Liang, Z.B v The Minister for Immigration Local Government and Ethnic Affairs

[1990] FCA 594

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574/ 40

JUDGMENT NO	........ ,,....... .	-	,	!	I	I
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IN THE FEDERAL COURT OF AUSTRALIA )

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VICTORIA DISTRICT REGISTRY	1	No VG No 279 of 1990
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GENERAL DIVISION	1

BETWEEN: ZHANG B1 LIANG

(Applicant)

AND:	THE MINISTER FOR IMXIGRATION	,
LOCAL GOVERNMENT AND ETHNIC AFFAIRS
(Respondent)

Corm:  Ryan J.

Date : 8 October 1990

Place:  Melbourne

EX TEMD-ORE REASONS FOR JUDGMENT

In this matter I am satisfied that the present application raises a serious ~uestion to be tried between the applicant and the respondent Minister as to whether the purported cancellation of the applicant's temporary entry permit on 3 September 1990 was invalid or was infected by some denial of natural justice to the applicant. Because there has not been an opportunity for full consideration of all the facts surrounding the making of that decision or of the legal principles relied on as supporting the decision or the way in which it was arrived at, it is undesirable that I say more at present about the existence of a serious question to be tried.

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Since the applicant has satisfied me of the existence of such a question, the principles enunciated by Northrop J. in	!
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Kaur-Bonicelli v Minister for Immiaration, Local Government and Ethnic Affairs [No. 2 1 (unreported 26 April 1990) are applicable. At p.7 of that judgment, his Honour observed, after referring to earlier cases including Piroalou v Minister for Immiaration and Ethnic Affairs (1981) 55 F.L.R. 99 and Habal v Minister for Immiaration. Local Government and Ethnic Affairs per Lockhart J. (unreported 12 September 1989):

"Srnce those cases have been decided and on the facts of this case

the legal posltion has been changed. On the facts of the present

case and in llght of the concession made by the Minister, there as

an automatrc statutory stay of the deportation order made and thus
lt is not necessary for the applicant, in the present case, to

establish what mrght be said to be a serrous Lssue to be tried or

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to rely upon the strength of such an issue m her favour in relatlon to the deportatron order. Nevertheless, such a matter is of importance where a statutory stay does exrst because I still accept, as a matter of law, the fact that prrrna facle a deportee does not have a right of release from detention pending the hearing of a review of the order to deport. All the cases where the Court has consrdered varrous factors to be taken into account where an applrcation for release has been made, proceed on the basis that there is at least a strong ground for sayrng that there rs a serlous issue to be tried and that there 1s a lrkelihood of the relevant order berng set aside. In addition the nature of the custody could be considered. In thrs respect matters for consideratron have been expressed to be whether there is a likelihood that an applicant will seek to be absorbed into the community, whether an applicant will observe any conditions, rncluding conditrons as to reporting to the m~gration offrcials, and whether there are any other matters which a Court may consider relevant to the circumstances of that partrcular case."

These can be illustrated by reference to what was said by Lockhart J. in Habal. In Kaur-Bonicelli's case, Northrop J. concluded that offers by the applicant to observe reporting conditions pending the hearing and determination of her application were not "of themselves sufficient to overcome the prima facie case that the applicant should be kept in custody". In the present case, I have considered several relevant factors wh.ich I regard as relevant to the application for release from custody.

In the first place the applicant was, before the cancellation of his entry permit which is challenged in these proceedings, the holder of a valid entry permit and a bona fide student. His studies have already been disrupted as a result of his having been in custody since 3 September 1990. That disruption is likely, I infer from the evidence, to become irreparable if he is detained in custody until the hearing and determination of this application which cannot occur before 12

November 19 9 0.

That a relatively early hearing of the application- can be

afforded by the Court is of itself a matter relevant to the exercise of the discretion which has been invoked in the present case. I consider that it tends in favour of an exercise of the Court's discretion to order release from custody because it correspondingly shortens the period in which the applicant would be at large although no longer, on the Minister's case, the holder of a valid entry permit. It also limits to the same extent

the applicant's 9pportuni-ties to merge as an illegal immigrant	into the community if he were so minded. I find nothing on the
evidence, I should say, to indicate any such intention on the part of the applicant.
Moreover, the fact that the applicant has evinced a strong desire to resume his studies provides an additional mechanism for reinforcing the reporting conditions which I would certainly impose as a condition of his release from custody. The Registrar of the International College of English, where the applicant is enrolled as a student, has deposed that she is "prepared to advise the Department if M r Zhang fails to attend more than one day without notification". I would require that expression of intention to be translated into an undertaking to be given to the Court as part of the reporting conditions which I am minded to impose.
As I have already indicated I have been influenced by the fact that a final hearing and determination of this application
can be afforded commencing on 12 November. As well, the parties

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have indicated a readiness to adhere to a timetable which should ensure that a final hearing and determination does occur at that

time .

Consistently with the necessarily brief indications of my reasoning which I have just given, I propose to order:

1. That the respondent furnish to the applicant by 12 October

Decisions (Judicial Review) Act 1977 for the decisions to 1990 reasons in accordance wit.h s.13 of the Administrati2

arrest the applicant and cancel his entry permit.

2.    That the applicant file and serve by 22 October 1990 any amended application and any further affidavit or affidavits on which he intends to rely in support of such amended application.

1. That the respondent file and serve any answering affidavit or affidavits by 29 October 1990.

4.  That any affidavit or affidavits in reply be filed and served by 5 November 1990.

5.  That the final hearing of the application be fixed to commence at 10.15 a.m. on 12 November 1990 in Melbourne.

6. That the applicant be released from custody and allowed to

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remain at liberty until 4.15 p.m. on 12 November 1990 or

further order, upon condition:

(i) That the applicant report on every ~ o n d a ~ , Wednesday

and Friday to the Compliance Section of the Department of Immigration, Local Government and Ethnic Affairs at

55 King Street, Melbourne.

(ii)That the applicant within 24 hmrs of his release from custody notify the said Compliance Section of the Department of Immigration, Local Government and Ethnic Affairs of the address at which he is then residing and thereafter notify the said Compliance Section forthwith of any change of such residential address.

(iii) That the Registrar of the International College of English undertake to this Court forthwith to notify the Conpliance Section of the Department of Immigration, Local Government and Ethnic Affairs of any failure by the applicant to attend at the said College for any class, lecture or any other purpose which may be required by the course which the applicant is undertaking.

(iv)That the applicant do not undertake any employment without first obtaining the consent of the Compliance Section of the Department of Immigration, Local Government and Ethnic Affairs.

1. That liberty to apply be reserved.

2. That the costs of both parties of this day be reserved.

   I certify that this and the preceding five

   (5) pages are a true copy of the Reasons for

   Judgment of His Honour Mr Justice Ryan.

Associate:

Date:  8 O W O & & Z / 4 9 0

Counsel for Applicant:	MS M. Kennedy
Solicitors for Applicant:	Blackburn (Maurice) & CO
Counsel for Respondent:	3- TT.  J. Ginnane
Solicitors for Applicant:	Australian Government Solicitor
Date of Hearing:	8 October 1990
Date of Judgment:	8 October 1990