FEDERAL COURT OF AUSTRALIA Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 395 Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B) Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 196 Minister for Immigration & Multicultural & Indigenous Affairs v VFAD [2002] FCAFC 390 Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133 NGUYEN VAN SON v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W342 of 2002 RD NICHOLSON J 3 APRIL 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W342 OF 2002 BETWEEN: NGUYEN VAN SON APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 3 APRIL 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Subject to the Applicant undertaking to comply and thereafter complying with the terms of such undertaking as may be required by the Court, the Respondent whether by his servants, agents or howsoever otherwise, be restrained from continuing to detain the Applicant in immigration detention under the Migration Act pending the hearing of this Application or until further order. 2. The Respondent be restrained from removing the Applicant from Australia pending the hearing of this Appeal or until further order. 3. Orders to be held in the Court until the Registry is advised in writing by or behalf of the AGS of compliance with condition 5 of the Applicant's undertaking dated 2 April 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W342 OF 2002 BETWEEN: NGUYEN VAN SON APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 3 APRIL 2003 PLACE: PERTH REASONS FOR JUDGMENT 1 A notice of motion is brought on behalf of the applicant seeking orders that, firstly, subject to the applicant undertaking to comply and continue complying with the terms of the undertaking as required by the Court, the respondent by servants, agents or otherwise, be restrained from continuing to detain the applicant in immigration detention under the Migration Act 1958 (Cth) ('the Act') pending the hearing of this application or until further order. Secondly, an order is sought that the respondent be restrained from removing the applicant from Australia pending the hearing of this appeal or until further order. 2 The application in question is that for seeking prerogative and injunctive relief pursuant to s 39B of the Judiciary Act 1903 (Cth). The relevant ground relied upon is that of jurisdictional error and materially jurisdictional error by the respondent said to be in the way in which he reached his decision in relation to the applicant and, in particular, that he failed to take into account the best interests of the applicant's two Australian-born children notwithstanding the requirements in particular of art 3.1 of the Convention on the rights of the child. 3 The application is supported by an affidavit of the applicant filed on 2 April 2003. He was born in Vietnam on 24 January 1971 and is a citizen of Vietnam. He married in 1992 and came to Australia in 1994. Some time after 1995 in circumstances of matrimonial separation he became addicted to heroin. However, in 1998 his wife returned to Australia and they renewed their relationship. Nevertheless in 1999 he was charged with being in possession of heroin with intent to sell or supply. He pleaded guilty to the charge of possession and was convicted. He was on bail from November 1999 to May 2001. His evidence is he complied with the terms of his bail. His conviction of possession occurred in April 2001 and he was sentenced to three years' imprisonment. He served 12 months from May 2001 to May 2002. Whilst in prison his evidence is that he used marijuana on two occasions and on one of those occasions, in about December 2001, he was caught and he served four days in his cell. 4 Following his release on parole he was reunited with his wife. He claims to have formed an intent to remain completely drug free. He was required to undergo random urine testing and this occurred on two occasions, confirming he was drug free. He obtained part time work as a panel beater, mechanic and he continued to undertake that work until detained in connection with the application of the Act in November 2002. He has, on his evidence, complied with the conditions of his parole. 5 His application is also supported by two affidavits of his wife. Her evidence corroborates such portions of his evidence as relate to their marriage and life together. She states that they have two children who were both born in Australia; namely, William, born on 27 August 1999, and Alex born on 22 October 2001. 6 In her evidence she also states that in January 2001 she was involved in a motor vehicle accident from which she suffers ongoing neck pain, back pain and frequent headaches. 7 Importantly, the applicant's wife states in her affidavit that if her husband was removed from Australia she has decided that the children and she would not return to Vietnam with him. She says this is due to many reasons but they include concerns that the children would not receive the same standards of health care and education. That is particularly relevant in relation to her child William who is asthmatic and who has experienced ill health on a return to Vietnam on one occasion. She says that that decision, 'will mean the end of our marriage of 10 years', which neither she nor her husband want and it will also mean the separation of the children from their father. She refers to one of the sons being particularly strongly bonded with her husband. She is therefore anxious for her husband to be released from detention so he can return to provide the care of children and herself. 