Li, F. v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 786

Re: LI FANG
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G536 of 1991
FED No. 786

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

HEARING

SYDNEY

#DATE 19:9:1991

Counsel and Solicitors : B.J. Knox instructed by
for Applicant Noel Brown and Peter Wainberg

Solicitors : W. Wilson of the Australian
for Respondent: Government Solicitor

JUDGE1

The applicant in the present proceedings, Li Fang, seeks interlocutory relief of two kinds. First, she seeks an order of the court that until further order the respondent Minister for Immigration, Local Government and Ethnic Affairs be restrained from requiring any person to remove the applicant from Australia. Second, she seeks an order that pending the hearing of an application for an order for review, she be released from custody on terms that she reside with her uncle, Mr Li, who is prepared to post a surety of $5000, and that that release be subject to reporting conditions.

1. The present is a somewhat unusual case. The applicant, who is now 33 years of age and a citizen of China, was married to Mr Mai Siu Tong in Canton in China in September 1982. They lived together as man and wife there until 1989 when the husband came to Australia on a tourist visa. Shortly afterwards occurred the events in Tienanmen Square which led to automatic extensions of visas being granted to many Chinese citizens who were then in Australia.

2. In February 1991 the husband applied for a visa for the applicant to come to Australia. He sent to her the necessary application and sponsorship forms and was, so the applicant says at that time at least, phoning her once a week. In due course the applicant undertook a medical examination, sent the forms to the Australian Embassy in Beijing and made application for a visa which was granted on or about 8 September 1991, issued out of the Beijing office of the Australian Embassy.

3. The visa is for a period expiring in 1994. The applicant then made arrangements, so she says, to come to Australia and arrived at Sydney Kingsford Smith Airport on 18 September 1991. At the airport she presented her passport with the visa in it to the immigration officer present at the airport. Subsequently, she says, she was told through an interpreter that her husband did not want her to come to Australia. This was a matter which she says she did not know before she came here and she says further she had never received that advice or notification from her husband or from any other source.

4. By virtue of the decision she made to immigrate to Australia, she severed all contact with her former employer, the China Government Newsagency, and lost all the entitlements she had with the Chinese Government. She has forfeited her identity card, housing and other social entitlements such as food coupons. The applicant says she believes strongly that her marriage to her husband continues and that she wants it to continue and that she has never heard from him or any person on his behalf of any plans for divorce or other separation. It seems that on 4 June 1991, the husband wrote to the Parramatta office of the first respondent informing that office that he had decided to terminate his sponsoring of his wife on the basis, as he said:
   

"That our marriage relationship was already

broken down because of our two years separation."

1. A statutory declaration of the husband in evidence before me reveals that the husband had, since coming to Australia, formed a de facto relationship with a lady he had met in China before he came to Australia and that they had decided to live together in a suburb of Sydney from October 1990. There is some suggestion in the material emanating from an interview with the husband that the de facto is pregnant and further that the husband had written to the wife in China about cancelling her sponsorship and telling her that he was applying for divorce in the near future. That, of course, is totally inconsistent with the evidence of the wife.

2. There is no evidence before me that the Minister ever notified the applicant directly prior to her arrival at the airport of the intention to cancel the visa or of its actual cancellation, although I was told from the bar table that such a letter had been written and for present purposes I will accept that it was. It seems, however, that if such a letter were written it was never received by the applicant, nor for that matter by the Australian Embassy in Beijing who granted the visa in September, notwithstanding the fact that the husband's notification to the Minister was in June of this year.

3. When the applicant was interviewed in the airport she, according to a report before me, denied any knowledge of the husband's intentions, although apparently ultimately admitted she knew about the existence of a girlfriend, but maintained that she was unaware of the lady being in a de facto relationship.

4. The officer at the airport decided to refuse entry and I am told, although it is not in evidence before me, that a stamp indicating the cancellation of the original visa was placed upon the passport. The decision to cancel the visa was probably made at a time considerably earlier than the arrival at the airport, if it be correct that she was notified of the problem by letter to an address in China, which she did not receive. If there was no prior decision then, of course, presumably the decision to cancel the visa was made at the airport itself. The applicant challenges, inter alia, the decision to cancel the visa on a number of grounds.

5. First, it is submitted that the applicant was denied natural justice in that at the time of the cancellation of the visa, if that was a time earlier than her arrival at the airport, she was given no opportunity to deal with the suggestion that her relationship with her husband was at an end. If the decision was made at the airport, then the applicant submits additionally that not only was she given no opportunity to deal with, in any detail, the allegation that her relationship with her husband was at an end, but further she was given no opportunity to contact her husband to enable that explanation to be properly given.

