Verlicia v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1446

FEDERAL COURT OF AUSTRALIA

Verlicia v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1446

MIGRATION – interim injunction granted to restrain forced return of teenage female to country of origin – compelling discretionary factors involved

Migration Act 1958 (Cth) s 189 VERLICIA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1612 OF 2004 CONTI J 5 NOVEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1612 OF 2004

BETWEEN: VERLICIA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 5 NOVEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The respondent be restrained from causing the applicant to be deported from Australia until 4.00 pm on Friday 12 November 2004, or until such later time as may be further ordered. 2. The costs of the application for interlocutory relief be reserved. 3. Liberty be granted to either party to apply on one day's prior notice in writing to the other. 4. The proceedings be stood over to the list of the Court's duty judge at 10.15 am on Friday 12 November 2004. 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 NSD 1612 OF 2004

BETWEEN: VERLICIA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 5 NOVEMBER 2004

PLACE: SYDNEY

REASONS FOR INTERLOCUTORY ORDER 1 The applicant is an Indonesian national, born on 9 June 1986, and thus 18 years of age. She was subject to an order for removal from Australia today, 5 November 2004, by a flight due to depart Sydney Airport at 4.15pm, that being the same day as the present proceedings were commenced informally. 2 The applicant was recently placed in immigration detention, pending her removal from Australia. That took place in the unfortunate circumstances of the applicant being mid-way through her Higher School Certificate examinations at Kogarah High School, and whilst she was residing with her uncle at his home in the Kogarah district, which he apparently owns. 3 The applicant's history in Australia may be summarised relevantly as follows: (i) the applicant, her parents and older sister had arrived in Australia in December 2001, when she was 15 years of age; earlier in November 2001, her father had applied for a visitor's visa for the family members at the Australian embassy in Jakarta, which was duly granted; a condition of that visa (condition 8503) was apparently that the holder is prevented from applying for a substantive visa, save for a protection or bridging visa, whilst being present in Australia; (ii) upon arrival in Australia, the applicant's parents had approached a migration agent and former practising solicitor Ms Byers for advice as to obtaining a protection visa on the ground that the family members were subjected to persecution in Indonesia as ethnic Chinese Christians; Ms Byers had assisted in the assembly of the application which was made by the applicant as well as her parents and elder sister; (iii) in due course the Department of Immigration and Multicultural and Indigenous Affairs refused that application, and the refusal was upheld by the Refugee Review Tribunal; because doubtless of the urgency of the application, the text of the refusal and the Tribunal's reasons for decision were not placed into evidence before me; (iv) upon attaining the age of eighteen years, the applicant lodged an application for a so-called close ties visa; subsequently on 9 August 2004 Ms Byers received an email from the Department to the effect that the applicant would need to apply for a waiver of condition 8503; that application was made by Ms Byers on behalf of the applicant on 28 September 2004; and (v) on 29 October 2004, the Department sent to the applicant a faxed response by way of rejection of the waiver application. 4 I was informed by counsel for the applicant, who had been very recently briefed, that the professional opinion of Ms Byers had been furnished to the applicant to the effect that the applicant would be eligible for a so-called 'close ties' visa if the Minister waived condition 8503. 5 The very recently retained solicitor for the applicant (Ms Magnusson) informed the Court, through counsel briefed by her, as to the following further circumstances: (i) the applicant resides with her uncle, who is a permanent resident of Australia; (ii) the applicant has 'lost contact with her parents'; (iii) on 28 October 2004, a Department compliance officer Mr Jason Hill ('Mr Hill'), who is stationed at Parramatta, attended the uncle's home at or near Kogarah, and left at the home a card requesting the applicant's attendance at the Department; (iv) in the course of a telephone conversation on 5 November 2004, Ms Magnusson was informed by the applicant that upon her attending at the Department pursuant to that request, the applicant was told by a Departmental officer (who was identified by name) who had spoken with Mr Hill that Mr Hill had said he wanted to help the applicant and would not detain her, and yet further, that upon subsequently attending by prior appointment upon Mr Hill, the applicant was told at the conclusion of the interview that 'he [Mr Hill] would be sending me to Villawood', an event which thereafter occurred; and (v) she (Ms Magnusson) had been subsequently informed by another Departmental officer (who was identified by name) that she would receive reasons for the Department's detention decision, but that later she was informed by that officer as follows: