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Halmi v Minister for Immigration and Multicultural Affairs

Halmi v Minister for Immigration and Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA
Halmi v Minister for Immigration & Multicultural Affairs [1999] FCA 1438
MIGRATION – application for interim relief under s 482 – whether lack of legal representation satisfies the purpose of s 482 of “securing the effectiveness of the hearing and determination of the appeal” – whether Court has power to stay a decision of the Minister to revoke a visa – whether s 196(3) precludes stay order – whether applicant has an arguable case.
Migration Act 1958 (Cth) ss 196(3), 482(3), 501
Halmi v Minister for Immigration and Multicultural Affairs [1998] FCA 50 cited
Lu v Minister for Immigration and Multicultural Affairs [1998] FCA 1723 cited
Dietrich v the Queen (1992) 177 CLR 292 cited
New South Wales v Canellis (1994) 124 ALR 513 cited
Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 cited
Long v Minister for Immigration and Multicultural Affairs [1999] FCA 233 cited
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 cited
Reg. v Secretary of State for Education and Science [1991] 1 QB 558 cited
Abebe v Commonwealth (1999) 73 ALJR 584 cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited

IOAN DOREL HALMI v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1132 OF 1999
HILL J
22 OCTOBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1132 OF 1999

BETWEEN:

IOAN DOREL HALMI
Applicant

AND:

MINISTER FOR IMMIGATION AND
MULTICULTURAL AFFAIRS
Respondent

JUDGE:

HILL J

DATE OF ORDER:

22 OCTOBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for interim relief be dismissed.

2.Costs be reserved pending the hearing of the application for judicial review.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1132 OF 1999

BETWEEN:

IOAN DOREL HALMI
Applicant

AND:

MINISTER FOR IMMIGATION AND
MULTICULTURAL AFFAIRS
Respondent

JUDGE:

HILL J

DATE:

22 OCTOBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The Applicant, Mr Halmi, has applied to the Court for judicial review of a decision of the Respondent Minister for Immigration and Multicultural Affairs, (“the Minister”) acting under s 501 of the Migration Act 1958 (“the Act”) to cancel the Permanent Resident Visa (East European Program) which had been issued to him, it would seem, on his arrival in Australia on 15 July 1988.
A consequence of the cancellation is that Mr Halmi became an unlawful non-citizen liable to be detained under s 189 of the Act. He was taken into custody on 28 September 1999 and is presently held at the New South Wales Corrective Services facility at Silverwater. He also became liable to be deported. By force of s 196(1) of the Act an unlawful non-citizen is required to be kept in immigration detention until removed, deported or granted a visa. Subsection (3) of the same section provides:
“To avoid doubt, subsection (1) prevents…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 1438
Decision Date: 22 OCTOBER 1999

CaseChat Overview and Summary

The case of Halmi v Minister for Immigration and Multicultural Affairs involved Mr Halmi, an Australian permanent resident who had been convicted of drug-related offences, seeking an injunction to prevent his deportation. The Minister opposed the relief sought by Mr Halmi. The primary legal issue before the court was whether a decision to revoke a visa could be stayed under the relevant provisions of the Migration Act. The court also considered whether the stay of a visa revocation decision would be ineffective given the provisions of section 196(3) of the Act.

The court held that a stay of a visa revocation decision could be granted under the provisions of section 482(2) of the Act, as long as the circumstances prescribed by that section were met. The court disagreed with the Minister's argument that a stay would be ineffective, noting that a stay would operate to suspend the decision until the challenge to it was finally determined. The court also considered the interplay between section 482(2) and section 196(3) of the Act, concluding that the latter provision did not preclude the making of a stay order in the present circumstances. The court found that the application for interim relief was not substantiated as it did not meet the criteria set out in section 482(2) of the Act.

In light of the above, the court dismissed the application for interim relief and reserved costs pending the hearing of the application for judicial review. The court did not find it necessary to consider the possible presumption raised by Dowsett J in any construction of section 482, as the application did not meet the jurisdictional criteria set out in the Act.

