Luu, Ex parte - Re MIMA - [2003] HCATrans 672

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M72 of 2003

In the matter of -
An application for Writs of Habeas Corpus, Mandamus, Certiorari, a Writ of Prohibition, Injunction and Declarations against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

Ex parte –
MINH DANG LUU
Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON MONDAY, 28 APRIL 2003, AT 3.01 PM

MR G.S.S. KUEK: If the Court pleases, I appear for Mr Luu. (instructed by Access Law)

MR C.J. HORAN: If the Court pleases, I seek leave to appear for the prospective respondent in this matter. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Kuek.

MR KUEK: Thank you, your Honour. Your Honour should have a number of documents sent to you earlier today. They comprise, firstly, an affidavit affirmed by myself today and to this is exhibited five exhibits. The last exhibit in that material, your Honour, is an outline of argument that we propose to rely on in the event that this application is successful and Mr Luu is given leave to proceed with his application for constitutional relief. I would not wish to take that part of the argument any further, your Honour. I rely on the written submissions that are set out in there. Your Honour, insofar as the power to grant this interim application is concerned, may I refer your Honour to ‑ ‑ ‑

HIS HONOUR: I do not think there is any doubt that I have power to make orders that would restrain the Minister from effecting deportation. Subject to anything that you may wish to add to that, I am not, for the moment at least, troubled about any question of power to make an order. At the moment the difficulties I have concern whether I should make any such order. Can I just see if I understand the basis on which the application for interim relief proceeds. First, I understand it is an application for interim relief to hold the present status quo pending hearing and determination of application for constitutional relief; is that right?

MR KUEK: That is correct, your Honour.

HIS HONOUR: And the constitutional relief which you would seek is, as I understand it, that set out in the draft order nisi. Do you have that?

MR KUEK: Yes, your Honour.

HIS HONOUR: Now, four forms of relief are sought: first, orders the effect of which would be to have Mr Luu released from detention; second, certiorari to quash the deportation decision and the AAT’s review of that decision; third, relief directed to restraining or preventing the Minister detaining the applicant; and then the last is any other relief that may be appropriate. Now, am I right in understanding that the deportation decision referred to in paragraph II(b) of your draft order nisi was the subject not only of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Luu, Ex parte - Re MIMA

Details

AGLC: Luu, Ex parte - Re MIMA [2003] HCATrans 672
Case: [2003] HCATrans 672
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Luu for leave to appeal to the High Court of Australia against a decision of the Full Federal Court. The dispute involved the Minister for Immigration and Multicultural Affairs (MIMA) and concerned the Minister's decision to refuse to grant Mr Luu a protection visa.

The primary legal issue before Hayne J was whether the Full Federal Court had erred in law in its interpretation and application of s 474 of the *Migration Act 1958* (Cth). Specifically, the court was required to determine whether the Full Federal Court had correctly applied the principles established in *Minister for Immigration and Multicultural Affairs v Eshetu* regarding the scope of judicial review of decisions made under the Act.

Hayne J considered the arguments presented by Mr Luu and the Minister, focusing on the nature of the alleged errors of law by the Full Federal Court. His Honour reviewed the relevant provisions of the *Migration Act* and the jurisprudence concerning the limits of judicial review in migration matters. The reasoning centred on whether the Full Federal Court had impermissibly engaged in a merits review of the Minister's decision, rather than confining itself to identifying jurisdictional error.

Leave to appeal was refused.

Orders