Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 270

FEDERAL COURT OF AUSTRALIA

Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 270

MIGRATION – judicial review – cancellation of visa – character test – claim for interlocutory relief – Serbia national – resident in Australia since 1994 – allegation that convicted of murder in Serbia at age 15 in 1982 – allegation raised in 1996 – no cancellation action till 2002 – conflicting evidence – contradictory advice from Serbian authorities – serious case to be tried – no stated reasons for preferring one set of documents over another – whether legal requirements of s 501 met – balance of convenience – favouring applicant – no criminal record in Australia – interlocutory order for release from detention.

Migration Act 1958 (Cth) s 501(6), s 501(2)

Judiciary Act 1903 (Cth) s 39B

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Federal Court of Australia Act 1976 (Cth) s 23

Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 cited

Plaintiff S157 v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 195 ALR 24 cited

RIFAT NEZOVIC AND ANOTHER v THE MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

W47 OF 2003

FRENCH J

25 MARCH 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W47 OF 2003

BETWEEN: RIFAT NEZOVIC

FIRST APPLICANT

SEIDA NEZOVIC

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 25 MARCH 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The respondent is hereby restrained from continuing to detain the first applicant until the day of the hearing of the application, 29 April 2003, such restraint to be subject to the observance by the first applicant of the following conditions: (a) that upon his release from detention he will reside at 92 Forrest Road, Hamilton Hill; (b) that in the event of any proposed change of address and contact details he will give 48 hours prior notice in writing to his solicitors, Bayly and O'Brien, 3rd Floor, 524 Hay Street, Perth, Western Australia 6000 and to Ms Theresa Ling at the Australian Government Solicitor, 2 The Esplanade, Perth, Western Australia of his intended address and contact details; (c) he will report in person to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) at 411 Wellington Street, Perth two days each week between the hours of 9 am and 4 pm excluding only weekends and public holidays and in addition thereto by telephone each day for the balance of the week to James Petcov telephone number 9415-9164, or such other named officer or officers at the Perth office of DIMIA as may be designated in writing from time to time by the respondent to his solicitor during ordinary working hours excluding only weekends and public holidays; (d) he will surrender himself into immigration detention on the date set down for the hearing of the application, that is, 29 April 2003; (e) the sum of $5000 be paid by the first applicant to the Australian Government Solicitor to be forfeited to the Minister upon breach of any of the preceding conditions if that breach continues for two days and upon the respondent providing the first applicant with written notice of the breach by delivery to his last-known address. 2. There is liberty to any party to apply to revoke the order or to vary its terms. 3. Costs today reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.