Luu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 369

FEDERAL COURT OF AUSTRALIA

Luu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 369 MIGRATION – deportation order – deportee in immigration detention pending deportation – decision not to revoke deportation order – decision not to release deportee from immigration detention pending deportation – whether deportee was accorded procedural fairness in the making of the decisions – whether there was evidence upon which a risk of deportee absconding if released from immigration detention could be found – whether decisions so unreasonable that no reasonable person could have made them. MIGRATION – deportee in immigration detention – decision not to release deportee from immigration detention pending deportation – whether protection of Australian community a relevant consideration to decision. MIGRATION – deportee in immigration detention – decision not to release deportee from immigration detention pending deportation – whether continued detention was indeterminate or punitive and was thereby in contravention of Migration Act 1958 – whether continued detention was indeterminate preventative or punitive and was thereby in contravention of Articles 7, 9 and 10 of the International Covenant on Civil and Political Rights 1966 so that such contraventions were relevant matters which had to be taken into account in making the decision. Administrative Decisions (Judicial Review) Act 1977 (Cth) Migration Act 1958 (Cth), ss 206, 253, 200, 417, 206 Wartime Refugees Removal Act 1949 (Cth)

Minh v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 304 – referred to Annetts v McCann (1990) 170 CLR 596 – referred to Ainsworth v Criminal Justice Commission (1997) 175 CLR 564 – referred to Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539, [2000] FCA 1113 – referred to Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 887 – referred to Betkhoshabeh v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 504, [1999] FCA 470 - discussed Tuiletufuga v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 389 – referred to Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 1227, (2000) 177 ALR 306, [2000] FCA 949 – referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 – referred to Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 – referred to Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 - applied Kioa v West (1985) 159 CLR 550 –referred to Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 – referred to Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362, [2002] FCA 589 - discussed Luu v Renevier (1989) 91 ALR 39 - discussed Tickner v Bropho (1993) 114 ALR 409 – referred to Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [1999] HCA 21 - cited Minister for Immigration & Multicultural Affairs v Betkhoshabeh (1999) 55 ALD 609, [1999] FCA 980 – referred to Attorney-General (NSW) v Quin (1990) 170 CLR 1 – referred to Koon Wing Lau v Calwell (1949) 80 CLR 533 – discussed Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 - discussed Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371, [2000] FCA 803- discussed Tam v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 373 – referred to Zadvydas v Davis S33 US 678 – referred to R (on the application of Saadi) v Secretary of State for the Home Department [2001] 4 All ER 961 – referred to Perez v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 287, [1999] FCA 1342, [2002] FCA 450 - discussed Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 – referred to Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389 - discussed Lokeni Hui v Minister for Immigration & Multicultural Affairs [1998] FCA 1563 – referred to Nguyen v Minister for Immigration & Multicultural Affairs [2001] FCA 705 – referred to Dang v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 28, (1999) FCA 726 - discussed Ceskovic v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 559 - discussed Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 – referred to Msilanga v Minister for Immigration Local Government and Ethnic Affairs (1991) 24 ALD 353 – referred to Minister for Immigration Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 – referred to Gray v Minister for Immigration Local Government & Ethnic Affairs [1992] FCA 1021 – referred to Pylka v Minister for Immigration & Multicultural Affairs [1997] FCA 1503 – referred to Davidson v Minister for Immigration & Multicultural Affairs [1999] FCA 575 – referred to Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, [2000] FCA 1385 - discussed Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 – referred to Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 180 ALR 1 – referred to MINH DUNG LUU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS V 995 of 2001 GRAY, NORTH & MANSFIELD JJ 27 NOVEMBER 2002 MELBOURNE