FEDERAL COURT OF AUSTRALIA
Dong v Minister for Immigration and Citizenship [2009] FCA 751
Migration Act 1958 (Cth) s 501(2)
TAN THANH DONG v MINISTER FOR IMMIGRATION & CITIZENSHIP
NSD 376 of 2009
EMMETT J
20 MAY 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 376 of 2009
BETWEEN: TAN THANH DONG
Applicant
AND: MINISTER FOR IMMIGRATION & CITIZENSHIP
Respondent
JUDGE:
EMMETT J
DATE OF ORDER:
20 MAY 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave be granted to the Applicant to file and serve an amended application seeking judicial review of the decision of the Administrative Appeals Tribunal of 11 September 2008 together with an application for an extension of time within which to seek such review.
2.Any such amended application be filed no later than 3 June 2009 together with an affidavit setting out any evidence upon which the applicant wishes to rely including any grounds on which an extension of time should be given.
3.The Minister give to the applicant as soon as possible any information available to him regarding pro bono legal representation.
4.The proceeding be listed for directions on 10 June 2009.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 376 of 2009
BETWEEN: TAN THANH DONG
Applicant
AND: MINISTER FOR IMMIGRATION & CITIZENSHIP
Respondent
JUDGE:
EMMETT J
DATE:
20 MAY 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
In this proceeding the applicant seeks an order that he be released from detention under the Migration Act 1958 (Cth) (the Migration Act) on the basis that his detention is unlawful. Upon brief examination of the material it seems to me that the application is misconceived. The applicant first entered Australia as the holder of a Permanent Residence Refugee Visa. Between 1994 and 1996 he departed and returned to Australia on several occasions on that visa. On 22 March 2000 the applicant was granted a Five Year Resident Return visa (Resident Return Visa). In 2000 and 2001 he departed and returned to Australia on several occasions on that visa.
However, on 7 November 2007, the applicant was given notice of intention to consider cancellation of his Resident Return Visa, pursuant to s 501(2) of the Migration Act. On 6 June 2008 the applicant’s Resident Return Visa was cancelled by a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), pursuant to s 501(2), on the basis that he did not pass the character test due to his extensive criminal history. On 20 June 2008, following the cancellation of his visa, the applicant was detained pursuant to s 189 of the Migration Act.
On 26 June 2009 the applicant sought review of the delegate’s cancellation decision in the Administrative Appeals Tribunal (the Tribunal). On 11 September 2008 the Tribunal affirmed the delegate’s cancellation decision. The applicant then made an application for a Protection (Class XA) visa, which was refused on 9 December 2008. On 16 December 2008 the applicant applied to the Refugee Review Tribunal for review of the refusal decision of 9 December 2008 and on 15 January 2009 that tribunal affirmed the refusal decision.
This proceeding was commenced on 1 May 2009. It is therefore out of time insofar as it sought to obtain judicial review of the decision of the Tribunal. It is also out of time insofar as it sought to seek review of the decision of the Refugee Review Tribunal. In addition, this Court has no jurisdiction to deal with review of the Refugee Review Tribunal’s decision.
The application of 1 May 2009 is uninformative as to the grounds upon which the applicant seeks to be released from detention. However, in an affidavit filed in support of the application the applicant complains about an error on the part of the Tribunal in describing his visa. In its reasons of 11 September 2008 the Tribunal described the applicant as a Vietnamese army deserter, who was granted permanent residence in Australia as the holder of a refugee visa. The Tribunal then briefly described the history of the applicant in Australia, saying that he first arrived in Australia in 1985 and that from 1987 onwards he has engaged in criminal activity.
The Tribunal records that, as a result of conviction and sentence in the District Court of South Australia at Adelaide, the Minister cancelled the applicant’s visa, pursuant to s 501(2) of the Migration Act. In his affidavit the applicant complains that the Tribunal described him as the holder of a refugee visa and says that the Tribunal failed to describe his visa correctly and thereby failed to determine correctly a jurisdictional fact precedent to the exercise of its power. He says that a mis-description of the visa, that is the subject of cancellation, is an error of law and that the result of that error is that the Tribunal made no decision to cancel his visa and as there is no decision to cancel his visa, the applicant is unlawfully held in detention. The affidavit asserts that a writ of habeas corpus or an order in the nature of such a writ should be granted for his release.
A basic difficulty with the applicant’s contention is that, while the Tribunal describes him as having been granted permanent residence in Australia as the holder of a refugee visa, the Tribunal does not actually say that the visa that has been cancelled was the refugee visa. One might assume that the material before the Tribunal disclosed that the visa that had been cancelled by the Minister’s delegate was in fact the Resident Return Visa. It may be, however, that the applicant does seek to impugn the decision of the Tribunal on the basis briefly outlined in his affidavit. In the circumstances, I propose to grant him leave to file an amended application seeking judicial review of the Tribunal’s decision and an application for an extension of time within which to seek that review.
