' RESTRICTED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G29 of 1986 GENERAL DIVISION ) BETWEEN : PHANG YOOK WAH Applicant AND: W.A. MURRELL First Respondent AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Second Respondent SPENDER J. BRISBANE 21 APRIL, 1986 EXTEMPORE REASONS FOR JUDGMENT On Friday last at about 5 o'clock, Phang Yook Wah lodged an application under the Administrative Decisions (Judicial Review) Act 1977 (hereafter called "the Judicial Review Act") seeking to review the decision of the first respondent who is a stipendiary magistrate at Nambour, which decision was made on Friday, 18 April 1986 authorising the detention of the applicant until 28 April 1986. / POY That order was made by Mr. Murrell in the purported exercise of his power under s.38 of the Migration Act. That section, which is headed 'Arrest of prohibited non-citizen', provides in sub-section 1:- "An officer may, without warrant, arrest a person whom he reasonably supposes to be a prohibited non-citizen, and a person so arrested may, subject to this section, be kept in the custody of any officer or in such other custody as the Minister or an authorized officer directs." Where that person is brought before a prescribed authority, sub-section 3 requires the prescribed authority (1n this case Mr. Murrell) to:- +..ingquire anto the question whether there are reasonable grounds for supposing that that person is a prohibited non-citizen and, if the prescribed authority 1s satisfied that there are such reasonable grounds, he may, by writing under his hand, authorize the detention of that person in custody for such period as the prescribed authority 15 satisfied is reasonably required in order to enable the Minister to consider whether that person 15 a prohibited non-citizen and whether a deportation order should be made in respect of him, but otherwise the prescribed authority shall order that person to be released." That section, it seems to me, gives to the prescribed authority a discretion to authorise the detention of the person, but that detention has to be for the prescribed purposes; that 1s, for such period as the prescribed authority considers is reasonably necessary to enable the Minister to consider the status of the person, and whether a deportation order should be made in respect of him. The qualification by the words, "but otherwise the prescribed authority shall order that person to be released" manifests an intention that unless it is necessary for a person to be detained for the purpose of which ss.3 speaks, the person is to be released. There 1s a question here involving ss.3A which in terms provides:- "The period for which the detention in custody of a person brought before a prescribed authority may be authorized under sub-section (3) by that prescribed authority shall not exceed 7 days from the date of the authorization or such longer period from the date of the authorization as the person consents to." The application on Friday, 18 April 1986, was filed in circumstances of extreme urgency. The Australian Government Solicitor was advised and did appear but, of course, in the circumstances, without the benefit of full instructions and, indeed, without knowing in any real way the details of what had occurred earlier that day in Nambour. The facts behind the application may be summarized in this way. Phang Yook Wah, the applicant, is 39 years of age, and he is the husband of Phang Chia Ngit Lan, and the father of Phang Keng Chun and Phang Ying Ying. In his affidavit he says that he arrived with his wife and two children on 24 March 1982, and until Wednesday, 16 April 1986, his son, Phang Keng Chun, aged 18, attended Nambour High School and was then in year 11, and his daughter, Phang Ying Ying, aged 17, attended Noosa High School and was in her matriculation year. In his affidavit he says that he and his family are prepared to leave Australia immediately "to return to our previous country of residence, Hong Kong", and it is their intention to apply immediately for permanent residence status for the purpose of migrating to Australia. He says that he has the immediate financial resources to pay for the airfares to return immediately to Hong Kong. Mr. Phang, in his affidavit, says that his wife and two children could fly to Hong Kong on Tuesday, 22 April 1986. In circumstances which I will later relate, the wife and two children are presently held in a detention centre in Villawood in Sydney. He says that on Wednesday evening he had had no notice or inkling that he and his family would be detained. He says that he co-operated, as did his family, and were in turn treated courteously and well by the immigration officers. He says that he and his wife are the proprietors of a restaurant business called the Ming Court Chinese Restaurant, which he has been running for four years, which has an annual turnover of some $300,000. There are currently ten people employed in the restaurant, and the restaurant has been closed since Wednesday because he has been unable to make arrangements to keep it operating. Essentially, he seeks to have some time to be able to arrange his affairs in preparation for his leaving the country, and then subsequently making an application permanently to come to Australia ina lawful way. Part of those arrangements, he says, include the paying of his suppliers, and arrangements to enable his present employees also to be paid and to continue to work. He says that on 25 February 1985 he exercised an option renewing the lease of the restaurant until 6 April 1988. It appears that he owns with his brother-in-law, and that person's brother, some two blocks of land in Nicklin Way, Kawana Waters. The certificates of title to these hlocks of land are exhibited to his affidavit. He also owns a block of land in his own right in Sunshine Beach. He says that his family assets are in the order of $400,000 and he proposes that his assets remain in Australia and will be here if he is permitted to return by the migration authorities. He 15 a member of the Noosa Heads Chamber of Commerce, and it 1s clear from the