Le v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 640

FEDERAL COURT OF AUSTRALIA

Le v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 640

Migration Act 1958 (Cth) s 501

Castlemaine Toohey v South Australia (1986) 161 CLR 148

VAN TU LE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W307 of 2002

RD NICHOLSON J
18 JUNE 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W307 OF 2002

BETWEEN:	VAN TU LE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	18 JUNE 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The notice of motion be refused.

2.The respondent not remove the applicant from Australia without giving to the Courts and the applicant 14 days notice of such intention.

3.Within 14 days the respondent file and serve any further affidavits in response to the issues raised in the applicant’s supporting submissions dated 16 June 2003.

4.Within 10 days of compliance with Order 3 the applicant advise the Court of whether a hearing date is required or what other steps are proposed to be taken to advance the application to hearing.

5.Costs of this notice of motion be in the cause.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W307 OF 2002

BETWEEN:	VAN TU LE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	18 JUNE 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On behalf of the applicant a notice of motion was brought seeking to restrain the respondent from continuing to detain the applicant in immigration detention under the Migration Act 1958 (Cth) (‘the Act’) and further to restrain him from removing the applicant from Australia pending the hearing of the appeal or until further order.

2. In relation to this second element counsel for the respondent is presently uninstructed as to whether there is any intention to remove the applicant from Australia but on the other hand is not aware of any such intention.  Nevertheless, I consider that if there were such an intention the Court should be informed of it so I will hold over par 2 pending advice on behalf of the respondent in relation to that aspect. 

3. Returning to the question as to whether the applicant should not be detained, the background circumstances are that he went into detention on 25 October 2002 and on 1 November 2002 filed an application for review of the decision of the Minister leading to his detention. On 15 May 2003, after the applicant had become represented, a substituted application was filed. That expressed the point of grievance of the applicant being the decision of the respondent made on 26 August 2002 in which it was determined to cancel the applicant's subclass BB/155 resident visa pursuant to the provisions of s 501 of the Act.

4. The grounds of the application are expressed to be that the decision was made without jurisdiction and was not authorised by the Act and was accordingly void and of no effect. In support, two contentions are proposed to be made. The first is that the respondent failed to take into account the relevant consideration, namely, the best interests of the applicant's Australian born and naturalised children and, secondly, that the respondent failed to accord natural justice to the applicant and his children in that it did not recognise and give consideration to the interests of the applicant's children to have a continuing and close relationship with the applicant as their father. In that respect the respondent relied on statements from a Departmental officer which were, it is said, to the effect that the applicant no longer had close and continuing contact with his children, which was contrary to the facts.

5. It is well established that the two tests to be applied on the bringing of such an interlocutory application are whether there is a serious issue to be tried and whether the balance of convenience favours the application of the equitable remedy.  They are not unrelated, the first element playing a part in consideration of the second if there is particular strength to it. 

6. The application is brought upon the applicant's undertaking that if he were released he would reside with his former de facto wife, that he would report on certain occasions to the Departmental office and that his former de facto wife would deposit a bond in the sum of $3000 subject to forfeiture. 

7. On the question of whether there is a serious issue to be tried there is before the Court the affidavit of David Blades sworn on 21 November 2002.  Other evidence before the Court filed in support of the applicant are two affidavits each filed on 15 May 2003. 

8. Counsel for the respondent has disputed that there is a serious issue to be tried in the requisite sense.  He has taken the Court in particular to pp 5, 7, 9, 33, 14 and 20 in the affidavit of Mr Blades.  That essentially is taking the Court to aspects of the decision record and submissions by the applicant which were before the decision-maker and referred to in the record.  Counsel for the applicant has also referred to particular aspects; namely, pp 10 to 11 of that record as it appears in the affidavit.  He contends (as he would contend in ultimate argument) that the words that are there used are such as to give rise to the natural justice issue, (the second of the two issues I have identified previously), and that all of the words show that although there was a heading in the record of decision relating to the best interests of the children, the first of the issues previously identified is also arguable. 

9. The real issue raised by this application is what level the arguments have to get to in order to satisfy this first limb of the test.  In Castlemaine Toohey v South Australia (1986) 161 CLR 148 at 153, Mason ACJ summarised the principles governing the grant or refusal of interlocutory injunctions as requiring it to be shown:

   ‘That there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief.’

   It is in that sense that I consider the test should be applied. 

10. The matter is a difficult one.  I am not satisfied that the level of the test is met by the record which is in evidence before me and on which I am asked to judge it.  I am, therefore, not satisfied that the serious issue to be tried is made out in the way contended by counsel for the applicant. 

11. The consequence is that there is no strength to be weighed in favour of the serious issue in the balance of convenience.  The balance of convenience alone cannot carry the day.  There are significant matters in the applicant's favour in that balance.  I accept that since serving his period of incarceration for his offences in 1999 there has been no recidivism.  Those matters are ones which I could have weighed, if I had formed a different view on the preliminary question of whether there are serious questions to be tried, in the way in which that is defined. 

12. As I have said, the matter is not easy to reach a view on.  However, the grant of interlocutory relief has to apply the tests which the law provides and, as I have also said, I am not satisfied, having been taken by submissions from both parties to the relevant passages, that that level is met in this case. 

13. Nevertheless, this applicant has been in detention since 25 October 2002; that is, for actually a longer period than the sentence which he served for his criminal offences.  It is therefore very important that the substantive issues be brought to trial properly as quickly as possible.  Counsel for the respondent has suggested that 14 days be allowed in which the respondent should reply to the submissions of the applicant filed late yesterday.  In my view that would be a maximum period and as quickly as the matter could be dealt with thereafter consistently with the interests of justice, I would find time to hear it.  I do not consider that the applicant should remain in detention for a long period while these issues are resolved. 

14. I would therefore refuse the motion. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice
RD Nicholson.

Associate:

Dated:             25 June 2003

Counsel for the Applicant:	Mr HNH Christie
Solicitor for the Applicant:	Christie & Strbac
Counsel for the Respondent:	Mr MT Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 June 2003
Date of Judgment:	18 June 2003