Lu, Ho Song v Minister for Immigration & Multicultural Affairs [1998] FCA 1723

REASONS FOR JUDGMENT This is a complex matter arising under the Migration Act 1958 (Cth) ("the Act"). The applicant was granted a permanent residency visa in 1982 which was continued as a transitional permanent residency visa under subsequent amendments to the Act. In 1990 he was convicted of two serious offences, one of armed robbery, and one of breaking and entering. He was sentenced to 7 years imprisonment and apparently served a large part of that sentence, having been released only last year. He committed two minor offences while in prison, but I do not treat them as being relevant for present purposes. The Minister proceeded pursuant to s 501 to determine that he was a person not of good character and to cancel his permanent residency visa. He has also, as I gather, declared that it is in the national interest that the applicant be declared an excluded person pursuant to s 502. The applicant wishes to challenge these decisions, and no doubt he has a right to try to do so. However the effect of the cancellation of his visa has been that he is being held in custody, and unless some form of visa is granted to him, he will not be released. I gather that an application for a bridging visa was made, but was unsuccessful because the applicant had not complied with certain preliminary matters. It is suggested that any further application is likely to be prevented by the Minister by use of a procedure which I do not fully understand, but which is probably not relevant for present purposes. There have been proceedings in the Administrative Appeals Tribunal concerning the Minister's determination, although those proceedings have not affected its status. It seems that in the course of those proceedings, different members of the Tribunal have expressed satisfaction that the applicant is not of bad character or that, although of bad character, he does not pose a threat to the community. I take all of those matters into consideration. A preliminary procedural point was taken as to whether or not current legislative limitations placed upon the jurisdiction of the Federal Court to review this decision apply to this application. Apparently, prior to certain amendments to the Act, the Court had a wider discretion than it now has. It is not necessary to be more specific about that matter for present purposes. The applicant submits that those amendments should not be applied to his case because he had status as a permanent resident going back to a time before the amendments. The amendments were made, I gather, in 1994, and the applicant was certainly at that time a permanent resident. However the decision which he challenges was made only this year, and in those circumstances it is difficult to see why the provisions of the legislation relating to review, as in force at that time, should not be applied to it. Reliance was placed upon provisions of the Acts Interpretation Act 1901 (Cth), but it seems that the amending legislation contained its own transitional provisions which exclude such an argument, assuming it was otherwise available. This morning, counsel for the applicant has conceded that there are two quite recent decisions in this context which appear to be contrary to his submission. They are the decision of the Full Court in Yao v the Minister for Immigration and Ethnic Affairs, (1996) 69 FCR 583, and Iona Borsa v Minister for Immigration & Multicultural Affairs [1998] 848 FCA (17 July 1998), a decision of Nicholson J. I am satisfied that the review provisions of the Act, as they were at the time of the decision, are appropriate to the application. I am, for the moment, only concerned with the question of interlocutory relief. Even if there is a serious question to be tried with respect to that point, it is a matter that cannot be conveniently dealt with at the present time. The applicant advances two primary arguments in support of his claim for a stay of the Minister's decision. The first is that it will be difficult for him to prepare for his hearing if he remains in custody. The second is that if he is at liberty he will be able to earn money to pay for his case. Some support was also sought from the decisions of the Administrative Appeals Tribunal to which I have referred. The respondent's primary submission is that this is really a backdoor way of avoiding the procedures for obtaining a bridging visa and ought not to be permitted for that reason. Secondly, it is submitted that the applicant has no real prospects of success in his substantive application. There is something to be said for that argument, in my view. Whether or not a person is of good character is very much a matter of subjective judgment. Of course, many decisions which are subject to judicial review involve a subjective element, but in the present case that seems to be a more significant consideration than is usually the case. The applicant has been convicted of two serious offences and is not long out of gaol. It is, in my view, difficult to see how a decision that such a person is not of good character could be readily reviewed by any agency or tribunal. Regardless of the criteria used to assess it, the logic of the inference is very difficult to resist, although I, of course, accept that the mere fact of convictions is not conclusive on the issue of bad character. I do not consider that the applicant's prospects on the substantive application are very good. The present application is apparently pursuant to s 482(2) which provides that: If an application is made to the Federal Court … in relation to a judicially reviewable decision, … a Judge… may make such orders of the kind referred to in subs (3) as (the) … Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. Subsection (3) provides that: The orders which may be made under subs (2) are orders staying, or otherwise affecting the operation or implementation of the judicially reviewable decision. Although there are some bases for doubting it, I am willing to assume for present purposes that the section authorises a stay of both the decision of the Minister that the applicant is not of good character and also of the subsequent decision to cancel his visa. Even making that assumption in favour of the applicant, however, he faces the considerable difficulty of satisfying me that an order of that kind would be appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal. Whilst it would no doubt be easier for his lawyers if he were not in custody, I am not satisfied that it is impossible, or even unlikely that such preparation can be carried out while he is in custody. In my experience this is an argument that is often advanced in support of a bail application by a person charged with a criminal offence. It is common experience, however, that many successful defences are conducted upon the instructions of somebody who is remanded in custody. As to the financial question, the applicant seems to have been able to come this far and I have some difficulty in inferring that he will not be able to mount his appeal for financial reasons if he is not released. Most of the issues have already been visited, either in this application or in the proceedings in the Administrative Appeals Tribunal. It seems unlikely that there is very much more to be done, other than to conduct the appeal. If the material has been prepared, then I think that it would not be difficult, if it were necessary, for the applicant to appear for himself. It would seem to me to go against the spirit of the Act to release a person in these circumstances just so that he can earn money to pay his costs. Section 196 seems to create a fairly strong presumption in favour of detaining such a person in custody.