8 That latter statement is to be understood further in the context of her second affidavit in which she states that she has become pregnant following a recent visit to her husband. There is medical evidence corroborative of that element of the affidavit and the medical evidence states that the third child will be due on 10 November 2003. 9 Additionally the applicant's wife states that she has arranged with her brother‑in‑law to lend $5000 for a bond in the event that that is a condition of the applicant's release. 10 Returning to the applicant's affidavit, he refers to her decision not to return to Vietnam in the event of him being deported. He refers to his wish to keep the family together and to his wife's health problems arising from her motor vehicle accident. He asserts that his removal from Australia would mean the permanent separation of his children from himself and from the care, guidance, love and support that he would otherwise provide to them. He undertakes to comply with any conditions that the Court may impose on his release. 11 Annexed to his affidavit is an undertaking in which he makes the following undertakings: firstly, that he would reside with his wife and children; secondly, that he would telephone a nominated person or such other officers of the Department of Immigration and Multicultural and Indigenous Affairs as may be required on certain days and that he would, thirdly, comply with the conditions of his parole; fourthly, that he would surrender his travel document and fifthly, that his wife would deposit a bond in the sum of $5000 to be forfeited in the event of breach of any of the above conditions. 12 It is common ground that the relief which is sought is in the nature of injunctive relief. It is common ground also that the Court has power, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), to issue an interlocutory mandatory injunction restraining the respondent from continuing to detain the applicant, notwithstanding the provisions of s 196 of the Act. In particular in that respect the submission for the applicant that that was the case relied on Minister for Immigration & Multicultural & Indigenous Affairs v VFAD [2002] FCAFC 390 at par 104-115, 159-162. That submission is not challenged. 13 An application for injunctive relief requires the court in accordance with very well-established law to apply two tests. The first is to determine whether there is a serious question to be tried and the second is to determine where the balance of convenience falls. Difficult as some decisions may be, it is those tests which the Court must apply in the particular circumstances of a matter. 14 Also before the Court as part of the evidence in the applicant's case is the affidavit of Peter John Corbould filed on 4 February 2003 in which appears the decision record which was before the respondent when he made his decision in which he stated he had considered all relevant matters and did so on 6 November 2002. 15 The case for jurisdictional error which is said to establish the serious question to be tried is substantially based on par [40] in the record of decision and the consideration of that paragraph in its context. That paragraph reads: 'It is open to you to find from the information given that the cancellation of Mr Nguyen's visa and his removal from Australia would have a detrimental affect on his children.' 16 It is submitted for the applicant that this was a different and more limited issue to a determination as to what was in the best interests of the children as required by the International Convention to which I have previously referred and whether, if their best interests are determined to be that the applicant remain in Australia, whether that is countervailed by the Australian community's interest in removing the applicant from Australia. It is submitted therefore that the decision record should be understood as not attempting to ascertain what are the best interests of the applicant's children. 17 In that respect reliance is placed on the decision of the Full Court in Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133 where the Full Court, Branson, North and Stone JJ, addressed a similar issue in the context of the obligation placed on the Administrative Appeals Tribunal by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) to include in its reasons for decision findings on material questions of fact and a reference to the evidence or other material on which that is based. 18 For the respondent, attention is directed to two matters in particular, firstly the context of the prior paragraphs that precede par [40] in which, as the applicant's case put it, there was a failure to mention the fact that the children were citizens of Australia. That, it is said for the respondent, is not a matter of moment. Secondly, in those paragraphs the respondent was not told explicitly that if the applicant was deported his wife and children would remain in Australia. Thirdly, the case for the respondent contests that an understanding of par [40] in its context does fail to address the question of what is the best interests of the children, given that the reference in it to 'detrimental effect on his children' is something which on the face of it cuts away at the best interests of the children. 