Nguyen v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 934

IN THE FEDERAL COURT OF AUSTRALIA ) No. VG341 of

1991

NEW SOUTH WiWES DISTRICT REGISTRY )

GENERAL DIVISION 1

BETWEEN :	THI NGOC MY NGUYEU First Applicant and YEN THI LUONG Second Applicant
AND :
Respondent

C O W :	WILCOX J
PLACE :	MELBOURNE
DATE :	11 DECEmER 1991

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: The matter before the Court today is an application for a suspension of so much of a decision made by Margaretha Korn on 21 November 1991 as requires that the two applicants, Thi Ngoc My Nguyen and Yen Thi Luong, be held in custody until they are removed from Australia. The background to the matter need not be gone into in any great detail. Shortly, the two applicants arrived in Australia on 21 November 1991 pursuant to a passport issued to the first applicant, the mother, covering herself and her 9 year old daughter, the second

applicant, and a visa which was supplied to the mother on

Government and Ethnic Affairs formed the opinion that the first applicant had, in fact, married in Vietnam shortly before leaving that country to travel to Australia. Accordingly, a decision was made by MS Korn not to issue an entry permit to the applicant and to make an order for her to be held in custody pending removal from Australia. Notice was given, pursuant to the Act, to the carrier which had brought

condition that she not marry before arriving in Australia. By

reason of certain conversations which took place at Melbourne

the two applicants to Australia. The applicants were not

removed from Australia because of the intervention of this made to Olney J and subsequent orders. The applicants have remained in detention at the Maribyrnong detention centre since that day.

I was informed this morning that the parties were in

agreement that the hearing of the matter should be further
adjourned to allow the completion of inquiries which are being

made, as a matter of urgency, by the respondent Minister

concerning the applicant's marital status. In affidavits
sworn and filed in this proceeding the applicant has denied
that she was married in Vietnam shortly before leaving that
country, that she is presently a married woman and that she
told the officers of the Department that she was married.

Obviously, there is a major factual issue about that last matter. The complication of the issue is not reduced by the fact that the conversations took place through two

interpreters. However, the respondent, very sensibly if I may say so, has taken the view that the first thing to find out is whether in fact, according to the information available in

,+. .

Vietnam, the first applicant did marry, as it is alleged she claimed to the migration officers. The name of a person was mentioned and it is conceded by the applicant that she had a sexual relationship with this person for a short period before

What is in issue is whether the two parties were married.	leaving for Australia. That relationship is not in issue. together during that period.
According to a communication from the Vietnamese Government to the Australian Embassy at Bangkok, which has been tendered for the purposes of this application and marked
exhibit A, the gentleman concerned, one Che Van Loc, has been interviewed. He apparently claimed to the person who interviewed him that he did not live with Mrs Nguyen, but he
agreed that they had "relations". That word is in inverted
commas and I take it to mean sexual relations. Mr Che apparently disclaimed any intention of further contact with Mrs Nguyen.

The contents of this document rather support Mrs

Nguyenrs version of matters. Although it does not necessarily mean that she stated contrary to what she is alleged to have stated by the immigration officers, the document does suggest that there was not a marriage. However, very naturally, the respondent wants to explore this question a little further. Apparently there is a marriage register kept in Vietnam and I understand that inquiries are now being made through the Vietnamese authorities in order to ascertain whether there is any record of the alleged marriage.

Although counsel for the Minister has no specific

instructions on the point, he indicated in response to my
inquiry that if the information obtained from the Vietnamese
authorities is to the effect that there is no record of a
marriage, the decision which was made on 21 November is likely
to be reviewed. Of course, if that step was taken, it would
in no way reflect upon the integrity or wisdom of the original
decision; it would simply be a reaction to further and better
information. On the other hand, if the result of the
inquiries is that there is a record of such a marriage, then I
understand from their counsel that the applicants may be

advised to reconsider what course they should take.

I mention these matters only to indicate that there

is a prospect that it will not be necessary for the Court to

resolve the difficult question of exactly what was said in the

various conversations at the airport. It also supports the

wisdom of standing the matter over for a reasonable period
until better information is available from Vietnam. Counsel
have asked for the matter to stand over for one week and I am

happy to accede to that application. They hope to have the

necessary information by next Wednesday, but I: must say that

Bank at Ascot Vale and which are readily accessible to her.

has savings of about $3,000 which are held in the Commonwealth goods and the like.

Counsel for the respondent opposes suspension of the

custody order. He questions the power of the Court to make
such an order and says that, even if there is power, it should
not be exercised in this particular case.

So far as the power of the Court is concerned I do not think that I need go into this matter in any detail. It is sufficient to say that there have been numerous occasions on which judges of this Court have made orders pursuant to

s.15 of the Administrative Decisions (Judicial Review) Act
1977, in which they have suspended the operation of a custody
order pending disposal of pending proceedings in the Court.
Two recent examples of such orders were referred to in

argument, they are:  Msilanaa v m, (von Doussa J, 8 March

1991) and Manoher v Minister for Immiaration, Local Government

and Ethnic Affairs, (Lee J, 10 May 1991). I am told that

Msilanaa is subject to appeal. But, unless and until the Full

Court or the High Court of Australia say otherwise, I think

the proper course for me to take is to work upon the basis
that the various decisions by single judges of this Court are
correct, and that a judge of the Court does have power to make
a suspension order under s.15 of the Administrative Decisions
(Judicial Review) Act.

