FEDERAL COURT OF AUSTRALIA

Dong Tan Thanh v Minister for Immigration and Citizenship [2009] FCA 732

DONG TAN THANH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and SECRETARY FOR IMMIGRATION AND CITIZENSHIP

NSD 560 of 2009

GRAHAM J

3 JULY 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The application filed 12 June 2009 be amended by adding the letter “h” to the family name of the applicant “Than”.

2.         The first respondent’s Notice of Motion filed 29 June 2009 be amended to show the name of the applicant as “Tan Thanh Dong, also known as Dong Tan Thanh”.

3.         Judgment be given for the first respondent against the applicant in relation to the whole of the proceeding in accordance with s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

4.         That the proceeding against the second respondent, who has filed a submitting appearance, be dismissed.

5.         The applicant pay the Respondent Minister’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          These proceedings were commenced by an Application filed 12 June 2009.  The applicant was identified in the application as ‘Dong Tan Than’.  The third name mentioned is in fact correctly spelt ‘Thanh’ and I have earlier today ordered that the application be amended by adding the letter ‘h’ to the applicant’s family name ‘Than’.  The applicant’s case is perhaps better understood by reference to an affidavit filed in support of the Application rather than by reference to the somewhat bland details of the applicant’s claim contained in the Application itself.

2                          The affidavit to which I refer is one affirmed by the applicant on 12 June 2009.  The suggestion in the affidavit is that the applicant was detained at the Villawood Detention Centre in Sydney as an illegal non-citizen in Australia pending his removal from the country and that a letter was sent to him on or about 21 July 2008 by the respondents or one of them following the handing down of the judgment of a Full Court of this Court in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 (‘Sales’) on 17 July 2008.

3                          The suggestion contained in the affidavit was that the letter informed the applicant that as a result of the recent decision in Sales, a decision to cancel a ‘transitional (permanent) visa’ held by the applicant was now regarded as legally ineffective.  The affidavit suggested that the applicant was released from detention on 21 July 2008 and re-detained during November 2008 following the provision to him of a further letter explaining that as a result of the retrospective application of the Migration Legislation Amendment Act (No 1) 2008 (Cth) the cancellation of the applicant’s visa was valid, and that he was again liable to be detained and removed under the Migration Act 1958 (Cth) (‘the Act’).

4                          As it transpires the affidavit of the applicant affirmed 12 June 2009 is nothing other than a tissue of lies.  Under cross-examination the applicant acknowledged that he had never received a letter informing him that in the light of the decision in Sales the decision to cancel any visa held by him was now regarded as legally ineffective.  Furthermore, he acknowledged that he had never been released from custody at Villawood on or about 21 July 2008 or at all, and that he had never been ‘re-detained’ during November 2008.  When asked to explain the inconsistencies between what he had affirmed and the truth he simply indicated that in preparing his affidavit he had been helped by someone else, and that he did not fully understand everything contained in his affidavit. 

5                          Whilst the applicant has been assisted by an interpreter on each of the occasions that the matter number NSD 560 of 2009 has been before the Court, it is apparent that he is reasonably fluent in the English language and able to read words that are written in English.

6                          The matter presently before the Court is a Notice of Motion filed 29 June 2009 by the first respondent, the Minister for Immigration and Citizenship, in which an order is sought dismissing the applicant’s Application under s 31A of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court of Australia Act’) on the basis that it has no reasonable prospect of success.  Section 31A relevantly provided:

‘31A(2)    The Court may give judgment for one party against another in relation to the whole … of a proceeding if:

(a)        the first party is defending the proceeding …; and

(b)        the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)     For the purposes of this section, … a proceeding … need not be:

(a)        hopeless; or

(b)        bound to fail;

for it to have no reasonable prospect of success.’

7                          Section 31A of the Federal Court of Australia Act 1976 (Cth) was inserted into the Federal Court of Australia Act by the Migration Litigation Reform Act 2005 (Cth).  The effect of s 31A was to soften the test for a successful application for summary judgment as stated by the High Court in Theseus Exploration and N.L. v. Foyster (1972) 126 CLR 507 and also the test for a successful application for summary dismissal as stated by Barwick CJ in General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125.

8                          In his Second Reading Speech in the House of Representatives (Hansard 10 March 2005 at p3) the Attorney-General said, amongst other things:

‘The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. …’

A like observation was made by the Minister delivering the Second Reading Speech in the Senate (Hansard 11 May 2005 at p.139).

9                          The evidence relied upon by the Minister to support the application for summary dismissal is to be found in an affidavit of Henri Marc Legeret sworn 29 June 2009 and an affidavit of Katrina Talde Morales Dunn sworn 29 June 2009. 

