FEDERAL COURT OF AUSTRALIA

Yan Ji v Minister for Immigration & Multicultural & Indigenous Affairs

[2003]  FCA 1635

MIGRATION – application for certiorari quashing respondent’s decision to cancel applicant’s short stay business visa – whether interlocutory orders should be granted for release from detention pending determination of application – balance of convenience – risk of wrongful deprivation of liberty – principles for making order by consent setting aside the decision of the respondent to cancel applicant’s short stay business visa

Corporations Act 2001

Migration Act 1958 (Cth) ss 116(1)(g), 189 476, 481, 486

Migration Regulations 1994 (Cth) sub 2.43(i)(j)

Federal Court of Australia Act 1976 (Cth) s 23

Federal Court Rules O 35 r 10

Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249 cited

Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420 cited

Xiao v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 129 cited

Yulianti v Minister for Immigration & Multicultural Affairs [2001] FCA 142 cited

Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265 cited

Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186 cited

Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 1674 cited

YAN JI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W155 OF 2003

LEE J

15 AUGUST 2003

PERTH

THE COURT ORDERS THAT:

1.            Until further order the applicant be released by the respondent from immigration detention, continuation of the order to be subject to compliance by the applicant with the following conditions:

1.1          The applicant is to live at apartment 64, 128 Mounts Bay Road, Perth.

1.2          The applicant is not to leave the Perth metropolitan area until the respondent’s decision has either been revoked or redetermined.

1.3          The applicant is to surrender her passport to the respondent.

1.4          The applicant is to report to the office of the respondent at Wellington Street, Perth on Thursday 24 July 2003 and weekly every Thursday thereafter.

2.            There be liberty to apply.

3.            Costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BY CONSENT THE COURT ORDERS THAT:

1.         A writ of certiorari issue to quash the respondent’s decision made on 20 July 2003 cancelling the applicant’s visa.

2.         The orders made herein by the Court on 21 July 2003 be discharged.

3.         There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant, who is a Chinese national, is a director and shareholder of a company incorporated on 8 July 2002 under the Corporations Act 2001 (Cth).  The company’s main business is the provision of professional development programs for senior Chinese executives both in China and Australia.  The applicant is one of three directors of the company and performs the particular duties of signing all cheques for the company’s expenses and conducting directors’ meetings.  In April 2003, the applicant was granted a Subclass 456 Business (Short Stay) visa.  For the duration of the visa the applicant was able to depart and re-enter Australia. On 20 July 2003, the applicant disembarked at Perth airport to re-enter Australia. Officers of the respondent’s Department interrogated the applicant about compliance with the terms of the visa and purported to cancel the visa pursuant to s116(1)(g) of the Migration Act 1958 (“the Act”). The applicant was denied permission to re-enter Australia and instead was taken into custody and held at the airport detention centre under s 189 of the Act.

2                     By application filed in this Court on 21 July 2003, the applicant sought interlocutory orders restraining the respondent from continuing to detain her and from removing her from Australia.  The application sought the issue of a writ of certiorari to quash the respondent’s decision to cancel the applicant’s visa.

3                     The interlocutory application came before the Court for hearing on the same day.  Counsel for the respondent conceded that there was a serious question to be tried given that there was some uncertainty on the face of the material before the Court as to the basis for the respondent’s decision to cancel the applicant’s visa.  Accordingly the only issue to decide was whether the balance of convenience favoured release of the applicant from detention pending hearing and determination of the substantive application.  On this point, counsel for the respondent did not seek an adjournment to place material before the court to address that issue.

4                     Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) the Court has a discretionary power to make an interlocutory order for release of persons in immigration detention. (See:  Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249).

5                     The material before the Court, on its face, showed that there was a strong argument that there had been invalidity in the act of purporting to cancel the applicant’s visa.  Accordingly, a question of importance arose as to whether the loss of liberty by executive act should be permitted to continue.   Ordinarily an order restoring liberty would be appropriate where there is a real argument that continued deprivation of liberty is not lawful.  (See: Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420 per French J at [27]).

6                     Therefore, on the undertaking provided by the respondent not to remove the applicant, and being satisfied that there was a serious argument that the act of depriving the applicant of her liberty was unlawful, and that the balance of convenience fell clearly in the applicant’s favour, an interim order was made that the applicant be released on appropriate conditions.

7                     It was directed that the matter be re-listed for further directions on 15 August 2003.  Prior to 15 August 2003, a minute of consent orders prepared pursuant to O35 r 10 of the  Rules of the Federal  Court, was presented to the Court seeking orders that a writ of certiorari issue to quash the respondent’s decision on 20 July 2003, to cancel the applicant’s visa, and that the Courts orders on 21 July 2003 be discharged with no order as to costs.

8                     In the circumstances described I am satisfied that the Court has jurisdiction to make the orders sought by the parties and that it is appropriate for the Court to exercise its power to make the orders set out in the minute.

9                      It is apparent that the Court has jurisdiction in the matter and that the proposed order is within power.  It is not necessary that the Court set out the grounds on which an order has been made on the consent of the parties. (See: Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129; Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142; Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265; Takli v Minister for Immigration and Multicultural Affairs [2000] FCA 1186). It is sufficient that the Court be satisfied as to those matters and that it is an appropriate exercise of discretion for the order to be made as requested by the parties.  (See: Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 1674).

10                  Orders will be made in the terms of the minute.

Associate:

Dated:              8 September 2004