So far as discretion is concerned, it is true that there is not any specific evidence of hardship arising from the detention. It is also true that the adjournment presently

contemplated is relatively slight, being a mere 7 days. As to the first of these two matters, notwithstanding the absence of direct evidence, I think that it does not require much

of distress and hardship to the applicants. They speak
virtually no English, that seems to be common ground. The
first applicant's relatives in Australia consist of her
daughter, who lives at Footscray, and a sister who lives at

imagination to realise that their detention must be a matter but the daughter and the daughter's husband are both employed by the Ford Motor Company at Broadmeadows. It must be very difficult for them to regularly visit the Maribyrnong detention centre to see the two applicants. Without contact with relatives, or at least people who speak Vietnamese fluently, the applicants are in a very isolated position. So far as the length of the adjournment is concerned, this is a material factor; although it must be considered subject to the rider previously indicated about the eventual date on which

the matter can be disposed of. 

in the light of general experience of how long it sometimes

takes to get even seemingly straightforward information from

overseas authorities, I am a little sceptical about whether

. . ..

the matter will'be able to be finally resolved on that day. That scepticism has influenced me slightly in regard to the question whether or not the applicant should be kept in

custody following the disposal of the proceedings. But in saying that, I should indicate that I would probably be of much the same view even if I was confident of the matter being

finally disposed of next Wednesday.

Counsel for the applicants has pressed for an order

suspending the decision to keep the applicants in custody, but
subject to conditions. The proposition is that the two
applicants should reside with the first applicant's adult
married daughter, who is apparently an Australian citizen and
who resides at Flat 3, 23 Eldridge Street, Footscray. This

daughter, Thi Trang Thanh Nguyen, has recently married.	She
has no children. She and her husband occupy a two bedroom

flat and she has given evidence that she is prepared to have

her mother and young sister live with her pending the disposal

of the case. She is also prepared to place in the hands of

the Registrar such cash sum as the Court may require, as some

earnest of her good faith. She has given evidence that she

I

The most significant factor, in my thinking, is that

I do not regard this as a case where the applicants are likely

to disappear or to be absorbed into the community. The of remaining lawfully in Australia. Their relatives are
applicants would have nothing to gain by taking such a course.

a.  shall sign and lodge with the
Victorian District Registrar of this the applicant, Thi Ngoc My Nguyen, shall be translated to her by an accredited interpreter, who certifies that he has translated the document to her and that she appears to understand and assent to it, in which she unconditionally agrees:

confined, as I have indicated. I cannot imagine that they
would long be able to support themselves if they were to cut
themselves adrift from the married daughter and the sister.
Furthermore, the married daughter is prepared not only to give
an undertaking but actually to put up in cash as much as the

Court may require of her savings.

The first applicant gave evidence through an

interpreter. She acknowledge that she understood the
consequences of any failure to report, both for herself and
her daughter. I have no hesitation in accepting that she is
genuine in her assurances. However, I propose to take the
course of requiring there to be a written undertaking, which
will be explained to her through an interpreter who would

certify that she appeared to understand what was required.

The orders that I propose to make are as follows:

1.    Order that, upon compliance by the applicant, Thi Ngoc My Nguyen and her

daughter, Thi Trang Thanh Nguyen, with the

conditions set out in order 2 hereof, so
much of the decision of Margaretha Korn of
21 November 1991 as requires that the two
applicants be held in custody until they
are removed from Australia, be suspended
pending further order.

2.    The conditions referred to in order 1 hereof are as follows:

i. proceeding, or further order of
the Court, to reside with her
daughter Thi Trang Thanh Nguyen

until the finalisation of the Footscray;

ii.	to report each Monday, Wednesday and Friday to the Sunshine office of the Department of Immigration, Local Government and Ethnic Affairs, excepting only public holidays and any day on which the applicant attends this Court pursuant to these orders;
iii.	Wednesday, 18 December 1991, at 10,15pm, and thereafter from time to time on any day to to attend at this Court next adjourned; and

b.	The said Thi Trang Thanh Nguyen shall:
i. District Registrar a written undertaking, which shall be translated to her by an accredited interpreter who sign and lodge with the translated the document to her
and that she appears to
understand and assent to it, that she will forfeit to the Commonwealth of Australia the
sum of $10,000 in the event of any breach by her mother, the said Thi Ngoc My Nguyen, of any of the conditions of her undertaking; and
ii.	lodge with the District Registrar the sum of $2,000 in cash to be held by him by way of security against the said undertaking pending further order.

3.   I order that the further hearing of the matter be adjourned to 10.15am on Wednesday, 18 December 1991.

4.   Grant liberty to any party to apply on such notice as a judge may consider appropriate.

5.    Reserve the costs of today.

I certify that this and the preceding nine (9) pages are a
true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate:

Dated:  11 December 1991

APPEARANCES

Counsel for the Applicant:	T Hurley
Solicitors for the Applicant:	Alfred L Abrahams & CO
Counsel for the Respondent:	R M Downing
Solicitors for the Respondent:	Australian Government Solicitors
Date(s) of hearing:	11 December 1991