Re Wen Shao Zhen v the Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 32 (12 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: WEN SHAO ZHEN
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G75 of 1991
FED No. 67
Number of pages - 4
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION

CATCHWORDS

Practice and Procedure - abuse of process - deportee released from custody pending judicial review application - breach of conditions of release - failure to report as required - serious breach - implied incidental power of Court to dismiss application.

Migration Act 1958

Schoenmakers v. Director of Public Prosecutions (1991) 30 FCR 488

HEARING

PERTH, 10 February 1993
12:2:1993

Counsel for the Applicant: Mr I. Curlewis

Solicitors for the Applicant: Phillips Fox

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

1. The application do stand dismissed unless on or before 26 February 1993 the applicant surrenders herself to an officer of the respondent.

2. The applicant pay the respondent's costs of the application.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

FRENCH J. Wen Shao Zhen is a citizen of the Peoples Republic of China who was born on 25 September 1954. On 3 November 1989 she applied for temporary entry to Australia as a student trainee. In December 1989 she was granted a visa authorising her to travel to and remain in Australia for a period of six months. Ms Wen arrived at Perth on 6 January 1990 and was granted a temporary entry permit for a period of six months. On 27 June 1990 she applied for and was granted a further temporary entry permit expiring on 19 July 1991. On 1 July 1991, Ms Wen was arrested pursuant to s.92 of the Migration Act 1958 on the ground that the arresting officer reasonably supposed her to be an illegal entrant. The arrest was evidently based upon a belief that she had made a false statement about her marital status when applying for entry. Her temporary entry permit was cancelled and the Minister signed a deportation order under s.60 of the Migration Act 1958 on 17 July 1991.

2. On 19 July 1991, Ms Wen filed an application in this Court seeking an order of review of the decision to cancel her temporary entry permit and to deport her from Australia. Programming directions for the filing of affidavits were made by Lee J. on 19 July 1991 at the first directions hearing. At that time the Minister gave an undertaking not to deport Ms Wen before 2.15pm on 22 July. On 22 July 1991 an order was made by His Honour in the following terms:

"The decision to take the applicant into custody be
suspended upon the undertaking of the respondent not
to deport the applicant and subject to the tender of
an appropriate minute of consent as to the conditions
of release."

3. A consent order was made by Lee J. on the same day in the following terms:

"Upon the undertaking of the Respondent not to deport
the Applicant until the resolution of these
proceedings THE COURT BY CONSENT ORDERS THAT:
1. The release of the Applicant from
Respondent's custody be on the following
conditions:
(a) The Applicant report each Monday and
Friday (or such other days to which the
Respondent gives its written consent)
between the hours of 10.00am and 4.00pm at
the Respondent's premises at 1260 Hay
Street, West Perth.
(b) The Applicant enter into a bond in the sum
of $10,000 and consents to a charge
securing this amount over her interest in
the property known as 15 Lumeah Street,
Armadale in favour of the Respondent,
which charge is exercisable upon the
Applicant breaking her conditions of
release subject to Court order to that
effect.
(c) The Applicant continue to reside at 15
Lumeah Street, Armadale and that if the
Applicant seeks to change her residence
that seven days prior written notice be
given to the Respondent of the intended
address.
3. The Respondent continue to hold the
Applicant's passport until the resolution
of these proceedings.
4. Liberty to each party to apply on short
notice.
5. Costs reserved."

Pursuant to the order Ms Wen reported to the Department at its Perth office on Monday and Friday of each week. In or about June 1992 the Department agreed to allow her to report once a week instead of twice weekly. She signed a document entitled Undertaking to Abide by Conditions of Release.

4. The last occasion on which Ms Wen reported to the Department's office was 4 November 1992. She has not communicated since then with the Department. Nor have her solicitors had any contact with her since that time. The Minister now moves for the application to be dismissed. The source of the power for the Court to make such an order was not enunciated in support of the motion and no authority was cited. However in Schoenmakers v. Director of Public Prosecutions (1991) 30 FCR 488, the Full Court held that a sufficiently serious breach of an interlocutory order will enliven the Court's jurisdiction, as a matter of implied incidental power, to dismiss proceedings. In that case the appellant in an appeal pending in relation to extradition proceedings breached the conditions of his bail and did not appear at the hearing of the appeal as required although he was there represented by counsel. The Court ordered that the appeal stand dismissed unless, within a time specified in the order, the appellant appeared personally before a Judge of the Court to pursue the appeal. In the present case, the applicant has breached a condition upon which she was released from custody. The breach is serious and continuing and to continue to entertain her application would be to countenance an abuse of the process of the Court. Allowing for the no doubt faint possibility that the applicant may decide to give herself up to the Department, I will condition the dismissal on her failure to surrender to an officer of the respondent within fourteen days.