Ongel v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 239

FEDERAL COURT OF AUSTRALIA

Ongel v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 239

MIGRATION – application for release from detention pending determination of substantive application – whether the Court has power to hear such an application

Migration Act1958 (Cth) s 196(4), 501(2)

SUAT ONGEL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 682 OF 2003

SPENDER, HELY & BENNETT JJ
23 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 682 OF 2003

BETWEEN:	SUAT ONGEL APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SPENDER, HELY & BENNETT JJ
DATE OF ORDER:	23 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The motion is dismissed with costs.

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 682 OF 2003

BETWEEN:	SUAT ONGEL APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SPENDER, HELY & BENNETT JJ
DATE:	23 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HELY J:

1. This is an appeal from a decision of Jacobson J made on 30 May 2003 which is fixed for hearing before this Full Court on 4 November 2003. The appellant is currently in immigration detention in Villawood in consequence of the cancellation of his visa under s 501(2) of the Migration Act1958 (Cth) (‘the Act’) . The appellant has applied on motion for an order that he be released from detention pending the hearing of the appeal, on what might succinctly be called compassionate grounds. The appellant has offered to submit to a number of conditions if release from detention is ordered.

2. However, the Act was amended in September 2003 by the addition of subs (4) to s 196 which precludes the making of an interlocutory order for the release of a person in detention such as the appellant. It seems to me that the consequence of s 196(4) is that this Court has no power to grant to the appellant the relief which he seeks.

3. For that reason I would propose that the motion be dismissed with costs.

   SPENDER J:

4. I agree with those reasons and with the orders that Hely J proposes.

   BENNETT J: 

5. I too agree with those reasons and the orders Hely J proposes.

   HELY J: 

6. The order of the Court is that the motion be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Hely & Bennett.

Associate:

Dated:             4 November 2003

Solicitor for the Appellant:	Dennis & Co
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 October 2003
Date of Judgment:	23 October 2003