10                        It is apparent that following his engagement in serious criminal activity in South Australia the applicant was detained at the Villawood Detention Centre on 21 June 2008.  His movements from the Villawood Detention Centre between that date and 7 February 2009 were confined to movements to enable him to attend hearings in the Administrative Appeals Tribunal and in the Refugee Review Tribunal and to obtain medical assistance.  It is apparent, as the applicant readily conceded in cross examination, that he had never been released from custody following his detention at the Villawood Detention Centre on 21 June 2008. 

11                        The evidence establishes that the appellant arrived in Australia by Qantas flight 82 on 11 April 1985.

12                        On 3 May 1994 he was granted a class BF subclass 155 Resident Return (five year unlimited) visa.  On 12 May 1994 he departed from Australia on Singapore Airlines flight SQ228 returning on 18 August 1994 on Singapore Airlines flight SQ227.  On 1 September 1994 the visa previously issued to the applicant continued in effect on and after 1 September 1994 as a transitional (permanent) visa permitting the applicant as the holder thereof to:

(a)        travel to and enter Australia during the remainder of the period during which the permanent return visa would have permitted the holder to do so [the balance of the five year period]; and

(b)        remain in Australia indefinitely.  (See Regulations 3(1)(a)(ii) and 7 of the Migration Reform (Transitional Provisions) Regulations which commenced on 1 September 1994).

13                        On 12 June 1996 the applicant departed Australia on Qantas flight 43 returning on 15 December 1996 on Qantas flight 160. 

14                        On 22 March 2000 the applicant was granted a further class BB subclass 155 visa.  By virtue of s 82(2) of the Act any earlier substantive visa within the meaning of s 5(1) of the Act ceased to have effect.  Section 82(2) of the Act provided:

‘82(2)  A substantive visa held by a non-citizen ceases to be in effect if another substantive visa … for the non-citizen comes into effect.’ (emphasis added)

15                        On 24 March 2000 the applicant departed Australia on Vietnamese Airlines flight VN782 returning on 2 June 2000 on Qantas flight 82.  The applicant again departed on Vietnamese Airlines flight VN780 on 20 March 2001 returning to Australia on Vietnamese Airlines flight VN783 on 22 April 2001. 

16                        By letter dated 10 June 2008 an officer of the Department of Immigration and Citizenship wrote to the applicant under the heading ‘Notice of visa cancellation under subsection 501(2) of the Migration Act 1958’.  The first two paragraphs of that letter were expressed as follows:

‘I refer to the Notice of Intention to Consider Cancellation dated 7 November 2007, which informed you that the delegate of the Minister for Immigration and Citizenship intended to consider whether your Return (Residence) (Class BB) Subclass 155 (Five year Resident Return) visa may be cancelled under subsection 501(2) of the … Act … and, if it was liable to cancellation, whether it should be cancelled.

You responded in writing on 21 January 2008 and 28 April 2008.  After careful consideration of your response and the matters listed in the Notice of Intention of Intention (sic) to Consider Cancellation, the delegate of the Minister has decided to cancel your visa pursuant to subsection 501(2) of the Act.’

17                        Attached to the letter to the applicant was a document entitled ‘statement of reasons for cancellation of visa under s501(2) of the Migration Act 1958’.  The Statement was signed by a delegate of the Minister for Immigration and Citizenship.  The preamble to the Statement of Reasons provided as follows:

‘This statement relates to cancellation of the Class BB, Subclass 155 Return (Five year Resident Return) visa held by Mr DONG at the time of my decision.  Any other visas held by the visa holder will be cancelled by operation of law, pursuant to s501F(3) of the Act.’

18                        Section 501(2) of the Act relevantly provided:

‘501(2)    The Minister may cancel a visa that has been granted to a person if:

(a)   the Minister reasonably suspects that the person does not pass the character test; and

(b)   the person does not satisfy the Minister that the person passes the character test.’

19                        Section 501F(3) of the Act provided:

‘501F(3)  If:

(a)   the person holds another visa; and

(b)   that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;

the Minister is taken to have decided to cancel that other visa.

20                        The circumstances of this case render the decision of the court in Sales quite irrelevant.  This is a case where a visa had been granted to the applicant and that visa had been cancelled pursuant to s 501(2) of the Act.  The effect of the cancellation was to render the applicant an unlawful non-citizen liable to detention within the meaning of s 189 of the Act and to removal pursuant to the later provisions in Division 7 of Part 2 of the Act.  It is apparent that the applicant has no reasonable prospect of successfully prosecuting proceeding number NSD 560 of 2009 within the meaning of s 31A of the Federal Court of Australia Act.

Associate:

Dated:         7 July 2009

The Second Respondent filed a submitting appearance.