6. The second ground of complaint is that the respondent was obliged in giving a decision on the cancellation of the visa to take into account the rights of the applicant to contact her husband and, of course, ultimately to take proceedings if she so be advised under s.15 of the Family Law Act 1975 (Cth). The third submission that was made on behalf of the applicant was that there had been no cancellation in any event of the visa. It was submitted that a cancellation required a physical cancellation and that there had been no such physical cancellation. Whether there was a physical cancellation of the visa is a matter of fact, which, although denied by the respondents, was not the subject of evidence before me this morning.

7. The present jurisdiction is, of course, interlocutory and in considering whether or not to enjoin the respondent from bringing about the removal of the applicant from Australia, I am obliged to consider whether the applicant has an arguable issue to be tried and, if so, the balance of convenience as between the removal from Australia on the one hand and being permitted to remain in Australia on the other, at least until the outcome of final proceedings. It has been remarked more than once that these two tests are not independent of each other, so that where a weak case exists for example, it would be necessary for an applicant to show a much stronger balance of convenience and so on.

8. The power in the Minister to revoke a visa is a discretionary power and arises under s.26 of the Migration Act 1958 (Cth) as amended ("the Act"). No specific criterion are set out. This does not, however, mean that in exercising the power the principles of procedural fairness may not be relevant, depending upon the circumstances of a particular case.

9. Although the respondent initially made a submission that the rules of natural justice could have no application that submission was, as I understand it, withdrawn in the course of argument. As is obvious from what I have said already, the way the argument develops depends upon whether the decision to cancel the visa was made at some time prior to the applicant arriving at the airport, or whether it was a decision made at the airport itself. If the former, then it is quite clear that the applicant herself was given no opportunity to address any issue at all. The visa was presumably then cancelled without reference to her and wholly based upon the evidence from the husband.

10. Of course, it could not be said that that evidence was in any way weak or that it was unreasonable for a decision-maker to act upon it. It is, however, at least arguable that the Minister in acting upon that letter should give the applicant at least some opportunity of responding to the husband's allegation. In not every circumstance where a de facto arrangement exists might it be found that there was not a proper relationship between the spouses. If the decision to cancel the visa was made at the airport then clearly enough the wife was given some opportunity to address it. What she was not given, of course, was the opportunity to speak to her husband. This is not to say that the opportunity to speak to her husband was denied to her. It just, so far as the evidence would suggest, never really arose. Whether the principles of procedural fairness would require the decision-maker to give the applicant an opportunity to discuss matters frankly with her husband is an issue which the applicant wishes to debate and it cannot be said to be wholly without merit in the particular circumstances of this case.

11. It is also at least arguable that a decision-maker must take into account the ability of an applicant to use appropriate procedures to bring about a reconciliation, however the difficulty with the submission really is that it would presuppose that a long period of time would need to elapse before a decision-maker would be in a position to make the final decision to cancel a visa. However, the point is not totally unarguable.

12. The third matter, ultimately, probably involves a question of facts. If the cancellation was in fact noted physically on the applicant's passport at the airport then on any view of the matter the cancellation was complete at that time. It may be possible to argue that cancellation is a process that requires a minimum of formality; it may also be possible to argue that cancellation is a physical act involving some physical notation on the visa. The evidence to resolve any factual dispute is, of course, not before me and there is an issue at least which can be debated about the question of cancellation. It follows from what I have said that there is at least an arguable issue between the parties, particularly in respect of the first matter. The balance of convenience is, of course, overwhelmingly in a case such as the present in favour of permitting the applicant to stay, at least for a short time, pending a quick determination of the issues between the parties.

13. It is only by being permitted to stay in Australia, rather than being removed some two hours after the commencement of this interlocutory hearing, that the applicant will be able to communicate with her husband and fulfil the criterion of natural justice if it be the fact that natural justice requires her to be given the opportunity to speak to her husband. In these circumstances I order that the first respondents be enjoined from requiring any person to remove the applicant from Australia and direct the legal representative of the Minister to communicate that order to the appropriate officers at the airport at which the applicant is presently held in custody.

14. The next application involved an application which in the notice of motion was described as an order requiring the respondents to permit the applicant to enter Australia and grant an entry permit subject to certain conditions. This is not actually the way the case was argued, the matter being argued on the basis that the applicant, pending hearing of the proceedings, be released from custody upon certain conditions. The difference between the two lies not only in the absence of an order that an entry permit be granted, but also upon a consideration of whether an order in the form last mentioned would have the consequence that the applicant entered Australia at all, assuming as I understand to be the fact, that she has been in custody from the time she arrived at Mascot, subsequently went to Villawood and was returned to Mascot this morning.

