Lin v Minister for Immigration and Multicultural Affairs

[2000] FCA 446

FEDERAL COURT OF AUSTRALIA

Lin v Minister For Immigration & Multicultural Affairs [2000] FCA 446

LI PING LIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 299 of 2000

LINDGREN J
31 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 299 OF 2000

BETWEEN:	LI PING LIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	31 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be returnable instanter without prejudice to the position of the respondent.

2.The interlocutory relief sought be refused.

3.        The application otherwise be stood over to next Tuesday 4 April 2000 at 9.30 am.

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 299 OF 2000

BETWEEN:	LI PING LIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	31 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

1. There is before me, as Duty Judge this afternoon, an urgent application for an interlocutory injunction.  This morning the Migration Review Tribunal (“the Tribunal”) affirmed a decision of a delegate of the Minister (“the Delegate”) refusing to grant the applicant a Bridging Visa E (Class WE) Subclass 050 (Bridging Visa (General)).  The Tribunal is required to prepare a written statement setting out its reasons.  No doubt that obligation will be complied with but the applicant has not yet been given reasons.  Yet the applicant has been notified that he will be removed from Australia tomorrow, 1 April, by a China Airlines flight CA173 at 11.20 am. 

2. The application filed in Court this afternoon seeks an order restraining the respondent Minister from removing the applicant “pursuant to ss 198, 199 and 205 of the Migration Act 1958 pending the publication of the statement of reasons by the Migration Review Tribunal”. This is in the nature of interlocutory relief but there is no final relief specified in the application to which the interlocutory relief is ancillary. It is true that the application also seeks an order that the Tribunal publish the statement of its reasons pursuant to s 368 of the Migration Act 1958 (Cth) (“the Act”) and forward that statement to the applicant’s legal representatives expeditiously but I would not make that order: apart from any other consideration, there is no reason to think that the Tribunal will not comply with s 368 as soon as reasonably practicable.

3. I have been informed, and there is no dispute about this, that on a previous occasion the applicant applied for a protection visa which was refused.  His solicitor thinks he may have applied to the Refugee Review Tribunal for review of that decision by a defective application which was also held to be invalid.  The position is unclear as the applicant’s present solicitors were not acting for him on that application.  What is known, however, is that the applicant, without a visa permitting him to remain in Australia, “disappeared” into the Australian community and has only recently been taken into immigration detention.

4. It is common ground that the basis of the application for the bridging visa is that the applicant was making, or was the subject of, acceptable arrangements to depart Australia. Accordingly, his purpose in making the present application is that he wishes to be able to depart Australia voluntarily rather than to be deported. If he were to amend his present application before the Court to apply for review of this morning’s decision of the Tribunal (which is a judicially reviewable decision - see s 475(1)(a) of the Act), a favourable result would be an order remitting the matter to the Tribunal and a favourable reconsideration by the Tribunal would be the grant of the bridging visa, in which event the applicant would be expected to leave Australia without delay voluntarily. Apparently, the difference, in terms of consequences for the applicant, is that if the applicant is removed by the Minister, he cannot apply for a fresh visa permitting him to enter Australia for a period of five years.

5. The applicant’s present solicitors appeared for him before the Tribunal but they are not in a position to say that he has any intention to apply for a visa to re-enter Australia within the five year period.  Of course, it is possible that he may wish to apply for a tourist visa or some other class of visa permitting him to re-enter within that period, but the most that he is denied by a refusal of the interlocutory injunction this afternoon is the opportunity to have his application for a bridging visa reconsidered with the possible result that he obtains the bridging visa with the possibility of his applying for a visa permitting him to re-enter Australia within five years.  All this is, on any reckoning, a most remote and hypothetical advantage.

6. The evidence shows that the Delegate was not satisfied that the applicant would abide by conditions imposed on the bridging visa.  So far as the evidence relied on by the applicant this afternoon goes, the position seems to be simply this: that certainly the Delegate, and almost certainly the Tribunal, was not satisfied that if the applicant were at liberty, he would proceed to depart Australia at all but would again simply “abscond”.

7. It has been put persuasively by Mr Hovan for the applicant that it is illusory for the applicant to have a right to apply to this Court for review of the Tribunal’s decision, yet to be deported before receiving the written statement of the reasons of the Tribunal and therefore knowing whether he wishes to make such an application.  Mr Markus for the Minister points out that the applicant can exercise his right of application to the Court although he has left Australia, but in reality the consequence of the applicant’s being removed from Australia is that he will lose the only advantage that he seeks to achieve.

8. It is almost certain that the Tribunal’s reason, like that of the Delegate, is that on the on the basis of his past behaviour, the applicant cannot be trusted to proceed to leave Australia voluntarily.  On the evidence before me I am not satisfied that there is a serious question to be tried that the Tribunal’s decision would be set aside, or that if it were, the disadvantage to the applicant would be anything more than hypothetical and remote. 

9. Mr Markus relies also on the obligation of an officer under s 198 of the Act to remove the applicant “as soon as reasonably practicable” as, in effect, preventing the Court from granting the interlocutory injunction sought. I do not find it necessary to deal with this submission and have approached the matter on the footing that the Court does have the relevant power notwithstanding those words.

10. In many cases it would perhaps be appropriate that an applicant have the opportunity of perusing the reasons for decision of the Tribunal before being removed from Australia, but in the special circumstances of this case I do not think, on the evidence before me, that a serious question to be tried has been shown that the applicant will obtain relevant final relief from the Court or that the balance of convenience favours the granting of interlocutory relief.

11. I decline the application for interlocutory relief. I stand over the application otherwise until next Tuesday 4 April at 9.30 am.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             7 April 2000

Solicitor for the Applicant:	Mr G L Hovan of Hovan & Co
Solicitor for the Respondent:	Mr A Markus of The Australian Government Solicitor’s Office
Date of Hearing:	31 March 2000
Date of Judgment:	31 March 2000