Claremont Petroleum NL v Cummings
[1992] FCA 446
•16 JUNE 1992
Re: FAN YONG MIAN
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G71 of 1992
FED No. 446
Immigration
(1992) 28 ALD 171 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)
CATCHWORDS
Immigration - deportation order - subsequent application for refugee status - claim for interlocutory relief staying execution of order pending determination of application - no application for revocation order - no basis for relief.
Migration Act 1958
Dallikavak v. Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98
Minister for Immigration and Ethnic Affairs v. Singh Dhillon (1987) 14 FCR 351
HEARING
PERTH
#DATE 16:6:1992
Counsel for the Applicant: Mr P. Nichols
Solicitors for the Applicant: M. Franconi and Associates
Counsel for the Respondent: Mr P. Macliver
Solicitors for the Respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
The claim for interlocutory relief is dismissed.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Fan Yong Mian is a citizen of the Peoples Republic of China who came to Australia in June 1988 to study English for 7 months. He entered this country under a temporary entry permit issued for that purpose. In September 1988 he returned to China, was divorced from his then wife and placed his two children of the marriage in the care of his brother. On 24 October 1988 he returned to Australia and on 12 December married a Ms Chau. On 10 January 1989 he lodged an application for a permanent entry permit on the ground that he was married to a resident of Australia. His residential address was given as 158 Subiaco Road, Subiaco. On 27 February 1990, he told an officer of the Department of Immigration, Local Government and Ethnic Affairs that his then current address was the same. On 29 June 1990 he made a declaration under the Statutory Declarations Act on a printed form which included the statement that he was then living at 158 Subiaco Road, Subiaco, Perth with his spouse Ai Lien Chau and that the marriage had not been entered into for the purpose of gaining permanent resident status in Australia for himself. On 23 July 1990, he was granted resident status.
On 1 July 1991, Mr Fan was arrested by an officer of the Department as a person reasonably suspected of being an illegal entrant under s.92 of the Act and on 17 July 1991 the Minister ordered, under s.60 of the Act, that he be deported. The Minister contended that the statements as to place of residence and the purpose of his marriage contained in the statutory declaration of 29 June 1990 were false in material particulars.
An application for review of the deportation order was heard by Lee J. who gave judgment on 4 June 1992 dismissing the application. In so doing, his Honour was not satisfied that it had been shown that as at 12 December 1988 Fan and Ms Chau had undergone a form of marriage solely for the purpose of changing Fan's legal status. He did find however, that the only reasonable conclusion open on the material was that Mr Fan had established a place of residence other than the matrimonial home by June 1990. He was satisfied that he took up residence at Armadale in about April 1990 and that as at 29 June 1990 any statement made by him that he lived at 158 Subiaco Road with Ms Chau was false, or at the very least, misleading. It followed, as his Honour concluded, that at 23 July 1990 Fan was an illegal entrant and became liable to an order for deportation pursuant to the power conferred by s.60 of the Migration Act 1958. As to the exercise of the Minister's power to deport Mr Fan, his Honour was satisfied that he took into account only those matters he was required to consider, that there was no substance in an argument that the Minister had applied a rule of policy without regard to the merits of the case or that the decision was wholly unreasonable. Nor was the Minister shown to have erred in law in making the decision he did.
Following the handing down of the decision Mr Fan lodged an application for refugee status in Australia. On 12 June 1992 his solicitors were sent a fax from the Department of Immigration, Local Government and Ethnic Affairs in the following terms:
"The Department wishes to inform you that it will execute the deportation order that was signed by the Minister and validated by the Federal Court on the 04 June 1992.
Therefore, Mr Fan Yong Mian will be deported from Australia, leaving Perth on QF77 on the 17 June 1992 at 8.40am and arriving in Hong Kong at 6.45 pm. He will then travel on CZ306 at 8.30pm arriving in Canton at 8.40pm."
On 15 June 1992, the solicitors for Mr Fan sent a letter to the State Director of the Department in Western Australia requesting the suspension of the deportation order pending the determination of Mr Fan's application for refugee status. On the same day an application was filed in this Court in which Mr Fan claimed against the Minister:
"1. An order pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth.) to review a decision of the Minister for Immigration, Local Government and Ethnic Affairs made on the 17th July, 1991 pursuant to s.60 of the Migration Act 1968 (Cth.) ordering that the applicant be deported from Australia;
2. An injunction restraining the said Minister for Immigration, Local Government and Ethnic Affairs from taking any step to enforce the deportation order hereinbefore described until such time as the Respondent has heard and determined the Applicant's application for Refugee status;"
By way of interlocutory relief, Mr Fan claimed an injunction restraining the Minister from taking any step to enforce the deportation order until the disposal of these proceedings. The application is said, on the face of it, to be brought "on the grounds appearing in the accompanying affidavit".
