Minister for Immigration & Ethnic Affairs v Qiang, W.Y

[1994] FCA 854

bS4 9+

JUDGMENT No. ... ~~ ,,

FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY

GENERAL DIVISION

BETWEEN :

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Applicant

AND:

WANG YONG QIANG

and ANOTHER

Respondent

CORAnr

PLACE :	SYDNEY
DATE:	9 NOVEMBER, 1994  16 NOV 1994

PRINCIPAL REQISTRV

ONS FOR JUDGWENT

HIS HONOUR: The applicant has filed in these proceedings an application to review a decision by the Refugee Review Tribunal which, as I have already indicated, was made on 4 October 1994. In that decision, the tribunal remitted the first respondent's application for what is known as a protection visa for reconsideration by the applicant. The tribunal gave a direction that the first respondent must be taken to have satisfied the criterion that he is a person to whom Australia has protection obligations under the Refugees Convention, that is the 1951 Convention in Relation to the Status of Refugees as amended by the 1967 Protocol.

coercive birth control measures against the first respondent

The applicant claims that the decision of the tribunal involved

an error of law, in that the tribunal held that the use of

amounted to persecution within the meaning of the Refugees Convention. The applicant now proceeds ex parte for an order pursuant to s .482 (2) of the Miaration Act 1958. That subsection permits the Court, if an application is made to review a decision of the Refugee Review Tribunal, to make an order staying the decision. The application, as I previously indicated, is made by way of a notice of motion supported by an affidavit of Mr Markus. Mr Markus has also appeared on behalf of the applicant.

As I have also previously indicated, the first respondent is

presently held in custody in Port Hedland Western Australia. He is, so I infer from the tribunal's reasons, a 38 year old man of Chinese nationality who arrived in Australia by boat and without any official permit or visa on 28 May 1994. He was taken into custody as what is described as an "unprocessed person" and subsequently sought protection as a refugee. His application was, however, rejected by the Department of Immigration and Ethnic Affairs. Thereafter the first respondent obtained a review of that decision by the Refugee Review Tribunal which

ruled in the manner I have previously indicated.

The reason underlying the current application by the applicant is that the Minister has apparently undertaken the reconsideration of the first respondent's application that was contemplated by the tribunal's decision. On the assumption that the first respondent is entitled to protection as a refugee, the Minister has apparently determined that he meets the other requirements for a protection visa set out in class 866 of

Schedule 2 of the w t i o n Reaulations. The Minister has taken the view, so I have been informed, that unless there is an authorisation from the Court he would regard himself as bound to grant the visa to the first respondent.

The difficulty as explained to me is that if a visa is granted to the first respondent there is no provision enabling that visa to be revoked. This is so even if the tribunal's decision on the first respondent's status as a refugee is found to be wrong as a matter of law: (See uaration Act 1958 S. 117 (2) which provides that a permanent visa cannot be cancelled under 8.116 of the

tion Act 1958 if the holder of the visa is within Australia, and "was immigration cleared on last entering Australia".)

