Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420

FEDERAL COURT OF AUSTRALIA

Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420

MIGRATION – cancellation of visa under s 501 of Migration Act 1958 (Cth) – want of good character – New Zealand citizen resident in Australia since 1979 – extensive criminal record – cancellation of visa for driving while motor driver's licence suspended – application for constitutional writs and other relief – applicant contends he is neither immigrant nor alien – beyond constitutional reach of s 501 and detention provision s 196 – motion for interlocutory release of applicant pending hearing and determination of application – test for grant of interlocutory relief – compelling grounds required where challenge to validity of statute or assertion of constitutional limits qualifying plain language of statute – applicability of general test – requirement of compelling grounds to overcome balance of convenience in favour of observance of plain words of statute – non-constitutional grounds arguable but not strong – countervailing considerations – risk of wrongful deprivation of liberty – considerations personal for applicant – interlocutory relief ordered Migration Act 1958 (Cth)s 501

Minister for Immigration, Multicultural and Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 cited Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 cited NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 401 cited Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1422 cited Ex parte Cowgill Re Minister for Immigration & Multicultural & Indigenous Affairs P100/2002 cited Morgentaler v Ackroyd (1983) 42 OR (2d) 659 cited MARK LAWRENCE PRESTON v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W62 OF 2003 FRENCH J 7 MAY 2003 PERTH