Foo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1277

FEDERAL COURT OF AUSTRALIA

Foo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1277 PENG BOON FOO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N933 OF 2003 HILL J 6 AUGUST 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N933 OF 2003

BETWEEN: PENG BOON FOO

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 6 AUGUST 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Court notes the undertaking given by counsel for the applicant as to damages in accordance with the usual form. 2. The respondent be restrained until further order from removing the applicant from Australia. 3. The order be entered forthwith. 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 N933 OF 2003

BETWEEN: PENG BOON FOO

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE: 6 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, a national of Singapore, applied to the Court for judicial review of a decision made by an officer of the Department of Immigration and Multicultural and Indigenous Affairs ('the Department') refusing to grant to the applicant a bridging visa E subclass 050. In the application the applicant seeks alternatively a declaration that the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') has no power to remove the applicant from Australia. The applicant claims interlocutory relief restraining the Minister from taking any steps to remove him from Australia until further order, and an order that the applicant be released from detention. It is the claim for interlocutory relief which is presently before me. 2 The applicant is a rather high profile person who has been the subject of much media interest. I would point out that I put from my mind altogether anything I may have read of the applicant or heard of him in other media and the case is decided purely on the material which is presently before me. 3 As is evident from the orders sought the applicant is presently in detention and has been in detention since 31 July 2003. On 5 August 2003 a delegate of the Minister, purporting to act in pursuance of the provisions of the Migration Act 1958 (Cth), notified the applicant that arrangements had been made for his removal to Singapore on a flight departing Sydney today. Clearly the short period of notice he was given has meant that neither the legal advisers of the applicant nor those of the respondent have had the time they would wish to have to prepare the present application. 4 It is common ground between the parties that as the present proceedings before me are interlocutory the applicant must show to succeed in obtaining injunctive relief that there is an arguable issue to be tried and that the balance of convenience is in favour of the grant of that relief. It is clear from the case law that there is an interrelationship between those two elements so that, for example, the greater the balance of convenience may favour the relief the less difficult it will often be for an applicant to show an arguable issue. It is convenient to deal separately with the question whether there is an arguable issue in respect of the power of the Minister to remove the applicant and the question whether there is an arguable issue in respect of the application the applicant has made for judicial review of the decision to refuse the grant to him of the bridging visa.