The affidavit which accompanied the application is that of Brendan John Kelleher, a solicitor with the firm of M. Franconi and Associates, solicitors for Mr Fan. Material facts said to be relevant to Mr Fan's application for refugee status are set out in the affidavit, apparently based on Mr Fan's instruction. In substance he contends that his father was a supporter of the Kuomintang (KMT), that the KMT warred with the communist movement following World War 2 and suffered a defeat but that it continues as the Republic of China on the Island of Taiwan. Mr Fan's father is said to have been ill-treated by the communists and his mother discriminated against in matters of pay and position because of the father's political affiliations. Mr Fan is allegedly denied any right to succeed to his late father's properties which were confiscated, although he was permitted to work for remuneration in a succession of factory and other jobs he was always paid less than all the other works and denied any position other than the lowliest. He eventually started a series of small businesses but was forced to use the names of other persons and to be in partnership with them because any business he started would be confiscated. Mr Fan contends he has been unable to live in China as a normal citizen of that country and is denied the full rights of citizenship, obliged to seek a lower status than other citizens, denied the opportunity to work without harassment, persecution or confiscation and is in constant risk of arrest. He says he was beaten during the cultural revolution and several years before coming to Australia attempted to swim to Hong Kong but was picked up by a patrol boat and kept in detention for some time before being released. He says that upon coming to Australia he remarried and established his present market garden business. Here he is responsible for two children who have rights of residence. The Minister, it is said, has not considered his application for refugee status and by the date of deportation has made it impossible for himself to consider the application thereby frustrating the whole process and determining without a hearing and without consideration whatever right he had to seek refugee status.
Mr Kelleher's affidavit goes on to say that the point upon which relief is sought is a short one. Mr Fan seeks review of the decision relating to deportation so far as is necessary to allow the Minister to properly hear and determine his application for refugee status and therefore his continued residence in this country. It is contended that if he is deported, Mr Fan would be removed to the territory of the Republic of China from which he had extricated himself with difficulty and where he reasonably expects to be confined, to lose his freedom of movement, the confiscation of his possessions and other punishments.
In submissions put before the Court this morning by counsel for Mr Fan, it was said that the application in effect seeks to suspend the operation of the deportation order until the Minister has an opportunity to consider and determine Mr Fan's claim for refugee status. Reliance is placed upon the decisions in Dallikavak v. Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 and Minister for Immigration and Ethnic Affairs v. Singh Dhillon (1987) 14 FCR 351. Both those authorities related to the Act as it stood prior to the 1989 amendments and support the proposition that the execution of a valid deportation order is not subject to judicial review. In the latter case, the Minister was asked to stay his hand in respect of the deportation of Mr Singh Dhillon for long enough to enable him to pursue a proposed civil claim for damages arising from an incident in which Mr Singh Dhillon was shot and suffered injuries as the result of a police raid. In allowing an appeal against a decision staying the execution of the deportation order until after the examination of an Assistant Commissioner of Police in the Supreme Court of New South Wales, Beaumont and Gummow JJ. in their judgment at 357 noted that the Dallikavak case supported the contention that as there was no scope for a decision to suspend a deportation order after it had been made, there was no such decision capable of review. Their Honours said:
"In its terms, s 20(1) (of the Act as it then stood) contemplates, indeed requires that, unless revoked, the deportation order will be complied with. In the present case, no application for revocation of the order was made. True it is that in their correspondence the solicitors for the respondent requested the Minister to stay his hand. But in neither form nor substance should these requests be treated as applications for the revocation of the order. It follows, in our view, that no relevant decision was there involved. The consequence must be that, on this branch of the case, there was no decision under the Act which would be the subject of judicial review under the statute."
The present case is governed by s.63 of the Act which provides:
"63(1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister, after considering the prescribed matters and no other matters, revokes the order, be deported accordingly.
(2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.
(3) If a person who is the subject of a deportation order leaves Australia voluntarily before the order is executed, the person is taken, for the purposes of this Act, to have been deported in accordance with the order."
As in Singh Dhillon, no application for revocation of the order has been made and the validity of the order has not been impugned. Assuming, therefore, that the application could be amended and directed to the execution of the order rather than the order itself, there would still be no basis upon which that execution could be reviewed. There is therefore no basis, in my opinion, upon which I can make an order staying the execution of the deportation order. In any event, I note that the application for refugee status has been lodged some 11 months after the deportation order was made.
The merits of the application appear dubious, particularly having regard to the applicant's return to China in 1988 and his ability to come back to Australia after that revisitation. But whatever the merits of the claim, there is no basis for the order sought and the claim for interlocutory relief will be dismissed.
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