Khan v Minister for Immigration & Multicultural Affairs [1999] FCA 1790

FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration & Multicultural Affairs [1999] FCA 1790

MOREIRA KHAN AND HUBERTUS DELLU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1028 OF 1999 HILL J SYDNEY 6 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1028 OF 1999

BETWEEN: MOREIRA KHAN

FIRST APPLICANT

HUBERTUS DELLU

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 6 DECEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1028 OF 1999

BETWEEN: MOREIRA KHAN

FIRST APPLICANT

HUBERTUS DELLU

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE: 6 DECEMBER 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 The applicants, Moriera Khan (Mr Khan) and Hubertus Dellu (Mr Dellu) apply to the Court for judicial review of a decision of the respondent Minister for Immigration and Multicultural Affairs ("the Minister") said to have been on or about 3 September 1999 to exercise the power to forfeit a security in the sum of $5000 given to the Minister pursuant to the provisions of s 269 of the Migration Act 1958 ("the Act"). 2 There are two grounds stated in the application. The first is that the decision-maker failed to take into account a relevant consideration, namely, the existence of a migration series instruction MSI-219 issued on 21 April 1999. The second is an alleged failure on the part of the Minister to give to the applicants or either of them an opportunity to be heard in respect of the proposed forfeiture of the surety. 3 The facts before the Minister are set out in a facsimile dated 28 September 1999 although that facsimile extends beyond the period in which the decision was made. 4 It appears that Mr Dellu was as at 23 July 1999 an unlawful non-citizen. He made an application on 26 July 1999 for a bridging visa. At the time of making that application he had an air ticket for his family and himself to depart Australia on 13 August 1999. 5 Mr Dellu's application for a bridging visa was in due course granted. It was granted subject to certain conditions set out in a letter dated 26 July 1999. Among those conditions were that Mr Dellu depart Australia before 14 August 1999, that he reside at a nominated address and notify changes of address, reporting as directed to the Rockdale Office of the Minister. The letter required also, that a security in the amount of $5000 be provided by way of guarantee of these conditions. 6 In due course Mr Khan agreed to guarantee performance of the condition and give security in the amount of $5000. The security provided was in the form of a bank guarantee from the Commonwealth Bank dated 27 July 1999 under which the bank undertook on demand to pay the "Department of Social Security" the sum of $5000. A letter from Mr Dellu's solicitors dated 26 July 1999, written following a conference with Mr Dellu's wife in connection with the granting of the bridging visa he sought, noted that it was a condition that Mr Dellu not engage in employment. 7 It is common ground that Mr Dellu did not depart Australia on 14 August. On 11 August Mr Dellu's solicitor wrote to the Minister requesting that the Minister intervene under s 417 of the Act. It was the second such request. He also sent a form 1005 requesting a change in the condition of the bridging visa, namely, that Mr Dellu not be required to depart Australia by 14 August 1999 because he had lodged a s 417 request. The letter was taken as a fresh application for a bridging visa. 8 It seems that the person who made the decision decided on 23 August to refuse the application for the further bridging visa although failed to notify Mr Dellu until 30 August. The request under s 417 failed on 24 August, which Mr Dellu was also notified of on 30 August 1999. Thereafter, it seems that Mr Dellu and his family were detained on 2 September 1999. On the next day, the bank guarantee was called up. The facts to which I have referred of 28 September 1999 suggest that not only had Mr Dellu failed to depart Australia by 14 August 1999; he had in addition breached the condition of his visa, if there was such a condition, that he not work. 9 It is said that on 2 September 1999, Mr Dellu "freely admitted that he was preparing to go to work and that he had continued to work since his previous release from the detention centre. He claimed to be unaware of his 'no work' condition on the BVE".