Routledge, S. v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 734

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JUDGMENT No. ..... ?$?l/,..-

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) GENERAL DIVISION )

No. VG 301 of 1991

B E T W E E N :

STEVEN ROUTLEDGE

Applicant

- and -

MINISTER OF STATE FOR

IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Corm:	Olney J
Place:	Melbourne  R E C ~ ~ ~ ~ ~
Date :	14 November 1991

EXTEMPORE JuDQmNT

The applicant in these proceedings, Mr Stephen Routledge (Routledge), is a citizen of the United Kingdom, and on 13 September 1991 obtained from the Australian High Commission in London a valid visa to travel to Australia for the purpose of remaining in Australia as a tourist for a period of six months.

Affairs (the department), he was interviewed and	Department of Immigration, Local Government and Ethnic
ultimately, following communication between O'Donohue and his departmental superiors in Canberra he was advised that his visa had been cancelled. It appears from the material before me that cancellation was effected by one Emil Joseph, a delegate of the Minister for Immigration, Local Government and Ethnic Affairs, by instrument dated 10 November 1991.
Since that time Routledge has remained in custody in Adelaide, and today has been brought to Melbourne for the purpose of these proceedings.
In his affidavit in support of the application, which obviously was prepared with a degree of haste, he indicated that his purpose in wishing to enter Australia was to attend a function organised by the Hell's Angels Motorcycle Club (HAMC), an organisation of which he says he is a member. However, in his interview with O'Donohue
was that of a prospective member of a chapter of HAMC in at Adelaide it appears that he indicated that his status the UK, and that he had no right as such to attend the
proposed World Run which was to be held in the coming weekend, but which I understand now has been postponed somewhat. And indeed, in that interview he said that his intention was not to attend the World Run because he
would not be allowed to do so.
From the bar table it is said now that he would, if able, and if permitted by the organisers by being given the appropriate status of membership, attend the World Run.
The officer of the department in Canberra who conveyed to O'Donohue the advice that the visa had been cancelled indicated in writing that the delegate had found that Routledge:

He arrived on an overseas flight in Adelaide at 6 a.m. on Sunday, 10 November 1991 and at Adelaide Airport, in circumstances which are detailed in the affidavit of Mr Michael James O'Donohue (O'Donohue), an officer of the

Is a prospective member of the Hell's Angels Motorcycle Club Tyne and Wear Chapter visiting Australia at a time when the World Run is due to be, and would be likely to be disruptive to the Australian community.

And that appears to be the only reason advanced for the cancellation of the visa. It is said by Routledge, and it is not disputed, that he is a person without any criminal convictions, that he is married with two small children in the United Kingdom, and that he owns a house in the United Kingdom.

matter which is subject to appeal, it is undesirable that

Because of proceedings presently pending in another

any definitive answer be given in response to the application, and accordingly I propose to deal with this matter, as has been suggested, simply on the basis of whether an order should be made releasing Routledge from custody, pending the final determination of the application.

I proceed on the basis that the Court does have authority

in an appropriate case to make orders which have the effect of releasing a person in Routledge's position from custody, pending determination of an application. There is room for a variety of views as to the Court's power in thia regard, but the preponderance of judicial opinion to this date, and one that I have on other occasions adhered to, is that the Court does have such power.

The matter is presently the subject of consideration by the Full Court, but until otherwise instructed by higher authority, I propose to proceed on the basis that the power exists. The power is probably essentially contained in section 15 of the Administrative Decisions (Judicial Review) Act supplemented by the general authority of the Court pursuant to the Federal Court Act to grant injunctions.

The question I must now turn to is whether it is appropriate that this power be exercised in the present

circumatances. It seems to me that the applicant is a person who has come to Australia in all good faith. He has done so on the basis of a visa granted in an appropriate manner, well in advance of his time of travel, and it would seem without any indication that his association with the HAMC may be a matter that the authorities in this country would be interested in.

It is indicated in the material before me that he arrived at Adelaide airpprt wearing his "patches", which I understand to be a jacket indicating association with

HAMC. So he has come to Australia legally and openly and

he has not attempted to disguise his association with that organisation. I have no doubt that he was completely unaware of the proceedings that have been in this Court in recent times relating to the World Run, and the attitude of the department concerning non-residents seeking to come to Australia for the purpose of attending it.

I proceed also on the basis that there is no evidence

that Routledge has any record of convictions, and indeed, the only evidence is that he has no record. Therefore there seems to be, apart from his membership of HAMC, or at least his association with it, no reason to treat him other than an ordinary law-abiding citizen wishing to

visit this country. There is no reason to suspect that if released from custody he would seek to remain in

Australia as an illegal immigrant. His ties with the United Kingdom are strong and I would have every confidence that at an appropriate time he would observe whatever legal obligations are cast upon him under the law of Australia to return to the United Kingdom.

This is a particularly strong case justifying the intervention of the Court and I propose therefore to make an order which .will have the effect of permitting Routledge to remain out of custody pending the final determination of the present application. But this will be upon conditions which I hope will be satisfactory to meet all of the concerns of the authorities and be fair to Routledge. I will comment in a moment as to the specific nature of the order, but the conditions I would impose are:

1.	that he report five times weekly to the manager of the compliance section of the department at 55 Currie Street, Adelaide, or at such other times and places as the manager shall otherwise direct; such reporting being between the hours of 9.00 a.m. and 12 noon;
2.	that he advise the manager of the department in

Adelaide of where he is residing and notify any

change in place of residence that may occur from time to time;

1. that his passport and return airline ticket remain in the custody of the respondent; and

4.    that in the event of the World Run being held prior to the final determination of this application, he not attend that event.

I do not propose to order that any surety be required

from him. I think in the circumstances of this case it would not be just or reasonable to impose that type of condition.

The substantive order that I make is that the operation of the decision of the delegate of the respondent to cancel the visa of the applicant be suspended until the final determination of this application, so long as the applicant shall observe the conditions referred to. In order to ensure so far as I can the proper exercise of the Court's powers and functions and also to secure the position of the respondent, I propose to make an order restraining the respondent from detaining the applicant in custody, so long as he shall observe the conditions that are indicated in the order. There will be a further order that there be liberty to apply to set aside or vary this order on 24 hours notice. The costs of the

relisted for directions on Friday, 29 November 1991.

proceedings today will be reserved. The matter will be

Heard	14 November 1991
Place	Melbourne

Decision : 14 November 1991

Solicitor for the applicant :	Mr J.P. OISullivan
Counsel for the respondent	Mr R. Downing
Solicitor for the respondent :	Australian Government Solicitor