Renevier, G.J. v Luu, T.Q. - [1989] FCA 409

Re: GEORGE JOSEPH RENEVIER
And: TUONG QUANG LUU and MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT
AND ETHNIC AFFAIRS
No. QLD No. G45 of 1989
FED No. 409
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)

CATCHWORDS

Immigration - deportation - refusal to grant permanent resident status - long-term resident - strong compassionate and humanitarian grounds - history of sexual offences - surgical castration while in prison - reasons to deport and to decline permanent resident status based on existence of real risk of recidivism - natural justice - right to be heard on possibility of recidivism - whether there was evidence on which to base finding of a real risk - whether decisions unreasonable in Wednesbury sense.

Administrative Decisions (Judicial Review) Act 1977: s. 5

Migration Act 1958: ss. 6A, 6(2), 12, 18.

HEARING

BRISBANE

#DATE 28:7:1989

Counsel for applicant: Mr. M. Foley instructed by: Goss, Downey & Carne<

Counsel for respondent: Ms. C. Holmes
instructed by: Australian Government Solicitor

ORDER

The decision refusing the applicant resident status be quashed.

The decision to deport the applicant be quashed.

The matter be remitted to the second respondent to be considered according to law.

The respondents pay the costs of and incidental to the application, to be taxed if not agreed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

This is an application under s.5 of the Administrative Decisions (Judicial Review) Act 1977 for a review of a decision denying permanent resident status under the Migration Act 1958 to George Joseph Renevier, and a decision to deport him from Australia.

The decision was made by Mr Tuong Quang Luu, who is the State Director of the Department of Immigration, Local Government and Ethnic Affairs in New South Wales and delegate of the Minister of State for Immigration, local Government and Ethnic Affairs. I shall refer to the first respondent as Mr Quang; that is how he signs his name.
The decisions the subject of this application were made by Mr Quang on 17 April 1989. Mr Renevier was taken into custody on Monday, 22 May 1989 and it was the intention of the Department to deport him to New Caledonia on Friday, 26 May 1989. A successful application to stay the deportation order was made on 25 May 1989. That order has been continued pending determination of this application.
Mr Renevier was born in Vanuatu, New Caledonia on 24 March 1954. He is unmarried and is of French nationality. He arrived in Australia on lo June 1972, when he was aged 18 years. He has ever since resided in Australia. He is presently residing with his mother, his sister Mrs. Fogliani, and brother-in-law at his sister's home at 46 Young Street, Gympie. He is now aged 35 years. He is a borderline mental defective.
Mr Renevier claims that he applied for a further temporary entry permit in 1972, but no record of such an application exists,…

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.

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Details

Case: [1989] FCA 409
Decision Date: 28 JULY 1989

CaseChat Overview and Summary

In the matter of Renevier, G.J. v Luu, T.Q., the Federal Court addressed the deportation of a long-term resident who was refused permanent residency and faced deportation. The applicant, a long-term resident with a history of sexual offences, had undergone surgical castration while in prison. The central issue was whether the decisions to deport and to deny permanent residency were reasonable, considering the real risk of recidivism and the applicant's right to be heard on the matter.

The court examined whether there was sufficient evidence to support the finding that the applicant posed a real risk of reoffending. It also assessed whether the decisions were unreasonable in the Wednesbury sense, meaning they were so unreasonable that no reasonable decision-maker could have made them. The court found that the evidence did not adequately support the conclusion that the applicant posed a real risk of recidivism, and the applicant's right to be heard on this issue was not properly considered. These factors rendered the decisions unreasonable.

Given these findings, the court quashed the decision refusing the applicant resident status and the decision to deport him. It remitted the matter to the relevant authority for reconsideration according to law. Additionally, the court ordered the respondents to pay the costs of and incidental to the application, to be taxed if not agreed.

The orders effectively nullified the adverse decisions against the applicant and mandated a fresh assessment by the relevant authority, ensuring that all legal principles, including the right to be heard and the requirement for reasonable decision-making, are properly observed.

Orders

Orders of the court

The decision refusing the applicant resident status be quashed.

The decision to deport the applicant be quashed.

The matter be remitted to the second respondent to be considered according to law.

The respondents pay the costs of and incidental to the application, to be taxed if not agreed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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