Untan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 35 (14 February 2003)

Last Updated: 7 March 2003

FEDERAL COURT OF AUSTRALIA

Untan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 35

MIGRATION -finding of denial of procedural fairness by primary judge - effect of High Court decision on operation of s 474 - application for release from detention pending appeal - no discretionary factors for Court's consideration - whether decision of primary judge final and binding so as to prevent release.

Migration Act 1958 (Cth) ss 474 and 501(2)

Untan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1448 referred to

S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 2 applied

Minister for Immigration & Multicultural & Indigenous Affairs v Bhardwaj [2002] HCA 11; (2002) 76 ALJR 598 referred to

Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 followed

Re Macks; exparte Saint [2000] HCA 62; (2000) 204 CLR 158 considered

ION UNTAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1359 OF 2002

LEE, WHITLAM & JACOBSON JJ

14 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1359 OF 2002

BETWEEN:	ION UNTAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LEE, WHITLAM & JACOBSON JJ
DATE OF ORDER:	14 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

Upon the appellant filing in the registry of the Court an undertaking, of which a copy is to be kept in the offices of the Department, that he understands and will abide by the conditions of his release set out herein, he be released from immigration detention on the following conditions:

1. The appellant reside with his wife and children at 4 Cuthbert Crescent, Revesby in the State of New South Wales.

2. The appellant to notify the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") of any change of his residential address within 24 hours of the date of such change.

3. The appellant report:

a) once a week to the Department's Parramatta office; and

b) twice a week to Revesby Police Station at River Road (corner Spinkx Avenue), Revesby in the State of New South Wales; and

c) in accordance with the parole conditions established by the New South Wales Probation and Parole Service.

4. The appellant notify the Department of any parole conditions to which he is subject within 24 hours of being notified of such conditions.

5. The appellant not leave the State of New South Wales without the permission of an officer in the compliance Section of the Department.

6. The appellant attend any hearing before the Federal Court of Australia upon the determination of these proceedings by the Court.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1359 OF 2002

BETWEEN:	ION UNTAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LEE, WHITLAM & JACOBSON JJ
DATE:	14 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is a motion for the interim release of the appellant pending the determination of an appeal from the decision of Branson J heard on 26 November 2002; Untan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1448. The question before her Honour was whether a decision made by the Minister under s 501(2) of the Migration Act 1958 (Cth) ("the Act") to cancel the appellant's visa was vitiated by denial of procedural fairness.

2 Her Honour held that the Minister's decision was made in contravention of a statutory obligation to afford procedural fairness to the appellant but that that the effect of s 474 of the Act was to render the decision immune from judicial review. The appeal from her Honour's judgment is listed for hearing in the May 2003 sittings. The appellant submitted that pending the determination of the appeal, he ought to be released from migration detention because there are serious question as to whether the cancellation of the visa was valid.

3 In support of this proposition the appellant's counsel relied upon the recent decision of the High Court in Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 2 ("S157") handed down on 4 February 2003 and upon an earlier decision of the High Court in Minister for Immigration & Multicultural & Indigenous Affairs v Bhardwaj [2002] HCA 11; (2002) 76 ALJR 598. The effect of the submissions made by counsel for the appellant was that if the decision in S157 had been handed down before her Honour delivered judgment in November last year, the appellant would have been successful.

4 It is fairly clear that this submission is correct and that accordingly the appellant would not now have the status of an unlawful non-citizen. The Minister's principal submission was that there was no power to grant interlocutory relief. He submitted that the decision to the contrary in Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 ("VFAD") was plainly wrong and ought not to be followed. He did not point to any balance of convenience considerations which would weigh against the granting of interlocutory relief. We do not think that on the basis of the limited argument before the Court on this motion, we could say that the decision in VFAD is plainly wrong.

5 The only other submission made by counsel for the Minister was that Branson J's decision is final and binding unless and until it is overturned (see Re Macks; ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 ("Re Macks")). However her Honour did not make an order affirming the decision of the Minister to cancel the visa. Her Honour merely refused the application for issue of a prerogative writ.

6 Accordingly in our view the decision in Re Macks does not preclude this Court from granting interlocutory relief. If the appellant is to be released, the conditions upon which such release should be made pending a determination of the appeal have been agreed between the parties. In our view an order ought to be made causing his release on those conditions.

7 The costs of the motion are to be the costs of the appeal. Accordingly the orders which we will make are that upon the appellant signing an undertaking in the form of item 7 of the minute filed with the Court, he be released from detention on the terms set out in the minute.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 6 March 2003

Counsel for the Applicant:	R L Butler
Solicitor for the Applicant:	Public Interest Advocacy Centre
Counsel for the Respondent:	J D Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 February 2003
Date of Judgment:	14 February 2003