material that he 1s well regarded in the community, and there is material before me indicating that he, in addition to any local authority and state government charges, has paid federal income tax, and he claims to have paid award wages to all of his staff, and he says he has no previous criminal convictions of any kind in any country he has lived in, and he says he has no intention of absconding. The decision which is the subject of the application, is a decision made pursuant to s.38 of the Migration Act, and there is to be no submission made that it is not a decision properly reviewable under the Judicial Review Act. On Friday afternoon I did not accede to a request that the applicant be released from custody, because the basis on which I could make that order was not able properly to be placed before me and, more importantly, the practical considerations were such that it was not possible properly to consider the matter. When the matter came on after 5 o'clock on Friday I was told that Mr. Phang was already at Brisbane Airport, and it was proposed that he and his family leave on the 6.15 p.m. flight to Sydney, and there to be detained at the Villawood Detention Centre. I was told that there was no accommodation for him in any watch~-house or gaol so that he could remain in the area of South-East Queensland. I must say that I regarded that submission with some scepticism. It seemed to me unlikely that any person arrested on a criminal offence on Saturday evening in Brisbane would find that there was no room in one of Her Majesty's watch-houses or prisons. However, it was not practicable in the time available to consider the question of whether it would be possible to have him detained 1n a place that did not require his transportation to Sydney. The difficulties of obtaining instructions if that travel occurred were apparent. I therefore ordered on Friday afternoon that I would resume the hearing of the application at 9.30 this morning, and I ordered that Mr. Phang be produced to the Federal Court at 9.30 a.m. On the question that I have to consider today, the amended application seeks to review that decision, and asserts that he is aggrieved because he has been detained since the decision and pursuant to it. The grounds of the application are five. First, that the first respondent failed to take relevant considerations into account, namely, that there was no evidence suggesting that the applicant would abscond if released. Secondly, the first respondent took into account an irrelevant consideration, namely, that the applicant had over four years to organise his affairs when, in fact, the applicant was suddenly detained without such opportunity. Thirdly, as there was no evidence or material suggesting the applicant would abscond if not detained, there was no evidence or material to justify the decision. Fourthly, the failure to allow the applicant a few days to organise his business affairs was such an unreasonable exercise of power that no reasonable Magistrate could have made such a decision. Fifthly, as the application was opposed, the first respondent either erred in law or was not authorised by the Migration Act 1958 to authorise the detention of the applicant for a period exceeding seven days. The amended application claimed an order setting aside the decision authorising the detention of Mr. Phang until 28 April or, alternatively, an order for suspending the operation of the first respondent's decision. That second prayer for relief is based on s.15 of the Judicial Review Act which provides:- "(1) The making of an application to the Court under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the decision but - (a) the Court or a Judge may, by order, on such conditions (if any) as it or he thinks fit, suspend the operation of the decision; and (b) the Court or a Judge may order, on such conditions (if any) as it or he thinks fit, a stay of all or any proceedings under the decision." It further provides that:- "(2) The Court or a Judge may make an order under sub-section (1) of its or his own motion or on the application of the person who made the application under section 5." On an application for a stay, the test to be applied is to inquire whether there 1s a serious question to be tried and then to determine the matter of the balance of convenience. I accept the observations of the Full Court of the Federal Court in Faingold v. Zammit (1984) 1 F.C.R. 87 at 91, where the Court said, in respect of a decision made by Northrop J. at first instance:- "His Honour then considered what test he should apply in determining whether the relief sought should be granted. He thought that the appropriate test was that recently propounded by Gibbs, C.J. in The Australian Coarse Grain Pool Pty.Ltd. v. The Barley Marketing Board of Queensland (1983) 57 A.L.J.R. 425. His Honour there decided, notwithstanding what was said in Beecham Group Ltd. v. Bristol Laboratories Pty.Ltd. (1968) 118 C.L.R. 618, that the proper approach in considering whether an interlocutory injunction should be granted is to inquire whether there is a serious question to be tried, and then to determine the matter of the balance of convenience: see p.425." At first instance, Northrop J. had considered the application of s.15 and, on the facts there, declined to order the stay that was sought, but held that the proper test to apply is the one that I have outlined. It was suggested that, in applying that test, he fell into error. The Full Court of the Federal Court refused to interfere, and said (at pp.91-2):- "In the submission of counsel for the appellants the appropriate test was whether the court considered that reasons or circumstances existed which made 1t just that the court should make the order sought. That was the test formulated by Keely J. in Perkins v. Cuthill (1981) 52 F.L.R. 236. His Honour was there dealing with an application under s.15 of the Judicial Review Act 1977 for a stay. He said at p.238: "In my opinion s.15(1)(a) requires an applicant to satisfy the court that reasons or circumstances exist which make it just that the court should make the order sought but it 1s not necessary for the applicant to show that those reasons or circumstances are in any sense 'special' or 'exceptional'. of course the discretion must be exercised judicially and not arbitrarily." In our opinion it will be difficult for an applicant to show that reasons or circumstances exist which make it just that the court should make the order sought unless it is demonstrated that the applicant has a point of substance to argue which, if successful, will result in judgment in his favour. In this respect it does not appear to us that the two tests are, in practical terms, very different." On the question of the approprite manner in which to approach the question for decision, reference also may be made to the observations by Morling J. in Blunk v. The Minister for Immigration and Ethnic Affairs (unreported, 3 February 1983). 