Wah, P.Y v Murrell, W.A.

. .	RESTRICTED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

)

QUEENSLAND DISTRICT REGISTRY

1	QLD G29 of 1986

GENERAL DIVISION

)

BEXWEEN :

PHANG YOOK WAH

Applicant

AND :

W.A. MURRELL

First Respondent

AND :

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Second Respondent

SPENDER J.

BRISBANE

APRIL,

1 9 8 6

EXTEMPORE REASONS

FOR JUDGMENT

On Frlday last at about 5 o'clock, Phang Yook

Wah lodged

an appllcatlon

under

the

Admlnistrative

Declslons

(Judlclal

Review) Act

1977

(hereafter called

"the Judlcial Renew Act")

seekmg to

revlew the decision of the flrst respondent who is a

stlpendiary magistrate

Nambour, whlch

declslon was made on

Friday, 18 April

1986 authorismq the detention of the applicant

until 28 Aprll 1986.

2 .

That order was made by Mr. Murrell

the purported

exercise

of his

power under

s . 3 8 of the Migration Act. That

section, which is headed 'Arrest

prohibited non-citizen',

provides in sub-section

1:-

"An officer may, without warrant, arrest

a person

whom he reasonably supposes to

be a prohibited

non-citizen, and

a person so arrested may, sublect

to this section, be kept in the custody

of any

officer or in such other custody

as the Mlnister

or an authorized officer dlrects."

Where

that

person

brought

before

a prescribed

authority, sub-section

3 requires the prescribed authority

( m

thls case Mr. Murrell) to:-

"...inquire

lnto the questlon whether there are

reasonable grounds for supposing that that person is a prohlblted non-cltizen and, If the prescrlbed

authority is satlsfied

that

here

are

such

reasonable grounds, he may, by

writing under hls

hand, authorise the detentlon

of that person in

custody

for

such

period

as the

prescribed

authorlty 1s

satlsfled is reasonably requlred

order to enable the Mlnister

to conslder whether

that

person

1 s

a prohibited non-cltlzen

and

whether a deportatlon order should be made In

respect of hm, but otherwlse the prescribed

authority shall order that person to be released."

That sectlon, it seems to me, qlves to

the prescribed

authorlty a discretlon to authorise the detention

of the person,

but that detention

has to be for the prescribed purposes; that

l s ,

for such period

the prescrlbed authority considers is

reasonably necessary

to enable the Minister

to consider the

status of the person, and whether a deportation order should be made in respect of him. The qualification by the words, "but otherwise the prescribed authority shall order that person to be

3 .

released" manifests an

intention that unless it is necessary

for

a person to be detained for the purpose	of whlch 55.3 speaks, the
person 1 s to be released.

There 1s a question here mvolving ss.3A which in terms

provides:-

"The period for

which the detention in custody

of a

person brought before a prescrlbed authority may

be authorlzed

under

sub-section

(3) by

that

prescrlbed authorlty shall not exceed 7 days from

the date

of the authorlzatlon or such longer

perlod from the date of the authorizatlon

as the

person consents to.

The appllcation on Frlday, 18 Aprll

1986, was flled in

clrcurnstances

of extreme

urgency.

The Australlan

Government

Sollcitor was advlsed and dld appear

but, of

course, in the

clrcumstances, wlthout the beneflt

full lnstructlons and,

indeed, without knowing In any real way the detalls	of what had
occurred earller that day In Nambour.

The facts behind the applicatlon may

summarlzed in

thls way. Phang Yook Wah, the appllcant, is

39 years of aye, and

he is the husband of Phang Chia Nylt Lan, and the father of Phany Keny Chun and Phang Ying Yiny. In hls affldavlt he says that he arrived wlth his wife and two children on 24 March 1982, and until Wednesday, 16 April 1986, his son, Phany Keng Chun, aged

18, attended Nambour High School and was then in year

11, and hls

daughter, Phang Ying Yiny, aged

17, attended Noosa

High School

and was in her matriculatlon year.

In his affidavit he says that he and his family are

prepared to leave

Australia

immediately

"to return

our

previous country

of residence, Honq Konq", and it is their

intention to apply immediately for permanent residence status

for

the purpose of migrating to Australia. He says that he has the immediate financial resources to pay for the airfares to return immediately to Hong Kong.

