Liu v Minister for Immigration and Multicultural Affairs

[1999] FCA 647

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration & Multicultural Affairs [1999] FCA 647

RUN ZHU LIU v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 277 OF 1999

TAMBERLIN J

SYDNEY

14 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 277 OF 1999

BETWEEN:	RUN ZHU LIU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	TAMBERLIN J
DATE:	14 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
Publication of Reasons for Orders made on 7 April 1999

1. On the morning of Wednesday 7 April 1999 an urgent application was made to the court for an order to restrain the Minister from deporting the applicant.  At that stage I was informed that the Department had stated that Mr Liu was scheduled to leave on a flight at 11.25 am on that morning.

2. After hearing representations from Counsel for Mr Liu, I granted an order restraining the respondent from giving effect to arrangements for the deportation of the applicant until further order and I directed that a copy of the application and supporting documents be served on the respondent and the Australian Government Solicitor.  The matter was made returnable before me at 3.00 pm.

3. On 26 March 1999 the Immigration Review Tribunal (“the IRT”) made an order affirming a decision which refused to grant the applicant a Bridging E Visa, Sub-Class 050 (General).

4. An application for an order of review against that decision was filed on 6 April 1999.  The grounds for review were cast in general terms but basically the specified issue was that procedures required by the Migration Act 1958 (Cth) (“the Act”) to be observed were not observed.

5. When the matter came back before me in the afternoon of 7 April 1999, I was informed by Mr Markus, of the Australian Government Solicitor’s office, that a decision had been made by last night to postpone the deportation of the applicant.

6. Mr Markus then made an application for dissolution of the injunction on the basis that the application for review was in effect doomed to failure and disclosed no arguable case.  He pointed to the provisions of cl 050.212 and 050.213 of the Migration Regulations which relate to the circumstances in which a Bridging Visa Class E can be granted. It is pointed out that under cl 050.212(2) the Minister must be satisfied that the applicant is making or is the subject of acceptable arrangements to depart Australia.  Reference was also made to cl 050.213 which requires the Tribunal to be satisfied that if a Bridging Visa is granted the visa applicant will abide by the conditions imposed on it.

7. In the reasoning of the IRT, the decision-maker found that the visa applicant did not meet any of the requirements of cl 050.212, and pointed out that it is mandatory for an applicant to meet at least one of these requirements at the date of primary application and also at the date of the decision.  In the course of the findings, the decision-maker also said that on the evidence he was not satisfied that the visa applicant was making acceptable arrangements and that from his migration history he was not satisfied that if released he would depart Australia.  There is no detailed canvassing of the evidence or discussion of the material before the IRT.  The findings are expressed to be based on oral evidence received at the hearing as well as material in the IRT and Departmental files.  The conclusions are stated in a broad and general way, and the material which was before the IRT along with the transcript is not before me as the Notice of Appeal was only lodged on 6 April 1999.  The application for review was lodged within time.

8. Counsel was only briefed in this matter at the last moment and has not had any real opportunity to consider the material before the IRT, or any transcript of the hearing before the IRT, in order to form a clear opinion as to the prospects of success.  The position is that, at the present time, it is simply not realistic to expect that the applicant would be in a position to point to material which would indicate whether he has a case to present to the Court.  I do not consider that a strike out application should be dealt with at this stage in the proceeding. I simply cannot tell at this time whether the applicant has an arguable case. It would, in my opinion, lead to procedural unfairness if the applicant were to be deprived of a proper hearing of his application.  The applicant has not been given the benefit of any submissions or reference to particular evidence which would indicate that there is no case to answer, nor is there any material on which the applicant can rely. 

9. So far as balance of convenience is concerned, the competing considerations are these.  On the part of the applicant it is said that a date has now been fixed for the hearing of a workers’ compensation claim brought on his behalf on 19 April 1999, and that if he is deported before that time it will be necessary to seek an order overseas in order to return to Australia.  There is no indication that any such application for a  visa to return to Australia for this purpose would be granted.  Accordingly, he could be considerably disadvantaged in relation to the prosecution of his workers’ compensation claim.  If he is permitted to remain in Australia until expiry of a short time after the hearing or determination of the workers’ compensation claim then this prejudice will be avoided.  Another consideration which was advanced was that the applicant has been convicted of an assault and that he has since the date of the hearing before the IRT lodged an appeal against this conviction.  He wishes to clear his reputation on this appeal.

10. On behalf of the Minister, it is submitted that there is no point incurring public expense in keeping the applicant in Australia in circumstances where there is no reasonable case to be argued and where there has been a conviction. Emphasis is placed on the obligation of the Minister to act promptly in matters concerning unlawful residents: see ss 195 and 198 of the Act.

11. Whilst I do not attach a great deal of importance to the fact that there is an appeal against the conviction, I do consider that there is substantial force in the applicant’s submission that the balance of convenience favours the continuance of the injunction to enable him to give evidence in the workers’ compensation proceeding which is to be heard shortly.

12. My conclusion after hearing submissions and considering the decision of the IRT in this matter, is that it is not appropriate at this stage, nor would it be procedurally fair, to strike out the application for an order of review where the application has been filed within time and where the necessary material to decide the question is not before the Court.  This is particularly so in circumstance where the matter has been brought on as a matter of the greatest urgency and the applicant’s Counsel has only been instructed at the last moment and has not had an opportunity to consider the relevant material.

13. Accordingly, at the second hearing held this afternoon, I refused to dissolve the injunction and ordered that it will remain in force until further order.  However, in the interests of disposing of this matter, I have fixed an early hearing date and have directed the parties to bring in further directions to ensure that the matter is in a position to proceed on that date.  In the interim period it will of course be necessary for the applicant and his legal representative to obtain access to the transcript and documents before the IRT.

14. At this stage it is not appropriate to make any order as to costs and these are reserved.  However, I note that an application for costs was made on behalf of the applicant on the basis that he was not informed of the decision made last night to postpone the deportation.  Had this position been made clear in a timely manner the urgent application made today may not have been necessary.

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

Associate:

Dated:             14 May 1999

Counsel for the Applicant:	P Gwozdecky
Solicitor for the Applicant:	Tim Young & Associates
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 April 1999
Date of Publication of Reasons for Orders made:	14 May 1999