule on matters of credit and reliability. It is well established that in interlocutory hearings courts should refrain from making such findings especially as they may be dispositive in substance of the case as a whole at a final hearing. This case is arguably in that category.

Mr. Barlow's affidavit deposes to the fact that on Tuesday, 30 June 1987 , having received instructions during the previous weekend from people who had the applicant's interests at heart in Australia, he telephoned the Belconnen Remand Centre in Canberra where the applicant was being held after h i s arrest on 2 4 June 1987 . He was told to get in touch with a Mr. Muirhead, a senior officer of the Department. He telephoned Mr. Muirhead. In that conversation Mr. Barlow said that, amongst other things, he had almost completed the applicant's application for resident status and he requested that the Department do nothing about deporting or ordering the deportation of the applicant until the application was received by the Department.

3 .

Mr. Barlow alleges that Mr. Muirhead said that Mr. Barlow should

ensure the application and any submissions were to hand by 3 July 1987 as the matter would be going to the Delegate for a decision soon after that day.

It appears that the deportation order was made on 1 July 1987 by the Delegate of the Minister. Mr. Barlow then telephoned Mr.

Muirhead and protested at what had happened. Mr. Muirhead does not specifically deny the terms of any conversation he may have had with Mr. Barlow although I am informed by counsel that he intended what was said in his affidavit, as did Mr. Duncan in his affidavit, to be by way of denial of certain material matters that Mr. Barlow has deposed to. Mr. Muirhead and Mr. Duncan both deposed to conversations with Mr. Barlow at different times on 30 June 1987; and in the case of Mr. Muirhead again on 1 July. They do give different versions of material events to what Mr. Barlow has sworn in his affidavit.

There is, therefore, a conflict in the evidence of these three gentlemen, Mr. Barlow on the one hand and Mr. Muirhead and Mr. Duncan on the other, as to what was said in important telephone

conversations. In my view, if Mr. Barlow’s version is correct, it would follow that the Department made its submission to the Delegate

of the Minister after Mr. Muirhead had given an assurance to Mr.

Barlow that there would be no action on the deportation order until at least 3 July 1987 and that any submissions given to the Department by Mr. Barlow in the meantime in support of the application for resident status would be considered.

4.

If this be the case then the applicant had, through his solicitor, made it plain to the Department that he wished to make submissions with respect to any proposed deportation and with respect to an application for resident status. The Department, on this

hypothesis, then proceeded to submit to the Delegate material which

made no reference to these matters.

There would undoubtedly be a serious question to be tried on the final hearing as to whether, in those circumstances, there was a denial of natural justice to the applicant relating to the making of the deportation order. However, this assumes that any conflict of evidence is ultimately resolved in Mr. Barlow's favour. As I say I do not intend to resolve these issues today so that his client has the benefit of this.

On the assumption that the evidence of Mr. Muirhead and Mr. Duncan is accepted there is, although less strong, a basis on which a serious question to be tried can be based. There is a serious question to be tried in that on their version of events Mr. Barlow had informed the Department on 30 June 1987 that he wished to make representations to the Department in support of his client for the purposes of both an application in support of resident status and for release from custody. Although on that version, Mr. Barlow had said that he would, in confirmation of that, send by facsimile transmission to the Department in Canberra a message which was, on the evidence, not sent. Nevertheless the Department was on notice that a solicitor for the applicant had stated that he did wish to make submissions in relation to those two matters.

5.

All of these events occurred within a very short period of

time. On the evidence presently before me, it appears that on 30 June

1 9 8 7 the submission went from the Department's offices to the

Minister's Delegate, was determined by the Delegate on 1 July 1 9 8 7 who mad-e a deportation order and there was nothing, as it seems at the moment, before the Delegate to suggest that there had been any

communication by the applicant or his solicitor to the Department

which, on any view of the facts, did in fact take place on 30 June

1 9 8 7 .

This does give rise to a serious question to be tried on the

basis of denial of natural justice.

On the question of balance of convenience there has been little said in the parties' submissions. However, since the matter can be disposed of on a final basis the week after next, and because the matter involves the issues that it does, which are not only vital

to the applicant but are vital to the interests of this nation, I

think it is appropriate to grant interlocutory injunctive relief.

Mr. Barlow seeks an order that his client be released from custody in the meantime. The applicant has, since his apprehension on 2 4 June 1 9 8 7 , spent an initial period in the Belconnen Remand Centre and, more recently, at the Villawood Detention Centre in Sydney. It has been said on his behalf that he should be released from custody in the meantime because he has relatives who conduct a restaurant

business in Nowra, New South Wales, with whom the applicant could

reside and indeed would perform duties there for them. It has been said that he will submit to conditions such as the reporting to local

6.

police on some appropriate basis and that he will not disappear or merge into the community as a whole. Against that is the fact that he is a prohibited non-citizen and, as has been said in many cases, prima facie, the policy of this country's laws is that in those circumstances the person concerned should remain in custody. However, that, of course, is only a starting point and there are undoubtedly cases where persons ought to be released from custody pending the final hearing of their cases.

Although the applicant overstayed his temporary entry permit by a short time, it was nevertheless a deliberate overstaying of his permit. He did not surrender himself voluntarily to the authorities. He was arrested by the authorities and then placed in custody. I am satisfied that, although I have found a serious question to be tried, the applicant should not be released from custody pending the final resolution of his case.

Accordingly, I dismiss the application for release from

custody.

The orders I make are as follows:

or cause to be deported, the applicant;

the respondent, the Minister for Immigration and Ethnic further order, deport or take any steps to deport

the applicant file and serve any further affidavits upon which he proposes to rely, either in chief or in rebuttal of

7.

any o r e i t h e r o f t h e a f f i d a v i t s t h a t h a v e b e e n f i l e d i n C o u r t

t h i s m o r n i n g o n b e h a l f of t h e r e s p o n d e n t , o n o r b e f o r e 1 5

J u l y 1 9 8 7 ;

t h e r e s p o n d e n t f i l e a n d s e r v e a n y f u r t h e r a f f i d a v i t s u p o n

which he may seek t o r e l y o n o r b e f o r e 20 J u l y 1 9 8 7 ;

t h e a p p l i c a n t i s s u e a n d s e r v e a n y s u b p o e n a s n o t l a t e r t h a n 1 7

J u l y	1 9 8 7 ;	a n d
t h e	m a t t e r	b e s p e c i a l l y f i x e d f o r h e a r i n g o n 2 1 J u l y 1 9 8 7 .