FUD18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 03 February 2020
• Neutral Citation: [2020] FCA 48
• Court: Federal Court
• Date: 03 February 2020

FEDERAL COURT OF AUSTRALIA

FUD18 v Minister for Home Affairs [2020] FCA 48

File number(s):	NSD 1705 of 2018
Judge(s):	THAWLEY J
Date of judgment:	03 February 2020
Catchwords:	MIGRATION – application for –declarations and writs of prohibition and mandamus – whether Minister could not lawfully infer from an Interpol red notice that the applicant would present a risk to the Australian community or a segment of it – whether Minister can have regard to information outside of the Interpol red notice under s 501(6)(h) – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 65(1)(a), 65(1)(b) 501(1), 501(6)(d), 501(6)(g) 501(6)(h), 503A Migration Regulations 1994 (Cth), Schedule 2, Public Interest Criterion 4003(a)
Cases cited:	George v Rockett (1990) 170 CLR 104 Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 Minister for Immigration and Ethnic Affairs v Sciascia (1991) 31 FCR 364 Minister for Immigration and Multicultural Affairs v Godley (2005) 141 FCR 552 Potter v Minehan (1908) 7 CLR 277
Date of hearing:	31 January 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	102
Counsel for the Applicant:	Mr T. Brennan, Mr N. Sedaghati
Solicitor for the Applicant:	Kinslor Prince Lawyers
Counsel for the Respondent:	Mr G. Johnson SC, Mr M. Cleary
Solicitor for the Respondent:	Australian Government Solicitors

ORDERS

		NSD 1705 of 2018
BETWEEN:	FUD18 Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	THAWLEY J
DATE OF ORDER:	3 February 2020

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The judgment not be published beyond the parties until further order.

3. The parties have until 4:00pm on 7 February 2020 to advise the Court of any orders for redaction sought.

4. Unless either party applies by 4:00pm on 7 February 2020 for a different order with respect to costs, the applicant pay the respondent’s costs.

5. If either party applies for a different order as to costs in accordance with order 4:

   1. the party applying for such an order file with the application for costs:

      1. a submission of not more than 2 pages identifying the order sought and why it is contended such an order should be made;

      2. any evidence proposed to be relied upon;

   2. the party against whom such an order is sought file within 3 days of receipt of the application:

      1. a responding submission of not more than 2 pages; and

      2. any evidence relied upon.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

BACKGROUND

1. The applicant is a Vietnamese citizen. On 8 September 2000, the applicant’s wife was granted a subclass 126 Independent visa by the Australian Embassy in Ho Chi Minh City. The applicant and his daughters were granted the same visas as members of the family unit. They came to Australia shortly thereafter.

2. The applicant’s wife and two daughters remained in Australia until they were granted Australian citizenship on 22 September 2004. The applicant did not become an Australian citizen. The applicant spent the majority of his time in Vietnam where he was a senior executive in a large State-owned corporation. He had been appointed a director of Vinashin Finance Company (VFC) in March 2020.

3. After being granted citizenship in 2004, the applicant’s wife and youngest daughter returned to Vietnam to live with the applicant. The elder daughter remained in Australia.

4. The applicant’s visa expired on 8 September 2005.

5. The applicant was appointed as the General Director of VFC in November 2005. After a restructure, he was appointed in June 2006 as a member of the Board of Directors and the Head of the Supervisory Board of the Vietnam Shipbuilding Industry Group by the Prime Minister of Vietnam. He was appointed as the Chief Financial Officer on 15 June 2009.

6. The applicant departed Vietnam on 28 July 2010 and returned to Australia on 30 July 2010 on a subclass 456 Business (Short Stay) visa. His wife and younger daughter came with him. The family have lived permanently in Australia since that time.

7. The applicant lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) / Partner (Residence) (Class BS) (Subclass 801) visa on 24 August 2010 and was granted a Bridging A visa on the basis of that application.

8. On 18 February 2011, the Investigative Security Agency of Vietnam issued an arrest warrant for the applicant. An Interpol Red Notice (IRN) was published in relation to the applicant on 11 March 2011. The IRN included:

FUGITIVE WANTED FOR PROSECUTION

1. IDENTITY PARTICULARS

[The applicant was identified]

2. JUDICIAL INFORMATION

SUMMARY OF FACTS OF THE CASE: VIETNAM, Hanoi, from 01 January 2005 to 28 July 2010: While being the financial Director of Vinashin Corporation, [the applicant] had activities violating the State’s regulation on economic management. It caused serious consequence to his Corporation (State Company). After committing crime, he fled away. Consequently, [the applicant] is wanted by the Police of Vietnam for deliberately acting against the State’s regulations on economic management, causing serious consequences (stipulated in Article 165 – Criminal Code of Vietnam).

ADDITIONAL FACTS OF THE CASE: N/A

ACCOMPLICES: N/A

ARREST WARRANT OR JUDICIAL DECISION 1

CHARGE: Deliberately Acting Against the State’s Regulations on Economic Management, Causing Serious Consequences

LAW COVERING THE OFENCE: Article 165 – Criminal Code of Vietnam

MAXIMUM PENALTY POSSIBLE: 20 years. Imprisonment

TIME LIMIT FOR PROSECUTION OR EXPIY DATE ARREST WARRANT: None

ARREST WARRANT OR JUDICIAL DECISION HAVING THE SAME EFFECT: No.

68/ANDT, issued on18 February 2011 by the investigative security agency of Vietnam in Vietnam

Name of signatory: [The applicant’s] Copy of Arrest Warrant available at the General Secretariat in the Language used by the Requesting Country.

3. ACTION TO BE TAKEN IF TRACED

LOCATE AND ARREST WITH A VIEW TO EXTRADITION

The country at the request of which the present notice has been published has given assurances that extradition will be sought upon arrest of the person, in conformity with its national laws and/or the applicable bilateral and multilateral treaties.

PROVISIONAL ARREST

For the country at the request of which the present notice has been published, this Red Notice is to be treated as a formal request for provisional arrest. Please apply provisional arrest, in conformity with national laws and/or the applicable bilateral and multilateral treaties.

Immediately inform INTERPOL Hanoi and the ICPO-INTERPOL General Secretariat that the fugitive has been found.

9. Although the IRN was issued on 11 March 2011, it is not clear exactly when the...