Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2)

[2007] FCA 1446

FEDERAL COURT OF AUSTRALIA

Soo-Choon v Minister for Immigration and Citizenship [2007] FCA 1446

IOAKIMO SOO-CHOON v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD1770 OF 2007

COWDROY  J
31 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1770 OF 2007

BETWEEN:	IOAKIMO SOO-CHOON Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	COWDROY  J
DATE OF ORDER:	31 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for injunctive relief contained in the document filed by the applicant entitled Notice of Appeal be dismissed.

2.The proceedings be listed before the duty Judge at 9.30 am on 14 September 2007.

3.Costs be reserved.

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	NSD1770 OF 2007

BETWEEN:	IOAKIMO SOO-CHOON Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	COWDROY  J
DATE:	31 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By a document entitled Notice of Appeal received by the Registry of the Court this afternoon, the applicant Mr Soo-Choon seeks an injunction restraining his removal from the jurisdiction which is scheduled to take place this afternoon. The grounds of the application are stated to be that his family are in Australia; he is due to be married on 16 September 2007; and his daughter and fiancé are living in Australia. No other details are provided.

2. Mr Markus has appeared at short notice this afternoon for the Minister for Immigration and Citizenship (‘the Minister’). He has provided the Court with a Statement of Reasons for the Minister’s decision made on 22 June 2007 to cancel Mr Soo-Choon’s special category visa subclass TY444 pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘the Act’).

3. Section 501(2) of the Act provides:

   (2)The Minister may cancel a visa that has been granted to a person if:

   (a) the Minister reasonably suspects that the person does not pass the character test; and

   (b)  the person does not satisfy the Minister that the person passes the character test.

   The character test is defined in s 501(6) of the Act and includes a consideration of a person’s past criminal record.

4. The Minster has submitted that no application for review or for an extension of time in which to apply for review of the Minister’s decision was made by Mr Soo-Choon within the time limits imposed by s 477A of the Act. Section 477A of the Act relevantly provides:

   (1)  An application to the Federal Court for a remedy to be granted in exercise of the court's original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

   (2)  The Federal Court may, by order, extend that 28 day period by up to 56 days if:

   (a)  an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

   (b)  the Federal Court is satisfied that it is in the interests of the administration    of justice to do so.

   (3)  Except as provided by subsection (2), the Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.

5. Had an application to extend time been made as provided by s 477A(2), it could have been entertained by the Court as the 84 day time limit has not yet expired. In the current circumstances the Court will nevertheless have regard to the reasons for the Minister’s decision to cancel Mr Soo-Choon’s visa in its consideration of whether the interlocutory relief should be granted.

6. Such reasons disclose that Mr Soo-Choon is a citizen of New Zealand and was granted a special category TY444 visa on 28 May 1999. On 27 September 2001 Mr Soo-Choon was convicted on two counts of robbery armed with an offensive weapon and was sentenced to three years and three months’ imprisonment with a non-parole period of 18 months. Thereafter on 28 August 2002 Mr Soo-Choon was convicted of robbery in company and sentenced to three years and two months’ imprisonment with a non-parole period of two years and one month. Both of these terms of imprisonment were to be served concurrently commencing on 7 November 2001. It appears that Mr Soo-Choon was not granted parole due to his behaviour while in prison and he was released on 6 January 2005. On 22 April 2005 Mr Soo-Choon commenced serving a further seven days’ imprisonment for contravening an apprehended violence order. On 8 December 2005 Mr Soo-Choon was convicted of maliciously inflicting grievous bodily harm, and was sentenced to two years and six months’ imprisonment with a minimum period of one year and three months. Mr Soo-Choon was released on parole on 21 February 2007.

7. The Statement of Reasons indicates that the Minister has considered the nature of Mr Soo-Choon’s conduct and its effect on the Australian community and the risk that Mr Soo-Choon may re-offend. The Minister also considered that the Australian community would expect Mr Soo-Choon’s visa to be cancelled and for him to be removed from Australia in view of his criminal record following the directive contained in paragraph 2.12 of Ministerial Direction No. 21 made under s 499 of the Act. The Minister took into account that the cancellation of the visa would cause hardship to Mr Soo-Choon’s daughter and he also he took into consideration the interests of Mr Soo-Choon’s nieces and nephews in Australia. The Minister also considered additional matters in reaching his conclusion.

8. The Court has been informed that actual service upon Mr Soo-Choon of the Minister’s decision took place on 5 July 2007. The Court also notes that no steps were taken by Mr Soo-Choon to challenge the Minister’s decision between 5 July 2007 and this afternoon.

9. Even if Mr Soo-Choon had made an application for leave to extend time to challenge the Minister’s decision under s 477A(2) of the Act, the evidence does not establish that the interests of the administration of justice would require the Court to exercise its discretion to extend time. The only evidence before the Court suggests that the Minster, prima facie, had valid reason upon which he relied to cancel Mr Soo-Choon’s visa, namely his criminal record. The document relied upon by Mr Soo-Choon does not suggest any basis of jurisdictional error and the grounds stated suggest that the only matters relied upon by Mr Soo-Choon relate to the merits of the Minister’s decision to cancel his visa. In effect, Mr Soo-Choon seeks a review of the factual matters relied upon by the Minister.

10. The Court is not satisfied that there is a serious question to be tried. This threshold must be reached in order for the Court to grant the interlocutory relief sought: see Castlemaine Tooheys Limited v State of South Australia (1986) 161 CLR 148; see also Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. For these reasons, the Court dismisses the application and makes orders as set out above.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy .

Associate:

Dated:        31 August 2007

Solicitor for the Applicant	The Applicant did not appear
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 August 2007
Date of Judgment:	31 August 2007