Cuong, L.D. v The Minister for Immigration & Ethnic Affairs

[1985] FCA 420

Re: LONG DAI CUONG
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG 135 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Gray J.

CATCHWORDS

Administrative law - judicial review - application for stay of deportation order - whether applicant be released from custody pending hearing of application.

Administrative Decisions (Judicial Review) Act 1977, s. 5.

Migration Act 1958.

HEARING

MELBOURNE
#DATE 10:7:1985

JUDGE1

On 4th June 1985, this Court made an order that the respondent, the Minister for Immigration and Ethnic Affairs, be restrained from deporting the applicant until the hearing of an application which the applicant by his counsel then undertook to make, pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977. That application under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 was filed on 5th June 1985.

Before the Court today are three notices of motion. The one with which I shall deal first is a notice of motion filed by the respondent Minister, seeking an order that the order of the court made on 4th June be discharged. The basis of that motion seemed to be that the material in support of the application for the injunctive order was inadequate to support it, that the injunctive order was made without notice to the respondent, and that the injunction was granted to continue until the hearing of the application. In other words, no early return date was set for the hearing of an application for an injunction on notice to the respondent.

The notice of motion of the respondent is not accompanied by any affidavit material. I was invited by Mr. Moshinsky for the respondent to consider the applicant's material and certain matters which were put from the bar table. The purpose of the application seemed to be to achieve the result that the applicant could be deported pending the resolution by this Court of his challenge to the validity of a decision refusing to grant him the status of a refugee. In those circumstances it seemed to me that it was inappropriate that, in effect, the subject matter of the litigation should be removed from the jurisdiction before the litigation was completed. Mr. Moshinsky did not press the application. I therefore propose to dismiss that motion.

The next notice of motion was filed on behalf of the applicant, and dated 27th June 1985. It seeks to amend the application under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 to seek review of two other alleged decisions; one is the decision of the respondent not to revoke the deportation decision and the other is the decision of the respondent to implement the deportation decision. After some argument, the parties did seem to be in some measure of agreement that appropriate directions could be made, which would have the effect of placing in the hands of the applicant's legal advisers documents which would indicate whether or not such decisions were made and, if they were, when they were made. It seems to me to be appropriate that the application to amend should be adjourned until such time as those documents are in the possession of the applicant's legal advisers. Although no directions are being made, because both parties now seek that the matter simply be adjourned to a date to be fixed, with liberty to apply, it still seems to me to be appropriate that that motion should be adjourned.

The third notice of motion, also dated 27th June 1985, and also filed on behalf of the applicant, seeks an order that the applicant be released from custody pending the determination of the application. This motion was opposed by the respondent. On the material which has been placed before the Court in the affidavit of the applicant sworn 6th June 1985, it is revealed that the applicant entered Australia illegally in March of 1982; some time after that, in August 1982, he established a de facto relationship with a woman who has two children. He undertook employment in March 1982 and has held the same job since that time, until he was taken into custody, in May of 1985.

On 13th November 1983 the applicant was apprehended by officers of the Department of Immigration. He was released in December 1983, on condition that he report to the Department's office twice-weekly; that obligation was subsequently reduced to once-weekly reporting. At all times the applicant has complied with the reporting requirement and he has co-operated with officers of the department, and with federal police, in giving them information as to the issue of false Thai passports. He has not attempted to disappear into the Australian community, or to avoid contact with officers of the Department of Immigration.

The deportation order was made on 10th September 1984, and the applicant has subsequently taken steps to have himself granted refugee status under the Act.

In circumstances such as this, it does seem to me unlikely that, if released from custody, the applicant would attempt to disappear or to frustrate the operations of the department. It was put by Mr. Moshinsky for the respondent that, the applicant having entered Australia on false papers, the likelihood was all the greater that he would take some similar action in order to remain in or re-enter Australia at some subsequent time. The applicant does appear to have repented of his illegal act in entering Australia on false papers, by co-operating with investigations as to the origins of those papers.

There is also in my view a powerful reason why the applicant should not want to disappear into the Australian community, while his application before this Court is pending. To do so would undoubtedly have detrimental effects upon the outcome of that application. The stability of the applicant's work history and relationship with his de facto wife and her children are also factors which tend to indicate that the applicant may be very likely to observe any requirement to report to officers of the department, and may also be in a situation where his whereabouts are easily ascertainable.

For these reasons I propose to order that the applicant be released from custody pending the hearing and determination of his application. I propose to impose a condition that he report twice-weekly, as was suggested by Mr. Moshinsky.

Mr. Moshinsky also suggested that I should impose a condition that the applicant not work, that is to say, not undertake employment, after his release from custody. The reason for seeking this condition was that for a prohibited non-citizen to undertake employment is apparently an offence under the Migration Act 1958. In my view, the fact that such an offence exists ought to be a sufficient reason for the applicant not to undertake employment, without the imposition of any condition to that effect in any order that I make. The applicant will undoubtedly be advised by his legal advisers as to the position; if he does undertake employment then he may be prosecuted in the normal way. I do not propose, in effect, to add to the burden of penalty for such an offence, by making it a condition of his release that the applicant not undertake any employment.

I therefore make the following orders:

1. The motion the subject of the notice of motion filed by the respondent on 3rd July 1985 is dismissed.

2. The motion for amendment the subject of the notice of motion filed by the applicant on 27th June 1985 is adjourned to a date to be fixed.

3. I order that the applicant be released from custody pending the hearing and determination of the application for judicial review, upon condition that he report to an officer of the Department of Immigration and Ethnic Affairs in Melbourne on each Monday and Thursday during normal office hours.

4. I adjourn the application to a date to be fixed.

5. I reserve liberty to either party to apply on 48 hours' written notice to the other party.

6. I reserve the costs of today.