15. For the respondents it was argued that the court has no power to order that the applicant be released from custody. Shortly put the argument was that the Act sets up a scheme for the control under custody of persons who present themselves at an airport or other entry port without a valid visa. That scheme, inter alia, requires the person to be taken into custody and kept in custody at a proclaimed airport or elsewhere until removed: s.89(1) and (2) of the Act. Relevant to the argument is a subsidiary question of whether, if an order were made that the applicant be released from custody, the applicant would have entered Australia with whatever consequences that would entail in the present circumstances.

16. This is a matter which exercised the attention of Burchett J in Watsana Singthong v The Minister for Immigration and Ethnic Affairs (1988) 18 FCR 486, a case which has been followed on at least two occasions: by Gray J in Kirakos v The Minister for Immigration Local Government and Ethnic Affairs (unreported, 16 October 1990) and more recently by Lee J in Manoher v The Minister for Immigration Local Government and Ethnic Affairs (unreported, 10 May 1991).

17. It has not been suggested that amendments to the Act since the time of the decision in Singthong in any way effect the matter. Although the general issue of the power of the court to order a release from custody where the Act provides for a person to be taken into custody is the subject of an appeal presently pending in the full court of this court, which has been argued but in respect of which judgment has been reserved, the present state of authority is overwhelmingly in favour of the court having such power. It is generally accepted that the power arises out of s.15 of the Administrative Decisions (Judicial Review) Act 1977, or s.16 which is in somewhat wider terms than s.15 but applies only to final orders. If s.16 were the applicable section, then resort will need to be had to the Federal Court of Australia Act 1976 which permits the court to give interlocutory relief of the same kind as otherwise it could give final relief.

18. As I have already indicated, a number of decisions of this court have held that a power to release from custody exists. Singthong is one of such decisions, but the line of authority goes back to the judgment in Unlugenc v The Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569, and indeed earlier than that. In Unlugenc, Lockhart J adopted an earlier test of "special circumstances". His Honour, however, more recently resiled from that view and took the view that such a test was stating the matter too strictly. Rather, all relevant matters should be considered. See Habal v Minister for Immigration Local Government and Ethnic Affairs (unreported, 12 September 1989). This view was one which also commended itself to me as it happens in the same case that Lockhart J also decided subsequently, although at an earlier time in the proceedings. See Habal v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 22 August 1989). Sitting as a judge at first instance, I am of the view that it is appropriate that I follow this earlier line of authority unless I am, at least, persuaded that it is clearly wrong. I am not so persuaded and I would accordingly follow it and find that there is power in the court to order, if the case be an appropriate one, that the applicant be released from custody.

19. The respondent submitted that there was concern that the applicant would not present herself when required for the ultimate hearing but might merge in the community (as the matter is often put). It was said that this concern was based upon the fact that she had already severed her connections with the Peoples Republic of China, that she had come to Australia with an intention of staying here indefinitely and that she had family connections in Australia with her uncle. None of those circumstances seem to me particularly compelling in the present case. The applicant, it is true, has severed connections with China but has nothing in the way of connections with Australia save the uncle. Her English is apparently very poor. She wishes, so it is said, to have the opportunity for counselling with her husband and that in itself suggests that she is unlikely to disappear at least in the short term.

20. The present is somewhat of an exceptional case and indeed whatever the relevant test be, whether it be one of special circumstances or otherwise, it seems to me that there are special circumstances here in that the only way in which the applicant can satisfactorily have the matter out with her husband is if they are able to have some face-to-face contact outside of a detention centre. This is particularly so, of course, if the husband were to agree to a question of counselling.

21. On the other hand, I do not think the situation, even given the reporting conditions which have been suggested and which have been, indeed, offered as undertakings, satisfactorily allow the matter to continue for the long term and for that reason I would readily grant an expedited hearing and will, in due course, hear the parties as to the appropriate directions to be given to ensure that that early hearing proceeds.

22. However, I propose to order that the applicant be released from the custody in which she is presently held, on terms:
    

1. That she reside with Mr Ronnie Li at 333 Connells Point Road, Connells Point in New South Wales.

2. That she report three times a week to a nominated officer of the Department of Immigration, Local Government and Ethnic Affairs between the hours of 9 am and 4 pm each Monday, Wednesday and Friday.

3. That in the event that her address be changed that she notify forthwith the Bankstown office of the department, being the office to which she is to report.

4. That during such time as she is released from custody that she not work or undertake any paid employment.

5. That she attend at the final hearing of this case when a date has been set for it.

1. I note that these orders are to continue until further order. I note also that the applicant has, through counsel, given undertakings in the form of the above orders. I note also the undertaking of Mr Li that he will provide a surety in a form acceptable to the respondent up to the sum of $5000, such amount to be forfeited in the event that the applicant failed to comply with the conditions set out above.