Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567

FEDERAL COURT OF AUSTRALIA

Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567 DEPORTATION – heroin addict–dealer in his twenties came as a child refugee to Australia – AAT led by Minister into misapplication of superseded policy – new binding direction for decision-makers – whether futile to remit matter to AAT – interpretation of direction – necessity for actual weighing of conflicting factors. Migration Act (Cth) 1958, ss 200, 201

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, considered Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 492, considered Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, applied

MIHN DUC HONG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 42 OF 1999 MADGWICK J 10 NOVEMBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 42 OF 1999

BETWEEN: MIHN DUC HONG

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MADGWICK J

DATE OF ORDER: 10 NOVEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is allowed. 2. The matter is to be remitted to the Administrative Appeals Tribunal, differently constituted, for reconsideration according to law. 3. The respondent is to pay the applicant's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 42 OF 1999

BETWEEN: MIHN DUC HONG

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MADGWICK J

DATE: 10 NOVEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision by the Administrative Appeals Tribunal ("the Tribunal"), made on 14 January 1999, that affirmed the decision of a delegate of the respondent Minister, made on 16 December 1997, to deport Mr Mihn Duc Hong, the applicant, to Vietnam. A child refugee 2 The applicant's father was an ethnic Chinese, small trader in Saigon. The applicant grew up in the ethnic Chinese community there. The family were viewed as "capitalists". Chinese people were often viewed suspiciously by Vietnamese. In 1985 the applicant's sister, a single woman then aged twenty-six, fled Vietnam, taking with her the applicant, then a boy of ten and his two brothers, as refugees. They spent thirteen months in an Indonesian refugee camp before arriving in Australia on 25 March 1986. The applicant seems to have been twelve years of age when he came here. His parents stayed in Vietnam and have since died.