Lu Ru Wei & Anor v Immigration & Multicultural Affairs [1996] FCA 576

LIMITED DISTRIBUTION IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WAG 80 of 1996 GENERAL DIVISION ) BETWEEN : LU RU WEI First Applicant ZHOU XIAO FANG Second Applicant AND: THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent CORAM: CARR J. PLACE: PERTH DATE: 21 JUNE 1996 EX TEMPORE REASONS FOR JUDGMENT Introduction In this matter the applicants, by notice of motion, seek urgent interlocutory relief to restrain the respondent from causing or permitting their removal (and the removal of any of their dependants detained with them) from Australia. The first applicant seeks this relief in respect of himself, his wife and three children. The second applicant does not have any dependants detained with him. Relief is sought urgently because the respondent proposes to remove the applicants (and Mr and Mrs Lu's three children) from Australia to China on a flight departing from Port Hedland at eleven o'clock this evening.

Factual Background The applicants were both born in Vietnam and are of ethnic Chinese origin. They were expelled from Vietnam into China in late 1978 or early 1979. Mr and Mrs Lu's three children were born in China in 1987, 1989 and 1991. The Lu family and Mr Zhou (the second applicant) left China on 22 August 1994 on a boat subsequently codenamed "Mudlark". Mr Lu was the captain of the "Mudlark". The boat apparently laid over for some months in the Philippines and arrived in Australia on 9 March 1995. On 13 March 1995 Mr and Mrs Lu and Mr Zhou were interviewed by the respondent's officers. Mr and Mrs Lu were further interviewed on 14 March 1995. None of them said or did anything in the course of those interviews to indicate that they were refugees or were seeking asylum in Australia. On 12 July 1995 the applicants were held at the Immigration Reception and Processing Centre at the RAAF base at Curtin. On that date they were read a notice (with the assistance of an interpreter) which reads as follows: "Notice This notice explains the rules which Australia will apply to most people who have arrived without authority in Australia in recent months. From November 1994 about 800 people from China have arrived by boat in Australia. Most of these arrivals are refugees from Vietnam and their families who have been settled in China. The Australian Government and the United Nations High Commissioner for Refugees believe that such people have received the protection of China since they began arriving there from Vietnam in the late 1970's. Australia and China have entered into a Memorandum of Understanding whereby any such people returned to China will continue to receive China's protection.