10. Having referred to authority in respect of the applications for interlocutory relief by deportees who are held in custody, his Honour continued: "In my opinion it is always a most compelling consideration that an applicant is in gaol and I think the court should be quick to grant interlocutory relief in such a case unless there are strong grounds for him being kept in custody. Nevertheless, it does seem to me that it is necessary in proceedings of this kind to have some regard to the applicant's prospects of success in the proceedings." Later in his judgment, he referred to the obviously serious consideration that the applicant 15 a prohibited immigrant with no entitlement to stay or work in this country. One further matter 1s an observation by Keely J. in Perkins v. Cuthill, to which reference has earlier been made, where his Honour concluded that the length of time which might elapse before the court decided the application might assist the applicant if at were likely to he long but that, in the circumstances of that case, that consideration did not apply. The situation here is that, unless the matter is heard, the force of the decision will be spent. Affidavits have been filed by Mr. Henry, solicitor from the Australian Government Solicitor, who attended at the Magistrate's Court in Nambour on instructions from the Department of Immigration and Ethnic Affairs, as to what occurred before the Magistrate, and also by Mr. Ostwald, the solicitor who appeared for Mr. Phang, before the Magistrate. I am conscious that the ii. opportunity to provide reasons has not been given to My. Murrell, nor can it be said that complete confidence can be reposed in the accounts of what occurred before him on the material that is presently before me. Nonetheless, there appears sufficient material to allow me to conclude that there are, at least, serious questions to be tried as to whether the decision by Mr. Murrell ought properly be reviewed under the grounds set out in s.5 of the Judicial Review Act. Mr. Henry in his affidavit at paragraph 11 deposes: "TI said to Mr. Murrell that the fact that the applicant had acquired assets and was the owner of a successful business was of his own doing and was not in my submission relevant to the exercise of his discretion at this stage." He also deposes in paragraph 14: "After some time had elapsed during which time Mr. Murrell appeared to read the material placed before him, I heard Mr. Murrell say words to the effect that, as the majority of the persons before him, including the applicant, had been in Australia since 1982 he considered that they had had ample opportunity to get their affairs in order and therefore he considered that Mr. Ostwald's submissions concerning the suddenness of these events were without substance." Implicit in that is the real possibility that the personal circumstances of the present applicant, Mr. Yook Wah Phang, were subsumed into a global consideration of all the persons before the Magistrate. There 1s a question as to whether, in fact, they ought to be heard together, and the exhibit "A" to Mr. Henry's 12. affidavit seems to suggest that the eight persons covered by the statement of facts in support of the application(s) were such as not to permit proper consideration of the individual circumstances applying to each one. It is unnecessary for me to go further as to other grounds on which it may be said that the Magistrate's decision was reviewable. Suffice to say, in my view, there clearly 1s a serious question to be tried, and it 1s necessary then to turn to the balance of convenience.. It 1s not suggested in any realistic way that Mr. Phang will abscond. Having regard to the contents of his affidavit, on which he was not sought to be cross-examined, in my view, there can be no argument but that a stay of the operation of Mr. Murrell's order for a short period would in no way prejudice the authorities and may, in fact, go a long way to resolving not only his particular position but that of his immediate family. In the circumstances, I propose to make an order pursuant to s.15(1)(a) suspending the operation of the order made by Mr. Murrell on Friday last, 18 April until Thursday at 2 p.m. when I will consider the position and give any further directions to the final hearing of the application. I order, subject to the following conditions, that the decision made by Mr. Murrell authorising the detention of Phang Yook Wah until 28 April 1986 be suspended until 2 p.m. on Thursday, 24 April 1986. 13. I direct that the applicant attend in person at the Federal Court of Australia, 8th Level, M.L.C. Court, at 2 p.m. on Thursday, 24 April 1986. I order that the suspension of the operation of the decision of Mr. Murrell be on the following two conditions: firstly, that he report on Tuesday and Wednesday, 22 and 23 April, at 9.30 a.m. to the officer in charge of the Noosa Heads Police Station, and further that he reside at Unit 1, The Islander, Noosa Parade, Noosa Sound, Noosa Heads, until Thursday next. I will reserve the question of costs. lecrisfy thet this and the VQ preceding paces are a wue cepy of the reasons for qoda.nent fycreiy of His Honour Mi Justes Spender RYT bee AL Assoétate Dated V\ Aas Mek