19 It should be mentioned that the paragraphs in question in the record of decision appear under the heading of 'The best interests of the children' so that pars [27]-[40] were before the minister in that context. 20 Having considered these matters I am of the view that there is an arguable case that the record of decision did not in whole or in part bring before the minister matters germane to him making a decision as to the best interests of the children. 21 The well recited rubric of 'serious question to be tried' is not consistent with authorities which really require, as it was put to me, a prima facie argument or an arguable case. It clearly is open to argument as to what the record said, what effect it had and it meant for the minister's decision. I find, therefore, that there is established a serious question to be tried. 22 However, I accept the submission for the respondent that the serious question is not a strong one and I accept the related submission that follows from that. Therefore, the finding that there is a serious question to be tried is not something that I can weigh further in the balance of convenience. 23 Turning to the balance of convenience, I turn to the matters in the applicant's submission. It is clear that there are matters that weigh strongly in the personal favour of the applicant, namely that if he were released, he would support his wife who is now pregnant and his two young children and could provide care and support to them, and I accept that his absence from them during the course of litigation and possible appeals has a potential to cause injury to them. Were he ultimately to be unsuccessful in his case of course, that would be an injury which would be suffered in any event but on this particular point in time, clearly the balance of convenience favours the applicant on those matters. 24 I consider he is also favoured by the fact that in the event that he succeeds in making good the serious question to be tried then it is arguable that his current detention is not lawful. That particular view was contested by the respondent and I do not seek to rule on it now in the course of an interlocutory application. It seems to me it is sufficient that it is certainly well arguable that in the event he is to succeed, his current detention would not be lawful. 25 Very importantly in the context of the history of this applicant I have to weigh the matters related to the fact that he is and has been, and that is what has caused him to be in detention, a sentenced person and a person who has been sentenced for a drug offence. He asserts that there is a lack of any real risk he would abscond, particularly given the fact he recognises his responsibility to his family and that were he to abscond, he would defeat the sole basis on which he seeks to return to them. There is certainly no evidence that he would be a real risk of absconding. Indeed to the contrary there is evidence that he has complied with his conditions of parole. 26 As to his previous drug habit, there is the evidence that he has in recent times passed urinalysis tests while on parole. The respondent drew attention to the report of the community corrections officer dated 23 September 2002 which stated that he was still at a high risk of re-offending if he relapses into substance abuse, and that a close supervision regime for him still applied. I accept that that is dependent on relapse into substance abuse and there is the positive evidence that he is drug free. There is also the element of the undertaking, which I consider to be important, that he would comply with the conditions of his parole and report by telephone. In particular the compliance with the conditions of the parole would be relevant to any breach of his resolve in relation to the issue of drugs. 27 There are two public factors that are listed in the applicant's list of circumstances. These were contested as being relevant for the respondent, at least in one respect, and I do not take those into account. They, I think, believe that the balance of convenience must be weighed in relation to the parties. 28 It is also in the list of matters relied on for the applicant that the applicant has previously complied with bail and parole conditions. 29 The matter is not clear cut. It is difficult. It is difficult because of the conviction and of the drug offence of the applicant. Nevertheless I believe that properly considered there is on balance a balance of convenience which favours the applicant. That would not be the case of course were the applicant to breach his parole conditions or the requirement in them that he is to remain drug free. 30 I have therefore concluded that applying the tests which the Court is required to apply this is a case where on the present evidence before the court there is a serious question to be tried and the balance of convenience which marginally favours the applicant. For that reason I would be prepared to make the orders in terms of the first order of restraint on detention and the second order in terms of restraint from removal from Australia from which I note there was no expressed opposition. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 5 May 2003 Counsel for the Applicant: Mr HNH Christie Solicitor for the Applicant: Christie & Strbac Counsel for the Respondent: Mr AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 April 2003 Date of Judgment: 3 April 2003