Untan v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is a motion for the interim release of the appellant pending the determination of an appeal from the decision of Branson J heard on 26 November 2002; Untan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1448. The question before her Honour was whether a decision made by the Minister under s 501(2) of the Migration Act 1958 (Cth) ("the Act") to cancel the appellant's visa was vitiated by denial of procedural fairness. 2 Her Honour held that the Minister's decision was made in contravention of a statutory obligation to afford procedural fairness to the appellant but that that the effect of s 474 of the Act was to render the decision immune from judicial review. The appeal from her Honour's judgment is listed for hearing in the May 2003 sittings. The appellant submitted that pending the determination of the appeal, he ought to be released from migration detention because there are serious question as to whether the cancellation of the visa was valid. 3 In support of this proposition the appellant's counsel relied upon the recent decision of the High Court in Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 2 ("S157") handed down on 4 February 2003 and upon an earlier decision of the High Court in Minister for Immigration & Multicultural & Indigenous Affairs v Bhardwaj (2002) 76 ALJR 598. The effect of the submissions made by counsel for the appellant was that if the decision in S157 had been handed down before her Honour delivered judgment in November last year, the appellant would have been successful. 4 It is fairly clear that this submission is correct and that accordingly the appellant would not now have the status of an unlawful non-citizen. The Minister's principal submission was that there was no power to grant interlocutory relief. He submitted that the decision to the contrary in Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 ("VFAD") was plainly wrong and ought not to be followed. He did not point to any balance of convenience considerations which would weigh against the granting of interlocutory relief. We do not think that on the basis of the limited argument before the Court on this motion, we could say that the decision in VFAD is plainly wrong. 5 The only other submission made by counsel for the Minister was that Branson J's decision is final and binding unless and until it is overturned (see Re Macks; ex parte Saint (2000) 204 CLR 158 ("Re Macks")). However her Honour did not make an order affirming the decision of the Minister to cancel the visa. Her Honour merely refused the application for issue of a prerogative writ. 6 Accordingly in our view the decision in Re Macks does not preclude this Court from granting interlocutory relief. If the appellant is to be released, the conditions upon which such release should be made pending a determination of the appeal have been agreed between the parties. In our view an order ought to be made causing his release on those conditions. 7 The costs of the motion are to be the costs of the appeal. Accordingly the orders which we will make are that upon the appellant signing an undertaking in the form of item 7 of the minute filed with the Court, he be released from detention on the terms set out in the minute. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.