The Minister has informed the Court that, if such an amended application is filed, steps will not be taken to remove the applicant from Australia, so long as this proceeding is prosecuted with diligence and is given an early hearing.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 20 May 2009
The Applicant appeared in person Solicitor for the Respondent: Clayton Utz
Date of Hearing: 20 May 2009 Date of Judgment: 20 May 2009
- AGLC
- Dong v Minister for Immigration and Citizenship [2009] FCA 751
- Case
- [2009] FCA 751
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the applicant's application for judicial review was timely, and whether the tribunal's misdescription of the visa amounted to an error of law that could render the detention unlawful. The court found that the application was out of time both in terms of seeking judicial review of the tribunal's decision and in seeking review of the Refugee Review Tribunal's decision, and that the court did not have jurisdiction to review the Refugee Review Tribunal's decision. Moreover, the court held that the misdescription of the visa did not constitute an error of law sufficient to render the tribunal's decision unlawful. Instead, the court found the application misconceived and lacking in sufficient grounds.
The court's reasoning was based on the jurisdictional constraints imposed by the Migration Act and the timeliness of the application for judicial review. The applicant's contention that the tribunal's misdescription of his visa was an error of law was rejected as the court found that it did not affect the tribunal's decision to cancel the visa. The court emphasised that the applicant needed to provide clear grounds for his application and that the misdescription did not undermine the validity of the tribunal's decision. Consequently, the court dismissed the application but granted the applicant leave to file an amended application and to seek an extension of time within which to seek judicial review of the tribunal's decision. The court also directed that the Minister provide information on pro bono legal representation to the applicant. The proceeding was listed for directions on 10 June 2009 to manage the amended application.
Orders
Orders of the court
1. Leave be granted to the Applicant to file and serve an amended application seeking judicial review of the decision of the Administrative Appeals Tribunal of 11 September 2008 together with an application for an extension of time within which to seek such review.
2. Any such amended application be filed no later than 3 June 2009 together with an affidavit setting out any evidence upon which the applicant wishes to rely including any grounds on which an extension of time should be given.
3. The Minister give to the applicant as soon as possible any information available to him regarding pro bono legal representation.
4. The proceeding be listed for directions on 10 June 2009.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In this proceeding the applicant seeks an order that he be released from detention under the Migration Act 1958 (Cth) (the Migration Act) on the basis that his detention is unlawful. Upon brief examination of the material it seems to me that the application is misconceived. The applicant first entered Australia as the holder of a Permanent Residence Refugee Visa. Between 1994 and 1996 he departed and returned to Australia on several occasions on that visa. On 22 March 2000 the applicant was granted a Five Year Resident Return visa (Resident Return Visa). In 2000 and 2001 he departed and returned to Australia on several occasions on that visa. However, on 7 November 2007, the applicant was given notice of intention to consider cancellation of his Resident Return Visa, pursuant to s 501(2) of the Migration Act. On 6 June 2008 the applicant’s Resident Return Visa was cancelled by a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), pursuant to s 501(2), on the basis that he did not pass the character test due to his extensive criminal history. On 20 June 2008, following the cancellation of his visa, the applicant was detained pursuant to s 189 of the Migration Act. On 26 June 2009 the applicant sought review of the delegate’s cancellation decision in the Administrative Appeals Tribunal (the Tribunal). On 11 September 2008 the Tribunal affirmed the delegate’s cancellation decision. The applicant then made an application for a Protection (Class XA) visa, which was refused on 9 December 2008. On 16 December 2008 the applicant applied to the Refugee Review Tribunal for review of the refusal decision of 9 December 2008 and on 15 January 2009 that tribunal affirmed the refusal decision. This proceeding was commenced on 1 May 2009. It is therefore out of time insofar as it sought to obtain judicial review of the decision of the Tribunal. It is also out of time insofar as it sought to seek review of the decision of the Refugee Review Tribunal. In addition, this Court has no jurisdiction to deal with review of the Refugee Review Tribunal’s decision. The application of 1 May 2009 is uninformative as to the grounds upon which the applicant seeks to be released from detention. However, in an affidavit filed in support of the application the applicant complains about an error on the part of the Tribunal in describing his visa. In its reasons of 11 September 2008 the Tribunal described the applicant as a Vietnamese army deserter, who was granted permanent residence in Australia as the holder of a refugee visa. The Tribunal then briefly described the history of the applicant in Australia, saying that he first arrived in Australia in 1985 and that from 1987 onwards he has engaged in criminal activity. The Tribunal records that, as a result of conviction and sentence in the District Court of South Australia at Adelaide, the Minister cancelled the applicant’s visa, pursuant to s 501(2) of the Migration Act. In his affidavit the applicant complains that the Tribunal described him as the holder of a refugee visa and says that the Tribunal failed to describe his visa correctly and thereby failed to determine correctly a jurisdictional fact precedent to the exercise of its power. He says that a mis-description of the visa, that is the subject of cancellation, is an error of law and that the result of that error is that the Tribunal made no decision to cancel his visa and as there is no decision to cancel his visa, the applicant is unlawfully held in detention. The affidavit asserts that a writ of habeas corpus or an order in the nature of such a writ should be granted for his release.