Luu v Minister for Immigration and Multicultural Affairs [2001] FCA 1136

FEDERAL COURT OF AUSTRALIA

Luu v Minister for Immigration and Multicultural Affairs

[2001] FCA 1136

MIGRATION LAW - Deportation – Criminal conviction – Detention pending deportation -Review of Minister's decision to refuse order of release under s 253(9) of the Migration Act 1958 (Cth) – Review of Minister's decision to refuse to revoke deportation order under s 206(1) of the Migration Act 1958 (Cth) – Whether detention was indeterminate ADMINISTRATIVE LAW – Review under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – Whether the decisions failed to accord applicant procedural fairness – Whether the decisions failed to take relevant considerations into account – Whether decisions were unreasonable – Whether decisions were invalid because applicant's detention was unauthorised – Whether decisions were ultra vires because the detention was punitive INTERNATIONAL LAW – Whether the applicant had a legitimate expectation that the Minister would act in accordance with the International Covenant of Civil and Political Rights 1966 – Whether the Minister breached the International Covenant of Civil and Political Rights 1966 WORDS AND PHRASES – "indeterminate detention", "risk of flight" Administrative Decisions (Judicial Review) Act 1977 (Cth) Migration Act 1958 (Cth) ss 206, 253(9) Human Rights and Equal Opportunity Act 1986 (Cth) Federal Court of Australia Act 1976 (Cth) International Covenant on Civil and Political Rights 1966

Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304 referred to Kioa v West (1985) 159 CLR 550 applied Nguyen v Minister for Immigration and Multicultural Affairs [2001] FCA 887 followed Pilbara Aboriginal Land Counsel Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Island Affairs (2000) 103 FCR 539 followed Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 cited Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339 cited Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 applied Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 followed Van Alphen v The Netherlands UNHRC305/88 referred to Vo v Minister Immigration and Multicultural Affairs (2000) 98 FCR 371 referred to Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 504 cited Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389 cited Cabal v Secretary, Department of Justice (2000) 177 ALR 306 cited Cabal v Secretary, Department of Justice [2000] FCA 1227 applied Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied Perez v Minister for Immigration (1999) 94 FCR 287 referred to Luu v Renevier (1989) 91 ALR 39 referred to Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 applied Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 referred to Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1426 followed Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 referred to Aronson & Dyer Judicial Review of Administrative Action 2nd ed. 2000 cited MINH DUNG LUU v THE HONOURABLE PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS