The Hung Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 449

FEDERAL COURT OF AUSTRALIA The Hung Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 449

MIGRATION –application seeking release from detention pending deportation – motion seeking dismissal of application – recent arrangements made for applicant's deportation. Migration Act 1958 (Cth) ss 148, 200 Federal Court Rules O 20 r 2, O 80 Koon Wing Lau v Calwell (1949) 80 CLR 533 cited Park Oh Ho v Minister for Immigration & Multicultural & Indigenous Affairs (1989) 167 CLR 637 cited Chu Kheng Lim v Minister for Immigration, Local Government, and Ethnic Affairs (1992) 176 CLR 1 cited Tam v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 373 cited THE HUNG NGU v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W193 OF 2003 LEE J 16 MARCH 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W193 OF 2003

BETWEEN: THE HUNG NGU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 16 MARCH 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. There be no order as to costs.

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 W193 OF 2003

BETWEEN: THE HUNG NGU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE: 16 MARCH 2004

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is a motion by the respondent ("the Minister") on 11 March 2004 that the application filed by the applicant on 12 September 2003 seeking release from detention effected under the Migration Act 1958 (Cth) ("the Act") be dismissed. On the face of the initiating process filed by the applicant, ground for dismissal of the application pursuant to O 20 r 2 Federal Court Rules, namely, that it fails to disclose a reasonable cause of action, would appear to be present. The application, of course, was filed by the applicant without the assistance of legal advice and the applicant is not conversant with the processes required to activate the jurisdiction of this Court. 2 Pursuant to O 80 of the Federal Courts Rules, the Court appointed pro bono counsel to represent the applicant. I am satisfied by the submissions of counsel so appointed that if leave were granted to amend the application, amendments could be made that would describe a matter within the Court's jurisdiction. However, events have moved on and the thrust of the Minister's submissions is that given that deportation of the applicant is to be effected within days, the applicant's proceeding should be struck out as an application that is bound to fail. 3 The relevant facts may be shortly stated as follows. 4 The applicant was born on 11 January 1974 in Vietnam. He emigrated to Australia, with his mother, on 10 June 1992. He was granted permanent resident status on 21 July 1992. 5 On 25 October 1996 the applicant was convicted of two counts of unlawful wounding with intent to maim, disfigure or disable and one count of unlawfully doing grievous bodily harm. He was sentenced to a total of eight years imprisonment but was made eligible for parole from August 1998. 6 On 21 June 1998, pursuant to s 200 of the Act, a delegate of the Minister ordered that the applicant be deported from Australia. The applicant sought review of that decision in the Administrative Appeals Tribunal ("the Tribunal"). On 11 August 1999 the Tribunal affirmed the delegate's decision. An "appeal" to this Court to review the Tribunal's decision was filed on 2 November 2001. After several hearings at first instance and on appeal, the application to review the decision of the Tribunal came to an unsuccessful conclusion in this Court on 10 February 2004. Meanwhile, as noted above, on 12 September 2003, the applicant had commenced another proceeding in this Court seeking release from detention. 7 The applicant has been in custody under the Act awaiting deportation for approximately five and a half years, partly as a result of the reluctance of Vietnamese authorities to receive persons whom Australia sought to deport, being persons who had left Vietnam to emigrate to Australia. At some point in that period of detention an issue may have arisen as to whether the applicant had been detained for a greater period than was reasonable to effect that deportation, or had been detained for a purpose other than deportation, in which event entitlement to some form of relief from the Court may have been arguable. (See: Koon Wing Lau v Calwell (1949) 80 CLR 533; Park Oh Ho v Minister for Immigration & Multicultural & Indigenous Affairs (1989) 167 CLR 637; Chu Kheng Lim v Minister for Immigration, Local Government, and Ethnic Affairs (1992) 176 CLR 1). 8 In support of the motion to dismiss the application the Minister relies upon material that shows that the applicant will be accepted by Vietnamese authorities if returned to Vietnam, and that arrangements have been made for the applicant to be removed from Australia on 17 March 2004. 9 In the circumstances it may have been a better course for this motion to have been filed and brought on for hearing before specific arrangements were made for the removal of the applicant from the Court's jurisdiction. I accept, however, that there has been no intent to frustrate the applicant's ability to have the Court deal with his application. The Minister has taken the opportunity to effect a longstanding and a delayed purpose of deportation. The fact remains, however, that the Court has had to allocate hearing time and deal with the matter urgently having regard to arrangements that are in place that rely upon a degree of international comity. 10 In support of his opposition to the motion the applicant has put further material before the Court relating to an incident in the Perth Immigration Detention Centre on 30 December 2002 in respect of which charges were laid against the applicant by State authorities. The trial of those charges upon indictment is now imminent. The defence of the applicant appears to be that he was responding to excessive force used by the officers of the Commonwealth. The State has not made a request under s 148 of the Act that the applicant remain in Australia "for the purposes of administration of criminal justice". If, in a given case, it were suggested that deportation was being used for an ulterior purpose, the Court may have regard to that consideration in determining whether to exercise any discretion it may have to make an order such as that sought in the instant matter. (See: Park Oh Ho (supra)). That consideration does not arise in this case. 11 In all the circumstances it is plain that the application for an order that the applicant be released from detention cannot succeed. (See: Tam v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 373). There is a valid deportation order pursuant to which the applicant is now held in detention pending imminent deportation. No ground for ordering his release could be established. No useful purpose would be served by declining to grant the order sought in the motion. It will be ordered that the application be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.