FEDERAL COURT OF AUSTRALIA

Lewis v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1637

MIGRATION –application for certiorari quashing respondent’s decision to cancel applicant’s visa under s 501 of Migration Act 1958 (Cth) – motion for interlocutory release of applicant pending hearing and determination of application – where serious question to be tried on constitutional grounds – balance of convenience – risk of wrongful deprivation of liberty.

Migration Act 1958 (Cth) ss 189, 198, 254, 501(2)

Federal Court of Australia Act 1976 (Cth) s 23

Crimes Act 1900 (NSW)s 66C(1)

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

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

DARREN LEWIS v THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W149 OF 2003

LEE J

1 AUGUST 2003

PERTH

THE COURT ORDERS THAT:

1.         The applicant is to be released from detention until further order and subject to compliance with each of the conditions set out below:

1.1              The applicant will reside at 71 Werombi Road, Camden in New South Wales, 2570.

1.2              In the event of any proposed change of address and contact details, the applicant will give 48 hours prior notice in writing to his solicitors, Christie & Strbac, Level 2, 524 Hay Street, Perth, Western Australia 6000 and to Ms Teresa Ling at Australian Government Solicitor, 2 The Esplanade, Perth, Western Australia of his intended address and contact details.

1.3              The applicant will report to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) at 2-12 Macquarie Street, Parramatta, New South Wales on Tuesdays and Thursdays of each week between the hours of 9.00am and 4.00pm excluding only weekends and public holidays and in addition thereto by telephone on Mondays, Wednesdays and Fridays of each week to Kevin Thompson (telephone number (02) 98934101) or such other named officer or officers at the Parramatta office of DIMIA as may be designated in writing from time to time by the respondent to his solicitors during ordinary working hours excluding only weekends and public holidays.

1.4              The applicant will not leave the Sydney Metropolitan area at any time without first obtaining the written consent of an officer of the respondent.

1.5              The applicant will comply with the parole conditions imposed on him.

1.6              The applicant is to deposit with the District Registrar of the New South Wales District Registry of the Federal Court a bond by way of bank cheque in the sum of $5,000 or otherwise in a form acceptable to the Registrar which may be forfeited to the respondent by order of the Court in the event of any breach by the applicant of the conditions imposed upon him by these orders.

2.         The proper place for this proceeding is the New South Wales district registry with the result that the file and papers to be transferred to that registry by the Perth district registrar.

3.         The costs of this motion be reserved.

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

REASONS FOR JUDGMENT

LEE J:

1                     The applicant, who was born in the United Kingdom on 9 March 1973, migrated to Australia with his parents and a sibling on 26 August 1985.  Apart from a short holiday abroad in about 1988 the applicant has remained in Australia as a “permanent resident”.  He retained his British citizenship. 

2                     On 6 July 2001, the applicant was convicted in New South Wales of a number of offences under s 66C(1) of the Crimes Act 1900 (NSW), and sentenced to a term of imprisonment of 3 years and 5 months. 

3                     The applicant was due to be released on parole on 5 July 2003.  On 30 June 2003, pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”), the respondent cancelled the visa held by the applicant.  The applicant thereupon became an “unlawful non-citizen” liable to be detained under s 189 of the Act and removed from Australia as soon as reasonably practicable pursuant to s 198.  It may be assumed that pursuant to s 254 of the Act the Secretary of the respondent’s Department gave notice to the applicant as a “removee” that he would be kept in “immigration detention” pending removal from Australia under s 198 of the Act, and that he was so detained from 5 July 2003.  

4                     By an application filed in the Western Australia District Registry of the Court on 10 July 2003, the applicant challenged the validity of the decision to cancel the visa and to detain the applicant.  The challenge is based, primarily, on the constitutional ground that the applicant is neither an immigrant nor an alien and that it is beyond the constitutional power of the Commonwealth Parliament to purport to legislate to provide for his removal from Australia.  The decision to cancel his visa is also attacked on the ground of denial of natural justice.  The applicant seeks interlocutory orders that the respondent be restrained from removing the applicant from Australia and from continuing to detain the applicant pending the hearing and determination of the application for prerogative relief. 

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

6                     It was conceded by the respondent that there was a serious question to be tried on the constitutional issue.  That question is to be resolved by the High Court in the matter of Shaw v Minister for Immigration and Multicultural and Indigenous Affairs, heard by the High Court on 17 June 2003. 

7                     If it is acknowledged that an arguable issue is raised in a matter before the Court as to the lawfulness of an executive act that has deprived a person of his or her liberty, consideration must be given to exercise of the power provided by s 23 of the Federal Court Act.  Usually a person will be entitled to such an order where there is a real argument that the deprivation of liberty is unlawful.  (See:  Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420 per French J at [27]). 

8                     I am satisfied that in the particular circumstances of this case the balance of convenience falls in favour of an interim order being made for the release of the applicant on appropriate conditions.  The matters to which I have had regard are the applicant’s age, the counselling and rehabilitation effected during his incarceration, the supervision to be provided under the conditions of parole, the family support available, and that the overriding interests of the community will be met by the order being made subject to appropriate conditions. 

9                     Upon the interlocutory order being made the proceeding should be transferred to the New South Wales Registry being the proper place for supervision of the order.  The matter has no connection with the Western Australian Registry apart from the location of the solicitors instructed by the applicant.

Associate:

Dated:              8 September 2004