Accordingly, on the assumption that this view of the law is correct, the Minister wishes to have the tribunal's decision stayed, so that he is not obliged to issue a visa pending the determination of the Federal Court proceedings. Of course, one consequence of granting the application to stay the tribunal's	decision may be that the first respondent will remain in custody.	Mr Markus has informed me that, so far as he is aware, there is
no provision for the first respondent to be released pending the hearing of the application to the Court for review of the decision of the Refugee Review Tribunal.
This, if it be correct, is a matter of concern. It means that a person who has been adjudged by legal process to be entitled to a visa to enter Australia must remain in custody pending judicial review even if arrangements could be made to ensure that he would be returned to custody in the event of the application for review succeeding before this Court. Whatever might occur in this matter, it seems to me of considerable importance that
the first respondent have the opportunity to obtain legal advice. This is needed for the purpose of determining what attitude should be taken by him to the application for a stay when it returns to the Court.
=vice is also needed to consider whether the view of the law that has been expressed by Mr Markus on behalf of the applicant is one that might be challenged in some way. Advice is also necessary for the purpose of determining whether there is any provision for the first respondent to be released pending the hearing of the application for review by this Court. If, as Mr: Markus has suggested, there is no such provision, it may be a factor which the Court should take into account in determining whether a stay order should be continued pending the determination of the Federal Court proceedings.
Refugee Review Tribunal should be made. However, this should be I have formed the view that an order staying the decision of the
for a short time only since the effect will be, as I have explained, that the first respondent will remain in custody in Port Hedland. I have been informed that the Refugee Advice and Case Work Service acted for the first respondent in the proceedings before the Refugee Review Tribunal. I have also been informed that the service does not represent persons before the Federal Court, at least in the ordinary course of events. However, I consider it appropriate to direct that a copy of the orders be served on the service in case it is able in some way to assist the first respondent to obtain legal representation. I also think it appropriate to give directions intended to ensure that not only the documents are served on the first respondent but that he has the opportunity of receiving a translation of the substance of those documents so that he may understand what is occurring.
I should add that it ought not to be assumed that I have formed the view that if a visa once issued cannot be cancelled a stay order should be made effective until the Federal Court proceedings are determined. If one consequence of such an order is that a person who has been adjudged eligible to enter Australia must remain in custody pending the Federal Court proceedings the court would need to consider the significance of that consequence for the stay application. However, this is not a matter I need determine in the course of the present ex parte
application.
The orders that I propose to make are the following: I direct that the notice of motion filed by Mr Markus on behalf of the applicant and the affidavit of Andrus Markus - 7 n - m 9 November 1994 be served upon the first respondent on or before 5 pm today, 9 November 1994. I further direct that it is sufficient compliance, subject to the matters that I am shortly to mention, with the order, if service upon the first respondent is effected by facsimile addressed to him and forwarded to the Centre Manager, Port Hedland Detention Centre, Western Australia.
I direct that copies of the notice of motion and the affidavit
also be forwarded by facsimile to the Refugee Advice and Case Work Service which represented the first respondent before the Refugee Review Tribunal. I direct that service of these documents be effected on or before 5 pm today 9 November 1994.
I note that service ought to be effected upon that branch of the
Refugee Advice and Case Work Service responsible for representing the first respondent in the proceedings before the tribunal.
I note the following undertaking that has been given on behalf
of the applicant by Mr Markus. It is as follows:

The applicant undertakes to the Court that facsimile copies of the documents forwarded to the first respondent in accordance with the orders previously made will be handed to the first respondent forthwith upon receipt by the

Australia, in the presence of an accredited interpreter	Centre Manager, Port Hedland Detention Centre, Western
qualified in the relevant language, who will assist the first respondent to understand the content and nature of
the documents .

RECORDED : NOT TRANSCRIBED

HIS HONOUR: The second respondent is the member constituting the Refugee Review Tribunal. I direct that service of a copy of the notice of motion and of the affidavit be served upon the second respondent by 5 pm today 9 November 1994.

RECORDED : NOT TRANSCRIBED

HIS HONOUR: The order that I make in relation to the decision of the Refugee Review Tribunal is as follows: I order that until further order the decision of the Refugee Review Tribunal made by the second respondent on 4 October 1994 and which is the subject of the applicant's application to this Court be stayed. I direct that a copy of the order that I have made also be served on the first and second respondent in accordance with the directions that I have already given. The notice of motion will

be stood over until 10.15 am on 11 November 1994.

RECORDED : NOT TRANSCRIBED

HIS HONOUR: I will direct, Mr Markus, that it be compliance with the terms of the earlier orders that a typed copy of the terms of the order that I have made be served without the Court seal if it proves impracticable to obtain a copy with the Court

seal on it.

RECORDED : NOT TRANSCRIBED

HIS HONOUR: I note your undertaking to the court that the filing fee appropriate to the notice of motion will be paid to the registry before 5 pm tomorrow 10 November.

RECORDED NOT TRANSCRIBED

I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment of the Honourable Justice

Sackville.	/
Associate: 'g8	- ~4-

Dated: 14 November, 1994

Heard:	9 November, 1994
Place:	Sydney
Decision:	9 November, 1994
Appearances:	Mr A. Markus appeared on behalf of the Australian Government Solicitor for the applicant.