Orders

Orders of the court

1. The application for interim relief be dismissed.

2. Costs be reserved pending the hearing of the application for judicial review.

Background

Background to the litigation

By way of interlocutory relief Mr Halmi seeks an injunction restraining the Minister from deporting him pending the review by this Court. He seeks also a stay of the decision to revoke the order, or alternatively an order that the Minister grant to him a visa of a kind such as to allow him to live at his home and continue with his employment until the review has been determined. The Minister has given an undertaking to the Court not to deport Mr Halmi. He opposes the grant of the remaining interim relief sought.Background The present application is the third application between the parties to be filed in the Court. The summary of facts set out below is taken from decision of Wilcox J in the first proceeding between the parties in this Court, and from the reasons of Dr Gerber in the Administrative Appeals Tribunal in both of which Mr Halmi was successful and which gave rise to the second proceedings in this Court brought by the Minister by way of an appeal from the decision of Dr Gerber. Mr Halmi was born in Romania on 7 December 1959. His parents were “ethnic Hungarians”. Mr Halmi claimed to have experienced discrimination in Romania because of his ethnicity. He endeavoured to cross into Hungary but was unsuccessful, returned to Romania, and was beaten and fined. A second attempt to enter Hungary also failed. This time he claimed to have been beaten and was sentenced to two years imprisonment. He served 14 months. A third attempt likewise failed and resulted in another gaol term which lasted five months. Finally in March 1988 he crossed into Yugoslavia and applied to migrate to Australia. The officer of the Department of Immigration and Ethnic Affairs, who interviewed him, formed the view that he had a well-founded fear of persecution if returned to Romania and was thus entitled to refugee status. He was granted a personal travel certificate by the United Nations High Commission for Refugees on 5 July 1988 and entered Australia as a permanent resident on 15 July 1988 under the East European Refugee Program. In Australia he became addicted to heroin; was apprehended and charged on 21 May 1989 with supply of a prohibited drug, heroin. The quantity in question was either 62.3 grams of a substance which contained heroin or the same amount of pure heroin – the evidence before Dr Gerber was not clear about this. Suffice it to say that the quantity was large and the offence a serious one. He pleaded guilty to the offence and was sentenced to a minimum term of 18 months and an additional term of five months to commence on the day he was apprehended. The sentencing judge (Barbour DCJ) stated that the prospects of his rehabilitation and a lesser degree of participation in the drug trade than a co-accused were reflected in the “leniency” of the sentence. Whilst in custody he was convicted of offering a bribe and of possession of a small quantity of heroin. He was fined $1000 and $500 respectively for these offences. Mr Halmi obtained a Romanian passport and returned to that country and remained overseas for almost a year. He apparently experienced no problems while overseas. While in Romania he married his present wife, an Australian citizen, in July 1992. They returned to Australia and had a child born in this country on 6 February 1994.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HILL J

Again it seems that no evidence was directed in the case at the question why it was necessary for the preparation or determination of the application for review that the applicant be at liberty. The only matters relied on were matters which went to family circumstances but did not fall within the language of s 482(2). The application was accordingly refused. In the course of the judgment his Honour made the following further comment:“There is the possibility that it could be argued s 482 is to be construed in the context of section 196 and in particular section 196 subs (3). The argument could run that if an order for a stay was made under subs 482(3), it could not be made in circumstances where it would have the effect prohibited by subs 196(3). That issue has not been argued before me and I express no opinion on it. Nor do I consider it necessary in this matter to have in mind any possible presumption such as that raised by Dowsett J in any construction of s 482 to which I must go in resolving this motion.”Can a decision to revoke a visa be stayed? In my view the submission made on behalf of the Minister that a stay of a decision to revoke a visa is in all circumstances ineffective, because once the decision has been made the visa has been revoked and the Court has no power to grant one is misconceived. The Court has jurisdiction to grant a stay in the circumstances which s 482(2) prescribes. If that jurisdiction is enlivened the Court may stay a revocation of a visa. A stay operates in such circumstances as an order that the decision not take effect until the challenge has finally been determined. As Glidewell LJ, with whose reasons Taylor LJ and Sir George Waller agreed, said in Reg v Secretary of State for Education and Science [1991] 1 QB 558 at 562-3 an order that a decision not take effect until determination of a judicial review challenge is correctly described as a stay (see too per Burchett J in Msilanga at 185). The more substantial question is not whether a stay would, for this reason, be futile, but rather whether the provisions of s 196(3) preclude the making of such an order in the present circumstances. There is no doubt that s 196(3) was intended to preclude an application being made to the Court to release an unlawful non-citizen who has been detained under s 189 of the Act Mr Halmi was detained under that section. Absent the decision to revoke his visa being set at naught, or suspended, the Court would clearly have no power to make an order releasing him. However, it is likewise true that if the Court were to set aside the decision to revoke the visa, the detention would be unlawful and to continue to detain an applicant would render the Minister liable to damages. It would be strange that the Court could not, in such circumstance make an order for a release, merely because the original detention came about under s 189. If the Court’s decision operated ab initio to revoke the decision, then it may be argued that the matter is dealt with in s 196(2) which provides:“To avoid doubt, subsection (1) does not prevent the release from immigration detention of a lawful non-citizen.”However subs (2) is merely to avoid doubt – I would think that the result would have followed for the reason I have already given.

Ratio Decidendi

Legal Principle Established

Established by: HILL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1132 OF 1999

BETWEEN:	IOAN DOREL HALMI Applicant
AND:	MINISTER FOR IMMIGATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	HILL J
DATE OF ORDER:	22 OCTOBER 1999
WHERE MADE:	SYDNEY

JUDGE:	HILL J
DATE:	22 OCTOBER 1999
PLACE:	SYDNEY