Mr. Phang, In his

affidavit, says that hls wlfe and two

chlldren could fly to Honq Konq on Tuesday, 22 April

1986.

circumstances

whlch I wlll later

relate,

the

wife

and

two

chlldren are presently held In

a detention centre In Vlllawood in

Sydney.

says that on Wednesday evenlnq he had had no notice

or lnkllnq that

he and

hls famlly would be detained. He says

that he co-operated, as dld

his family, and were in turn treated

courteously and well by the lmmlqration officers.

He says that

he and hls wlfe are the proprletors

of a

restaurant business called the Minq Court Chlnese Restaurant,

which he has been runnlnq for four

years, which has an annual

turnover

of some $300,000. There

are

currently

ten

people

employed in the restaurant, and the restaurant has been closed smce Wednesday because he has been unable to make arrangements to keep it operating.

Essentially, he

seeks to have

some time to be able to

arrange hls affairs in preparatlon for hls leavlnq the country,

and then subsequently making an appllcatlon permanently to come

to Australia in a lawful way. Part of those arrangements, he

says, include the paying

his suppliers, and arrangements to

enable his	present employees also to be paid and to continue to
work.

He says that on

25 February 1985 he exercised an option

renewing the lease

of the restaurant until

6 April 1988.

appears that he owns wlth hls

brother-in-law, and that

person’s

brother, some two blocks of land in Nicklin

Way, Kawana Waters.

The certificates

of title to these blocks of land are exhibited

to his affidavit. He also

owns a block of land In hls own right

in Sunshme Beach.

says that his

family assets are in the

order of $400,000 and he proposes that hls assets remaln m Australla and wlll be here if he 1 s permitted to return by the migration authoritles.

He 1s a member of the Noosa Heads Chamber of Commerce, and it 1 s clear from the materlal that

he 1 s well regarded In the

communlty, and there

is material before me indicatlng that

he, In

addltlon to any local authorlty and state government charges, has

pald federal Income tax, and he clalms to

have pald award waqes

to all of hls staff, and

he says he has no previous crlmlnal

convictions of

any k m d in any country he has llved

in, and he

says he has no Intention of absconding.

The decision which is the subject of the applicatlon, a declsion made pursuant to

1 s

5 . 3 0 of the Miqratlon Act, and there

is to be no submisslon made that It is not a decision properly reviewable under the Judicial Review Act. On Friday afternoon I did not accede to a request that the appllcant be released from

custody, because the basis on which I could make that order was not able properly to be placed before me and, more importantly, the practical considerations were such that it was not possible properly to conslder the matter.

When the matter came

on after 5 o'clock on Friday I was

told that Mr. Phang was already at Brisbane Airport, and it was

proposed that he and his family leave on the 6.15 p.m. flight to

Sydney, and there

to be detalned at the Villawood Detention

Centre.

I was told that there was

no accommodation for him In

any watch-house or gaol so that he could remaln in the area

South-East

Queensland.

I must

say

that

I regarded that

submlsslon wlth

some scepticism. It seemed

to me unllkely that

any person arrested on a crlmlnal offence

on Saturday evening In

Brisbane would find that there was	no	room In one	of	Her
Malesty's watch-houses or prlsons.

However, it was not practicable

In the time available to

consider the questlon of whether

it would be posslble to have hlm

detained In

a place that dld not requlre

his transportation to

Sydney. The dlfflcultles of obtainmg lnstructlons if	that
travel occurred were apparent.

I therefore ordered

on Friday afternoon that

I would

resume the hearing

of the applicatlon at

9 . 3 0 thls mornmg, and I

ordered that Mr. Phang be produced to the	Federal Court at 9 . 3 0
a.m.

On the question that

I have

consider today, the

amended application seeks

review that decision, and asserts

that he is aqgrleved because

he has been detained smce the

decision and pursuant to

it.

The grounds of the application are

five.

First, that the first respondent

failed to take relevant

consideratlons Into

account, namely, that there was no evidence

suggesting

that

applicant

would

abscond

released.

Secondly, the first respondent took into account

an Irrelevant

consideration, namely, that the applicant

had over four years to

organlse his affairs

when, in

fact, the appllcant was suddenly

detained without such opportunlty. Thlrdly,

as there was no

evidence or

materlal suggesting the appllcant would abscond

not detained,

there was no evldence

or material to

~ustify

the

declslon.

Fourthly, the failure to

allow the applicant a

few

days to organlse

hls buslness affairs was such

an unreasonable

exerclse of power

that qo reasonable Magistrate could have made

such a decision.

