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

[1993] FCA 704

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IN TAE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	) No. VG 294 of 1993
)
GENERAL DIVISION	)
B E T W E E N :

QIU SHENG WENG

ADDlicant

MINISTER FOR IMMIGRATION. T..OCIU

GOVERNMENT AND ETHNIC AFFAIRS

Res ondent

JUDGE :	Heerey 5
DATE :	13 September
PLACE :	Melbourne

REASONS FOR JUDGMENT

The applicant is challenging a deportation order which was made on 21 July 1993. The respondent has undertaken not to enforce that deportation pending the determination of the application. In the meantime, the applicant seeks release from detention. That is the application that I am concerned with today.

fate of that application, it was refused on 14 December 1992.

The applicant arrived in Australia from the People's Republic of China on 7 October 1990 with an entry permit valid to 16 November 1991. He is now aged 31. He has a wife and two children still in China. The purpose of his visit was to learn English.

He remained in Australia after the termination of his entry permit. He had already made an application for refugee status on 23 September 1991. Following through for the moment the

He applied for review on 11 January 1993 and that review was rejected on 30 June 1993.

It was not clear from the evidence as to whether his entry permit entitled him to work on some limited basis. In any event, he could not work after his entry permit expired on 16 November 1991: Migration Act 1958 (Cth) s.81(1).

However, he did obtain work, and while he was engaged in that work on 25 August 1992, a very serious assault took place. He stabbed his employer in the back, causing severe injury. The employer suffered a right pneumothorax. Part of the knife

-	blade was left in the body and had to be removed. Fortunately the employer made a good recovery although he has some residual psychological problems.
The applicant pleaded guilty in the County Court of Melbourne to a count of intentionally causing serious injury. The trial
of the incident the applicant was suffering from judge, his Honour Judge F B Lewis, accepted that at the time
hallucinations. His Honour noted that the employer, far from being an enemy, had in fact been friendly towards the applicant and the applicant was at a loss to explain the incident. His Honour directed that the applicant undergo psychiatric treatment but the lack of any suitable State facilities for this purpose resulted in the applicant remaining in custody until 3 May 1993.
He was then sentenced to perform 100 hours of community service and was directed to undergo such psychiatric examination as the Office of Corrections might require. He remains at the moment in remand prison because of his psychiatric condition; he has not been admitted to the ordinary migration detention centre.
A hearing of his substantive application can be heard on 4 and 5 November 1993, so his application for release has to be assessed against the background that a comparatively short period of time will pass before his application is dealt with in this court.
It is argued on behalf of the applicant that he has been dealt with for his crime by the appropriate court with an order that does not involve detention and he should not be punished in this court for what he did. Further, it is said that satisfactory arrangements have been made for his residency.
He has become associated with the Church of Christ at Thornbury; the senior minister of that church, Rev Laurence
Holt, in a letter to the Department has undertaken that the church will provide accommodation for the applicant and would also "provide close supervision of his movements".
The applicant has been befriended by another Chinese man, Mr Zhang Dan Lee, who is a theology student and also a member of the church at Thornbury. Mr Zhang has offered to take charge personally of the applicant and provide him with board and accommodation at his residence at 21 South Street, Glenroy and also to assist him financially should he require this.
I accept, of course, the generosity and good faith of Rev Holt and Mr Zhang; however, their offer to assist the applicant, while made from the best of motives, cannot be conclusive of L
the question I have to decide. t

L

There are a number of factors which, in my opinion, add up to

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a conclusion that the applicant should be refused. First, while, as I say, I accept that it is not my role to punish the applicant for his crime, what he did was something very serious and life-threatening. It is in his favour that the County Court judge accepted that this incident was caused by a psychiatric condition beyond his control. Nevertheless, that very reason to my mind indicates that there cannot be a complete guarantee that there is not a risk of the same thing happening again and the existence of the risk, I think, is a

factor which has to be taken into account.

Secondly, the applicant has shown a serious disregard of the migration laws of this country in a number of respects. He worked when he was not lawfully entitled to do so. When interviewed by a migration officer on 11 June 1993 he gave a residential address which turned out to be false. When arrested, he resisted arrest and sought to break free. All of this shows that an order releasing him, which would have to depend primarily on my acceptance of the personal undertaking of the applicant, would in view of his past record not command confidence that it would be followed.

For the same reason I do not think it is satisfactory to rely on the assurances of the Rev Holt and M r Zhang to ensure his compliance with the terms of any order for release. Indeed, it would not be fair to those gentlemen to expect them to ensure compliance.

Finally, I should say that there was detailed criticism of the lawfulness of the deportation order itself. None of this seems to appear in the application for review. In any event, it is an order lawful on its face and I do not take into account any supposed vulnerability of the deportation order to legal challenge as a relevant matter. That order exists. It is presently subject to an undertaking not to execute, but if the present challenge is not successful, it will be executed.

I will order that the application of the applicant for release	from custody be dismissed; order that the costs of the notice
of motion dated 29 July 1993 be costs in the cause; I direct that any affidavits on behalf of the applicant be filed on or before 27 September, and any affidavits on behalf of the respondent be filed on or before 11 October; applicant's contentions of fact and law be filed on or before 18 October; respondent's conditions on or before 25 October; I fix the hearing for 4 and 5 November.

I certify that this and the

preceding five (5) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated: 13 September 1993

, ssocia e

Counsel for the applicant:	Mr T V Hurley
Solicitor for the applicant:	Robert Pei

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Counsel for the respondent:	Mr K H Bell
Solicitor for the respondent:	Australian  Government
Solicitor
Date of hearing:	13 September 1993