Moran v Minister for Immigration & Multicultural & Indigenous Affairs

Introduction 1 There is before the Court an amended application pursuant to s 39B of the Judiciary Act 1903 (Cth) to review the decision made by the respondent Minister ("the Minister") on 15 December 2000 to cancel the visa held by the applicant pursuant to s 501(2) of the Migration Act 1958 (Cth) ("the Act"). The applicant seeks the issue of writs of certiorari and mandamus to the Tribunal and any necessary extension of time to enable him to obtain the issue of the said constitutional writs.

Background facts 2 The applicant was born in New Zealand in 1934. He first travelled to Australia in about 1960. He stayed in Australia for several years during which time he was convicted, on two separate occasions, of the offences of "play unlawful game (banker)" and "steal from a person" for which he was sentenced to two months imprisonment fully suspended and a term of imprisonment of four years respectively. 3 In 1965 the applicant returned to New Zealand and remained there for seven years. He married his present wife in 1967 and she has borne him two children. He was convicted of minor offences in New Zealand in 1972. In 1969 or 1970 the applicant passed through Australia on a journey from New Zealand to the United States. 4 The applicant gave evidence at the hearing that he cannot recall precisely when he returned to Australia to live in Sydney but that he travelled to Australia once only and that his family followed a matter of weeks later. Records kept by the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") indicate that a "John Joseph Moran" arrived on May 24 1972. However, the applicant's wife and sons deposed that they travelled to Australia with the applicant and arrived on 28 January 1973. The applicant and his family have resided in Australia since their arrival. The applicant's wife and sons have become Australian citizens. 5 In 1978 the applicant was convicted of "stealing s501 (retail store)". The sentence was recorded as "sentence if call on 3 years begin 16/12/1978". 6 The Department's movement records indicate that the applicant left Australia on 4 March 1984 for a vacation in Thailand. (On being shown Departmental records, the applicant conceded that it had been early in March and not late February as asserted in his affidavit, that he had left for Thailand.) On his return to Sydney Airport the applicant was not permitted to re-enter Australia. 7 Having been refused entry to Australia at Sydney Airport, the applicant purchased a ticket and travelled to New Zealand. He later returned to Australia on a merchant vessel of unknown name which berthed in Hobart. The applicant then immediately returned to Sydney. (In his affidavit, the applicant deposed to having returned by boat within a matter of weeks. However, at the hearing he gave evidence that his return had occurred within days explaining that he had not read the affidavit properly.) Although unsure of the various dates, the applicant was adamant that he had returned to Australia before 2 April 1984. He gave evidence at the hearing that he had determined this by calculating backwards from the date on which he was shown to have left Australia knowing that he had spent between seven and eight days in Thailand and three to five days in New Zealand. It apparently takes merchant ships three days to travel between New Zealand and Australia. 8 Between his return to Australia in 1984 and April 1999 the applicant was convicted of two minor offences. Then, on 19 April 1999, he was charged with offences of supplying an indictable quantity of a prohibited drug and cultivating an indictable quantity of a prohibited drug. He pleaded guilty and was sentenced to three years imprisonment with a minimum term to be served of 12 months. 9 By letter dated 8 June 2000 the applicant was given notice of intention to cancel his visa. Detailed submissions were made on behalf of the applicant in response to that notice. 10 The applicant was released from prison on 5 December 2000. On 15 December 2000 the Minister cancelled his visa. The applicant was taken into immigration detention on 31 January 2001. He did not challenge the decision to cancel his visa and left Australia for New Zealand on 17 February 2001. He then returned to Australia by ship travelling to Brisbane and resumed living in Sydney where he was reunited with his family. 11 On 20 November 2003 the applicant was arrested in Bendigo and charged with involvement in further drug offences. He was denied bail. 12 On 23 April 2004 the applicant was informed that he was also being detained as a suspected unlawful non-citizen. In relation to the drug offences with which he had been charged, he was sentenced on 18 February 2005 to be imprisoned for three years with a non-parole period of 18 months. The applicant claims that, taking into account the period during which he had been imprisoned before sentence, the non-parole period expired on 8 May 2005 and he has been solely in immigration detention since that date. On the other hand, it is asserted on behalf of the Minister that, having declined to apply for parole, the applicant continues to serve the sentence imposed on 18 February 2005.