Applicant M 117 of 2007 v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Judgment Date: 05 December 2008
• Neutral Citation: [2008] FCA 1838
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Applicant M 117 of 2007 v Minister for Immigration and Citizenship [2008] FCA 1838

MIGRATION – the Minister cancelled the applicant’s visa under s 501(3) of the Migration Act 1958 (Cth) – applicant made representations to the Minister under s 501C of the Migration Act, but the Minister decided not to revoke her decision to cancel the applicant’s visa – applicant unsuccessfully sought judicial review in the Federal Magistrates Court and did not seek to appeal – applicant filed an application for constitutional writs in the High Court two years after Minister’s decisions – hearing remitted to this Court – whether Minister’s decisions were in error – no basis for an inference that Minister’s decisions were made for the improper purpose of extraditing the applicant to China to face alleged criminal charges – Minister did not take into account irrelevant consideration and did not decide unreasonably – legitimate basis exists for finding that applicant did not pass the character test – grounds not made out – application dismissed

ESTOPPEL – Anshun estoppel – whether applicant estopped from bringing further judicial review proceedings – grounds of review available in earlier proceeding – delay not attributable to the respondent – applicant had legal representation in earlier proceeding – no “special circumstances” exist to justify bringing of present application

PRACTICE AND PROCEDURE - whether application for an enlargement of time to seek constitutional writs ought to be allowed – no satisfactory explanation for delay – prospects of success does not warrant extension of time – extension of time not necessary to do justice between the parties – application refused

Migration Act 1958 (Cth) ss 4(1), 4(4), 5, 501, 501C

High Court Rules 2004 rr 4.02, 25.06.1, 25.07.2

Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 referred to
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 referred to
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 cited
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 cited
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 cited
Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 402 cited
Kruger v The Commonwealth (1997) 190 CLR 1 referred to
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to
Wong v Minister for Immigration and Indigenous Affairs (2004) 146 FCR 10 referred to
BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v Ball (2004) 138 FCR 450 cited
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 234 ALR 114 cited
Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 referred to

APPLICANT M117 OF 2007 v MINISTER FOR IMMIGRATION AND CITIZENSHIP

VID 1101 OF 2007

KENNY J

5 DECEMBER 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1101 OF 2007

BETWEEN:	APPLICANT M117 OF 2007 Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	KENNY J
DATE OF ORDER:	5 DECEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for an enlargement of time be refused.

2. The application for an order to show cause be dismissed.

3. The applicant pay the respondent’s costs of the proceeding.

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1101 OF 2007

BETWEEN:	APPLICANT M117 OF 2007 Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	KENNY J
DATE:	5 DECEMBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1 In this proceeding, the applicant challenges the Minister’s decision to cancel a bridging visa granted to the applicant in May 1997 and the Minister’s subsequent decision not to revoke that decision. The decisions under challenge were made in early June 2005 and on 12 October 2005 respectively. This is not the first time that these two decisions have been the subject of judicial review. For the reasons I am about to state, I would dismiss his application.

2 The applicant is a citizen of the People’s Republic of China. The applicant arrived in Australia on 1 February 1997 on a Temporary Business Entry (Class UC) visa, subclass 456. He was subsequently granted a further subclass 456 visa, which expired on 26 May 1997.

3 The history of the applicant’s further visas is a complicated one. On 23 May 1997, the applicant was granted a Bridging visa A (Class WA) visa, subclass 010 and also applied for a Business – Long Stay visa, subclass 457. A delegate of the Minister refused his application for a long stay business visa on 16 June 1998. The applicant unsuccessfully applied to the Migration Internal Review Office, which affirmed the delegate’s decision on 7 September 1998. The bridging visa granted in May 1997 allowed the applicant to remain in Australia until 28 days after he was notified of the decision of the Migration Internal Review Office.

4 Also in June 1997, Interpol contacted the Australian Federal Police regarding serious criminal offences allegedly committed by the applicant in China before he entered Australia. A year later, in June 1998, the Australian Federal Police received an arrest warrant issued by Tianjin Public Security Bureau in China. The Police passed this information to officers of the Minister’s Department.

5 On 8 December 1998, the applicant was granted a Bridging visa A and lodged an application for a protection visa. A delegate of the Minister refused the applicant’s protection visa application on 20 January 1999. The applicant unsuccessfully applied for review by the Refugee Review Tribunal, which affirmed the delegate’s decision on 17 December 1999. The Tribunal’s decision was set aside by this Court on 18 March 2008. The bridging visa granted in December 1998 expired 28 days after the Tribunal’s decision, that is, on 14 January 2000. Assuming (as the Minister’s Department did) that the applicant had no other visa than this visa, the applicant became an unlawful non-citizen after 14 January 2000.

6 Departmental efforts to locate the applicant failed until 24 February 2004, when the applicant was stopped by the Victorian police for a traffic offence. The police notified the Department and the applicant was taken into immigration detention. Shortly afterwards, on 27 February 2004, the applicant applied for a Bridging visa E. A delegate of the Minister refused this application on 2 March 2004. The applicant unsuccessfully applied for review by the Migration Review Tribunal, which affirmed the delegate’s decision on 12 March 2004.

7 Two days earlier, on 10 March 2004, Interpol issued a “Red Notice” setting out information relating to the allegations made against the applicant by the Chinese authorities. Under the heading “Fugitive wanted for prosecution” the Interpol Red Notice gave particulars of the alleged fugitive, including name, birth, nationality, and physical description, as well as particulars of “judicial information”. The “Summary of facts of the case” under this latter heading read as follows:

CHINA, Tianjin: On 20 December 1996, [the applicant] and two accomplices kidnapped a 15-year-old boy and killed him as they did not receive the ransom of RMB 1,5000,000 (EUR 145,000) they had demanded.

The charge was said to be kidnapping and murder. On 23 June 2004, the applicant was informed that a warrant for his arrest had been issued by the Chinese authorities. The applicant remained in immigration detention in Australia.

8 On 23 May 2005, a Departmental officer examined the relevant files and decided that the applicant had never been correctly notified of the decision of the Migration Internal Review Office in September 1998 affirming the delegate’s decision to refuse the applicant a long stay business visa. A consequence of this failure was that the bridging visa granted in May 1997 was still current. Accordingly, on the basis of the Departmental officer’s decision, the applicant was released from detention.

9 On 25 May 2005, Departmental officers interviewed the applicant and issued him with a notice of intention to consider cancellation of the May 1997 bridging visa. After the interview, a delegate of the Minister decided to cancel this bridging visa and the applicant was detained in immigration detention. On 26 May 2005, the applicant applied to the Migration Review Tribunal for review and, on 7 June 2005, the Tribunal set aside the delegate’s decision.

10 In early June 2005, the Minister at the time made one of the decisions challenged in this proceeding. This was the Minister’s decision to cancel the applicant’s bridging visa under s 501(3) of the Migration Act 1958 (Cth). By a letter dated 9 June 2005, the applicant and his legal representatives were informed of the cancellation decision and were also given, amongst other things: (1) a statement of the Minister’s reasons; (2) the Interpol Red Notice; (3) the warrant of arrest issued by the Tianjin Public Security Bureau; and (4) Ministerial General Direction Number 21 – “Visa Refusal and Cancellation under...