FEDERAL COURT OF AUSTRALIA

Verlicia v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1446

MIGRATION – interim injunction granted to restrain forced return of teenage female to country of origin – compelling discretionary factors involved

Migration Act 1958 (Cth) s 189

VERLICIA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1612 OF 2004

CONTI J

5 NOVEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.      The respondent be restrained from causing the applicant to be deported from Australia until 4.00 pm on Friday 12 November 2004, or until such later time as may be further ordered.

2.      The costs of the application for interlocutory relief be reserved.

3.      Liberty be granted to either party to apply on one day’s prior notice in writing to the other.

4.      The proceedings be stood over to the list of the Court’s duty judge at 10.15 am on Friday 12 November 2004.

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

REASONS FOR INTERLOCUTORY ORDER

1                     The applicant is an Indonesian national, born on 9 June 1986, and thus 18 years of age.  She was subject to an order for removal from Australia today, 5 November 2004, by a flight due to depart Sydney Airport at 4.15pm, that being the same day as the present proceedings were commenced informally.

2                     The applicant was recently placed in immigration detention, pending her removal from Australia.  That took place in the unfortunate circumstances of the applicant being mid-way through her Higher School Certificate examinations at Kogarah High School, and whilst she was residing with her uncle at his home in the Kogarah district, which he apparently owns.

3                     The applicant’s history in Australia may be summarised relevantly as follows:

(i)         the applicant, her parents and older sister had arrived in Australia in December 2001, when she was 15 years of age; earlier in November 2001, her father had applied for a visitor’s visa for the family members at the Australian embassy in Jakarta, which was duly granted;  a condition of that visa (condition 8503) was apparently that the holder is prevented from applying for a substantive visa, save for a protection or bridging visa, whilst being present in Australia;

(ii)        upon arrival in Australia, the applicant’s parents had approached a migration agent and former practising solicitor Ms Byers for advice as to obtaining a protection visa on the ground that the family members were subjected to persecution in Indonesia as ethnic Chinese Christians; Ms Byers had assisted in the assembly of the application which was made by the applicant as well as her parents and elder sister;

(iii)       in due course the Department of Immigration and Multicultural and Indigenous Affairs refused that application, and the refusal was upheld by the Refugee Review Tribunal; because doubtless of the urgency of the application, the text of the refusal and the Tribunal’s reasons for decision were not placed into evidence before me;

(iv)       upon attaining the age of eighteen years, the applicant lodged an application for a so-called close ties visa; subsequently on 9 August 2004 Ms Byers received an email from the Department to the effect that the applicant would need to apply for a waiver of condition 8503; that application was made by Ms Byers on behalf of the applicant on 28 September 2004; and

(v)        on 29 October 2004, the Department sent to the applicant a faxed response by way of rejection of the waiver application.

4                     I was informed by counsel for the applicant, who had been very recently briefed, that the professional opinion of Ms Byers had been furnished to the applicant to the effect that the applicant would be eligible for a so-called ‘close ties’ visa if the Minister waived condition 8503.

5                     The very recently retained solicitor for the applicant (Ms Magnusson) informed the Court, through counsel briefed by her, as to the following further circumstances:

(i)         the applicant resides with her uncle, who is a permanent resident of Australia;

(ii)        the applicant has ‘lost contact with her parents’;

(iii)       on 28 October 2004, a Department compliance officer Mr Jason Hill (‘Mr Hill’), who is stationed at Parramatta, attended the uncle’s home at or near Kogarah, and left at the home a card requesting the applicant’s attendance at the Department;

(iv)       in the course of a telephone conversation on 5 November 2004, Ms Magnusson was informed by the applicant that upon her attending at the Department pursuant to that request, the applicant was told by a Departmental officer (who was identified by name) who had spoken with Mr Hill that Mr Hill had said he wanted to help the applicant and would not detain her, and yet further, that upon subsequently attending by prior appointment upon Mr Hill, the applicant was told at the conclusion of the interview that ‘he [Mr Hill] would be sending me to Villawood’, an event which thereafter occurred; and

(v)        she (Ms Magnusson) had been subsequently informed by another Departmental officer (who was identified by name) that she would receive reasons for the Department’s detention decision, but that later she was informed by that officer as follows:

‘I’m sorry but I’ve just realised that I cannot send you the reasons.  It is an internal document only.’

6                     A member of the firm of solicitors retained by the Minister attended the urgently convened Court hearing, which was conducted during the Court’s luncheon time because of my commitment to a substantive commercial case being also heard by me on that day.  He assisted the Court by identifying the statutory authority upon which the Minister had purported to act by way of detaining the applicant in custody, and would be further acting in causing the applicant to be returned to Indonesia.  He submitted to the Court that the Minister relied upon s 189 of the Migration Act 1958 (Cth) in pursuing the course of deportation of the applicant from Australia, and further the Court had no discretion but to dismiss the application.

7                     The urgency of the application for an injunction, and the absence of any realistic opportunity for me to consider the alleged statutory basis for the Minister’s proposed course of action, produced the inevitable consequence that an appropriate injunction should be granted to restrain the Minister from causing the applicant to be deported until the circumstances of the action could be adequately appraised by the Court.  Consequently I was of the view that the balance of convenience lay in favour of the applicant for the grant of interlocutory relief.

8                     Without wishing to be unduly presumptuous in so doing, I would take the opportunity to draw the Minister’s attention to the most unfortunate circumstances of this youthful person having resided and undertaken education in Australia for about two and one half years, yet to have been purportedly deprived of completing her Higher School Certificate at the secondary school she has been apparently attending.  There is no suggestion that her conduct in Australia has been other than impeccable.  I appreciate the statutory obligation of the Minister and her officers to put in place the requirements of the Act, but would respectfully recommend that the Minister cause her officers to undertake an urgent review of the individual merits of this young woman being allowed to remain in this country on the basis of an appropriate visa, at lease until completion of her secondary education, if not for a longer period of time.  I appreciate there may sometimes be unfortunate implications for the administration of this complex legislation by the intervention of favourable decision-making on the part of the Minister in some situations, but not in others.  That is, however, seemingly inevitable in the very complex circumstances of this legislation. 

9                     In the meantime, I am of the view that I should intervene to grant interlocutory relief, since in the circumstances, the balance of convenience lies clearly in favour of this young woman, who has not been seeking to exploit opportunities for an illegal and dissembled presence in this country, and who may well have a sound basis for permanent relief.  It is regrettable in any event that her apprehension took place mid-way through her Higher School Certificate examinations, and that she has been unable to complete same.

10                  There are in any event serious questions of law to be resolved, which I have been unable to undertake in the short time available in the course of another hearing commitment today.  In my opinion, the Court’s intervention by appropriate interlocutory injunction should occur.  The proceedings should be adjourned for seven days to the next Duty Judge’s hearing list.

Associate:

Dated:              8 November 2004