Atputharajah, S. v The Minister of State for immigration Local Government & Ethnic Affairs

[1990] FCA 128

/2g, W .S

JUDGMENT NO. ........ ........ ........ A

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)
GENERAL DIVISION	) NO. WG 31 of 1990
B E T W E E N :	SUTHARSHAN ATPUTHARAJAH

Applicant

and

THE 1-IINISTER OF STATE FOR

IMMIGRATION LOCAL GOVERNfifENT	AND
ETHNIC AFFAIRS

Respondent

CORAM:	FRENCH J.
8 APRIL 1990

EX TEHPORE REElSONS FOR JUDGMENT

In this urgent oral application, the applicant, Sutharshan Atputharajah, seeks an order restraining officers of the Department of Immigration and Ethnic Affairs from causing him to be removed from Australia where he has been in custody since hls arrival on a forged passport on 29 December 1989. The application, although made orally, is in terms an application against the Minlster for Immlgratlon and Ethnic Affairs as respondent.

he applied to the Minister for the grant of refugee status.	custody under sub-s.89(2) of the Migration Act 1958. On 4 January
During the period of nearly three months that this application was processed, he was kept in custody at the Perth Alrport Detention Centre. On 15 January he was Interviewed by an officer of the Department and on or about 30 March his application for refugee status was refused by the Minister, evidently on the recommendation of the Determination of Refugee Status Committee ("DORS"). He was so notified by a facsimile letter dated 2 April 1 9 9 0 to his solicitors. On 4 April they requested the provision of reasons for the decislon under 5.13 of the Administrative Decisions (Judicial Review) Act 1977 . That request was renewed on 6 April. On 8 April, that is today, his solicitor, Mr Stokes, was notified that the applicant had been informed that he was to be placed on a >Ialaysian Alrlines flight leaving Perth for Kuala Lumpa at 1 am tomorrow morning. The present application seeks to restrain the minister through his offlcers from proceeding with the applicant's removal from Australia, until reasons are received for the decision to refuse refugee status. The substantive application foreshadowed by the applicant's solicitor is for judicial review of that refusal under the provisions of the Administrative Decisions (Judicial Review) Act 1977 .
At this stage there is no hint of any error of law or procedure in the way that the decision has been arrived at. On
the face of the materials the applicant may have an arguable case
for refugee status. Generally speaking however, in the absence of
some indication of an error of a reviewable character, the Court

Upon his arrival at Perth Airport the forged passport
relied upon by the applicant was detected and he was held in

does not grant a stay merely to enable an applicant to obtain
reasons. In this case however, I am satisfied having regard to

the length of time that he has been in Australia and the very

short notice of his removal, a request for s.13 reasons then being

I

on foot, there may be room for argument on whether that general approach should be followed in thls case. Having regard to the evident expedition that the legislature contemplates under s.89 of the Migration Act, I am not prepared now to make an order restraining the Department from removing him unt~l reasons are provided, but I will make a temporary order so restraining the Minister and his officers to enable the applicant to more fully argue the question and to enable the Minister to obtaln legal representation. He has been represented by leave before me by a departmental officer, Mr Ray Roberts, who attended at short notice this evening. I propose therefore to grant a stay restraining the applicant's removal from Australia until 6pm tomorrow or further order and I will adjourn the hearing of this claim for interim relief until 4.30 pm tomorrow. The stay wlll be granted under the provisions of s.23 of the Federal Court of Australia Act.

The orders I propose to make are in the following terms:

1. The respondent is until 6 pm on 9 April 1990

restrained from effecting the removal of the

applicant from Australia.

2.    The claim for interim rellef is otherwise adjourned until 4.30 pm on 9 Aprll 1990.

3.    The applicant is to file a substantive application supported by an affidavit from himself or his solicitor and serve it upon the respondent's office in Perth or the Australian Government Solicitor by 11.30 am on 9 April 1990.

I certify chat this and the preceding
three (3) pages are a true
copy of the Ex Tempore Reasons for

Judgment of hls Honour Justice French.

Assoclate: C w . e ~ o c /

 ate:  3' F / P P 0

Counsel for the Applicant: Mr B. Stokes

Solicitors for the Applicant: B.F. Stokes & Associates

The respondent was represented by leave by Mr R. Roberts.

Date of Hearing: 8 April 1990

Date of Judgment: 8 Aprll 1990