Flfthly,

as the appllcatlon was opposed, the

first respondent either erred

In law or was not authorlsed by the

Mlsration Act

1958 to authorise the detention

of the applicant

for a perlod exceeding seven days.

The amended appllcatlon clamed an

order setting aslde

the declslon authorlslng the detention

of Mr.

Phang until

April or, alternatively, an order for suspending the operation of

the first

respondent’s decision.

That

second prayer for relief

is based on 5.15 of the Judicial Review Act which

provides:-

"(1) The making of an appllcation to the Court

under section 5 In relation to

a declslon does not

affect the operatlon of the decislon or prevent

the taklng of actlon to implement the decision but

(a) the Court or

a Judge may, by order,

on such

conditions (if any)

as it or he thinks fit,

suspend the operation

of the declsion; and

(b)

the Court or a Judge may order, on such

conditions (if any)

as it or he thinks fit,

a stay

of all or any proceedings under the

decislon.

It further provides that:-

" ( 2 ) The

Court or a Judge may make an order under

sub-section (1) of Its or hls own motion or on the

appllcatlon of the person who made the appllcatlon

under sectlon

On an appllcatlon for a

stay, the test to be applled

1 s

to Inquire whether there 1 s

a serious questlon to

be tried and

then to determlne the matter

of the balance of

convenlence.

accept the observations

of the Full Court of the Federal Court m

Falnqold v. Zammlt (1984) 1 F.C.R. 87 at 91, where the Court

sald, in respect	of a decislon made by Northrop	J. at flrst
instance:-

"Hls Honour then considered what test

he should

apply in determining whether the relief sought

should

granted.

He thought

that

the

appropriate test was that recently propounded by

Gibbs; C.J.

in The Australian Coarse Grain Pool

Ptv.Ltd.

The Barlev

Marketinq

Board

Pueensland (1983) 57 A.L.J.R. 425.

His Honour

there decided, notwithstandinu what was sald in

Beecham

Group

Ltd. v. Bristol

Laboratories

Pty.Ltd.

(1968) 118 C.L.R.

618, that the proper

approach in considering whether

an interlocutory

injunction should be granted is

to lnquire whether

there is a

serlous question to

be tried, and then

determlne

the

matter

the

balance of

convenience: see p.425."

At first instance, Northrop J. had considered the application

5.15 and, on the facts there, declined to order

the stay that was

sought, but held that he proper test to apply is the one that

have outlined. It was suggested that, in applying that test,

fell into error. The Full

Court of the Federal Court refused to

interfere, and said

(at pp.91-2):-

"In

the submission of

counsel for the appellants

the

approprlate

test

was whether

the

court

considered that reasons or circumstances existed

whlch made it just that the court should make the

order sought. That was the test formulated by Keely J. in Perklns v. Cuthlll (1981) 52 F.L.R. 236. His Honour was there deallnq wlth an

applicatlon under 5.15

of the Judicial-Revlew Act

1977 for a stay.

He said at p.238:

"In my opinlon s.15(l)(a) requlres

applicant

satlsfy

the

court

that

reasons or clrcumstances exlst whlch make it lust that the court should make the order sought but It 1 s not necessary

for the appllcant

to show that those

reasons

clrcumstances

are

any

sense 'speclal' or 'exceptlonal'. Of course the dlscretion must be exercised ]udlclally and not arbitrarlly."

In our opmion it

will be difficult for an

appllcant to show that reasons or circumstances

exlst whlch make it lust that

the court should

make the order sought unless it is demonstrated

that the applicant

has a point of substance to

argue whlch, if successful,

will

result

~udgment

in his favour. In this respect It does

not

appear

to us that the two tests

are, in

practical terms, very dlfferent."

On the question

of the approprite manner in which to

approach the question

for decision, reference also

may be made to

the observations

Morling

J. in

v. The Minister

for

Immiqration and Ethnic Affairs (unreported,

3 February 1983).

Having referred

to authority in respect of the applications for

interlocutory relief by deportees who	are held in custody, his
Honour continued:

“In my opinion it is always

a most compelling

consideration that an applicant is in gaol and I

think

the

court

should

quick

grant

interlocutory rellef In such a

case unless there

are strong grounds

for him being kept in custody.

Nevertheless,

does

seem

that

necessary in proceedings

of this kind to have some

regard to the appllcant’s prospects of success in

the proceedings.

I‘

Later in

hls

]udgment,

he referred to the obviously serlous

consideratlon that the applicant 1s a

prohibited immlgrant wlth

no entitlement to stay or work in this country.

One further matter

1 s an

observation by Keely

J. In

Perkins v. Cuthill, to

whlch reference has earller been made,

where hls

Honour concluded that the length of time

whlch might

elapse before the court declded the appllcation might asslst the

applicant if

It were

likely

long

but

that,

In the

clrcumstances of that

case, that consideratlon dld not apply.

The situation here

1 s that, unless the matter is

heard, the force

of the decision will

be spent.

Affidavits have been filed by Mr. Henry, solicitor from

the Australian

Government

Solicitor,

who attended

Magistrate’s Court m Nambour on mstructions from the Department of Immigratlon and Ethnic Affalrs, as to what occurred before the

Magistrate, and also by Mr.

Ostwald, the solicitor who appeared

for Mr.

Phang, before the Magistrate.

I am

conscious that the

11.

opportunity to provide reasons has not been glven to

Mr. Murrell,

nor can it be said that complete confidence

can be reposed in the

accounts

of what occurred before

him on

the material that is

presently

before me. Nonetheless,

there

appears

sufficient

material to allow me

to conclude that there are,

at least,

serious questlons to be tried as to whether the decision by Mr. Murrell ought properly be reviewed under the grounds set out in

s . 5 of

the Judicial Revlew Act. Mr. Henry in

his affidavit at

paragraph 11 deposes:

"I	said to Mr. Murrell that the fact that the

applicant had acquired assets and was the owner

a successful business was

of his own domg and was

not In

my submlsslon relevant to the exerclse of

his discretion at thls stage."

He also deposes in paragraph

14:

"After some time had elapsed durlng

whlch tlme Mr.

Murrell

appeared to read the

material

placed

before hlm, I heard Mr. Murrell say words to the effect that, as the malorlty of the persons before

hlm, Including the appllcant, had

been

Australia slnce

1982 he consldered that they had

had ample opportunity to get their affalrs in

order and therefore he considered

that

Mr.

Ostwald's submissions concernlng the suddenness	of
these events were without substance."

Implicit in that is the real possibility that the personal

circumstances of the present appllcant, Mr. Yook Wah Phang, were

subsumed into a global conslderation of all the persons before

the Magistrate. There 1s a question as to whether, in

fact, they

ought to be heard together, and the exhibit

"A" to Mr. Henry's

12.

affidavlt seems to suggest that the eight persons covered by the statement of facts in support of the application(s) were such as

not

permit

proper

consideration

of the individual

circumstances applying

to each one.

It is unnecessary for me to

go further as

to other

grounds on

which it may be said that the

Magistrate’s decision

was reviewable. Suffice

to say, in my view,

there clearly 1s a

serious question to be tried, and it	1 s necessary then to turn to
the balance of convenlence..

It 1 s not suggested in any realistic way that

Mr. Phang

will abscond. Having regard to the contents of hls affldavit, on

which he was not sought to be cross-exammed, In my view, there

can be

argument but that a stay of the operation of Mr.

Murrell’s order for a short period would in

o way prejudlce the

authorltles and may, In fact, go a long way to resolvlng not only

his partlcular posltlon but that

of his lrnmedlate family.

the

circumstances,

propose

make

an order

pursuant to s.15(l)(a) suspendlng the operation of the order made

by Mr. Murrell on Friday last, 18 April until Thursday at 2

p.m.

when I will consider the position and give any further directlons

to the final hearing

of the application.

I order, subject

to the following conditions, that the

decision made by Mr. Murrell authorising

the detention of Phang

Yook Wah until 28 April 1986	be suspended until	2 p.m. on
Thursday, 24 Aprll 1986.

13.

I direct that the applicant attend

in person at the

€ederal Court of Australia, 8th Level, M.L.C. Court, at 2 p.m. on Thursday, 24 April 1986. I order that the suspension of the

operation of the declsion of

Mr. Murrell be on the following two

conditlons:

flrstly, that he report on Tuesday and Wednesday,

and 23 April, at 9.30

a.m.

to the officer in charge

of the Noosa

Heads Police Station, and further that

he reside at Unit 1, The

Islander, Noosa Parade,	Noosa Sound, Noosa	Heads, until Thursday
next.

I will reserve the question

of costs.

[1986] FCA 196

21 Apr 1986