Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 248

FEDERAL COURT OF AUSTRALIA

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 248 VAN PHONG TRAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V48 of 2004

RYAN J

18 MARCH 2005

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V48 of 2004

BETWEEN: VAN PHONG TRAN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 18 MARCH 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs, including any reserved costs, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V48 of 2004

BETWEEN: VAN PHONG TRAN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 18 MARCH 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 There is before the Court an application pursuant to ss 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth), ss 21 and 23 of the Federal Court of Australia Act 1976 (Cth) and Pt 8 of the Migration Act 1958 (Cth) ("the Act") to review the decision made by the respondent Minister ("the Minister") on 10 December 2003 to cancel the applicant's subclass 820 (Spouse) visa pursuant to s 501(2) of the Act. The applicant seeks declaratory and injunctive relief and writs of prohibition and certiorari in respect of the respondent's decision.

Background 2 The applicant is a non-citizen of Australia and a citizen of Vietnam although he was born in Laos on 2 August 1964. On or about 30 January 1998, the applicant arrived in Australia. On or about 14 September 1999 the applicant was granted a subclass 820 (Spouse) visa which permitted him to travel to and enter Australia awaiting notification of the decision on his application for a subclass 801 (Spouse) visa. 3 On 7 August 2001, the applicant was convicted of trafficking heroin and sentenced by the County Court of Victoria to six years imprisonment with a non-parole period of four years. On 15 December 2001, the applicant received a "Notice of Intention to Consider Cancelling a Visa under Subsection 501(2) of the Migration Act 1958" dated 7 December 2001. The applicant also received a copy of the Minister's Direction No 21 entitled "Direction under section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958" ("the Direction"). On 16 May 2002, the applicant was further convicted on a charge of "intentionally cause injury" and sentenced to three months imprisonment to be served cumulatively with the earlier sentence. 4 On 20 May 2003, the applicant was interviewed by a delegate of the respondent in relation to the notice of intention to consider cancelling his visa. On 21 May 2003 the applicant's de facto spouse was also interviewed. An officer in the Minister's Department subsequently prepared for the Minister's consideration a document entitled "Issues for Consideration of Possible Cancellation of a Visa Under s 501(2) of the Migration Act" ("the Minute"). On 10 December 2003, the Minister cancelled the applicant's visa pursuant to s 501(2) of the Act. The Minister provided reasons for her decision. On or about 23 December 2003, the applicant received a "Notice of Visa Cancellation Under Subsection 501(2) of the Migration Act 1958".