Wei Zhang v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 498

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JUDGMENT No. ........ ...... ,.J , , . .

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH DISTRICT WALES REGISTRY ) No. G399 of 1992

GENERAL DIVISION

B E T W E E N :

Applicant

THE MINISTER FOR IMMIGRATION
LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

m:	Heerey J
mm:	24 June 1992
PLACE :	Sydney

EX TEMPORE REASONS FOR JUDGMENT

I propose to make the order sought, subject to hearing counsel as to the precise conpitions. I will state my reasons briefly.

The Full Court has now established that the appropriate criteria in an application such as the present case are whether the prohibited non-citizen has satisfied the court, first, that it is unlikely that he or she will seek to be absorbed into the community; secondly, that he or she will observe any conditions, including conditions as to reporting and notifying changes of address and the like which the court may impose in ordering the release from custody; and thirdly, as to any other matters which the court may consider relevant in the circumstances of the particular case - see Minister for Immiaration. Local Government

and Ethnic Affairs v Msilanaa, (1992) 105 ALR 301 at 307.

Turning to the first of those criteria, the applicant is a married woman presently separated from her husband in circumstances which are described in my judgment on the application for interlocutory relief given on 19 June. She has no knowledge of the English language although she can speak Japanese. She is a music teacher by occupation. She knows nobody in Australia other than her husband and Mrs Rebecca Chong who has offered to stand surety for her and to allow the applicant and her daughter to stay at her house.

Mrs Chong is a Justice of the Peace and has been an Australian citizen since 1973. She has since 1986 been a pastor of the Mainland Chinese Mission and I understand it was in that capacity that she met the applicant at the detention centre. In an affidavit which the respondent did not seek to challenge by cross-examination, Mxs Chong deposed that she was fully aware of the circumstances of the applicant and was prepared to provide her with accommodation and to support her financially and

psychologically as well as provide food and other necessary items	that she might require.
Mrs Chong is prepared to stand surety for the applicant in the sum of either $1000 cash deposit or a guarantee of $5000. She would appear to have resources adequate to meet such liability. She has $8000 cash in the bank, a car and a house and earns an average wage of $350 per week before tax. As to the first of the Bsilanaa criteria, of necessity the court here is making a prediction as to the future and of course it is a matter whlch the court has to consider on the balance of probabilities. All I can say is I can see nothing to doubt the bona fides of Mrs Chong and indeed, the respondent has not challenged them. I also see nothing in the background of the applicant which might indicate that she might wish to disappear into the Australian community or, perhaps more importantly, that she would be able to do so even if she wanted to.
The second criteria as to reporting and notifying changes of address and the like is really tied up with the support of Mrs Chong who has indicated that she will be able to make arrangements so that the applicant can be taken to report regularly at the Bankstown office of the Department which is reasonably close to Mrs Chong's home in Cabramatta.

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The third criteria, that is any other relevant circumstances, is in the present case mainly concerned the litigation which the

applicant is engaged in, both the application to this court under	the (ADJR) Act and the proceedings in the local court for custody
of her child. There will be an application for interim custody heard on 10 July next and it is said that the applicant will be inconvenienced if she remains in custody because she will need to give detailed instructions to the Legal Aid Commission for the purpose of that case.
I think the circumstances are relevant and legitimately raised, however, they do not seem to me to loom very large. Although doubtless there would be inconvenience for somebody in the applicant's position having to instruct solicitors whilst she was in custody, I think were I not satisfied that she had met the first of the Msilanaa criteria, that inconvenience would not outweigh the undesirability of releasing the applicant when she had not established that it was unlikely she would be absorbed into the community.
One other factor which I should mention which perhaps does weigh in favour of the applicant and that is the fact that the substance of relief she seeks in this court, namely, the setting aside of the decision cancelling her visa, is linked with the present relief in that her taking into custody under s.89(3) of the Miaration Act followed as a direct consequence of the decision: see Minister for Immiaration. Local Government and Ethnic Affairs v Montero, unreported, 13 February 1992 in the judgment of Beaumont 3, with whom the Chief Justice agreed, at
page 7. I order that the applicant be released from present custody upon the following conditions. One, the applicant to reside at 41
Huntingdale Avenue, Cabramatta, with Rebecca Grace Chong. Two, the applicant to notify the officer in charge of the Bankstown office of the Department of Immigration, Local Government and Ethnic Affairs 48 hours in advance of any change of address. Three, that the applicant during such time as she is released from custody shall not work or undertake any paid employment or course of study at an educational institution. Four, the applicant attend the hearing of this application. Five, the applicant report each Monday, Wednesday and Friday between the hours of 10 am and 4 pm to the officer in charge of the Bankstown office of the Department of Immigration, Local Government and Ethnic Affairs. Six, that the respondent retain possession of the applicant's passport.
The court notes the undertaking of Rebecca Grace Chong to deposit the sum of $1000 and agreement to forfeit that sum and an additional sum of $5000 to the respondent in the event that the applicant fails to comply with the conditions set out above.
All right, thank you very much. I will reserve the costs of I certify that this and the preceding (4) four pages are a true copy of the Reasons for
today's app1ication.s

Judgment of the Honourable Mr

Dearances

Counsel for the applicant:  Mr G Craddock

Solicitors for the applicant: Legal Aid Commission of New South

Wales

Counsel for the respondent:  Mr N J Williams

Solicitor for the respondent: Australian Government Solicitor