Attard v Minister for Immigration Local Government & Ethnic Affairs
[1992] FCA 942
•13 Oct 1992
942- ,?S.
JUDGMENT NO. .e.m*..a...e..ae. ,.een.m
IN TtFE FEDERAL COURT OF AUSTRALIA)
NEW SOTJ"~ W ALES DISTRICT REGISTRY) No NG 790 of 1992
GENERAL DIVISION 1
BETWEEN PAUL ATTARD Applicant
AND 'MINISTER FOR IHHIGRATION,
GOVERNMENT C ETHNIC
AFFAIRS
Respondent
EINFELD J smBEx 23 OCTOBER 1992 The applicant, who is a present inmate of the penitentiary at Long Bay, seeks an order for a stay of a deportation order made by the then Minister for Immigration and Ethnic Affairs on 1 August 1982. The matter comes before the Court on Friday afternoon, very late, and has been energised by the
| - | notificati~n -- that the applicant is to be deported at 4.45 pm | |
| tomorrow, Saturday, 24 October. In view of the lateness of the hour, I shall not give full reasons for my decision in relation to the stay at this time. | ||
| In fact, there is actually no formal documentation before the | ||
| Court by way of a motion for a stay and in consequence there - | ||
| is also no affidavit or even written statement of the basis upon which the stay is sought or should be granted. What is | ||
| ||
| by its then President, Justice Davies, on 26 August 1983. The notice of appeal suggests that this was a hearing or decision given in Sydney. In fact, it was given in Canberra. The applicant undertakes to file the appeal and motion and pay the appropriate fee this afternoon. In substance, 'It will have already become obvious that it is necessary for the applicant to obtain an extension of time and therefore the stay is really being sought as an adjunct to an application for an extension of time to file and proceed upon this notice of - | ||
| appeal. | ||
| The respondent says firstly that the Court has no jurisdiction | ||
| ||
| Act 1975 makes provision in section 44(2A)(b) that an appeal may be instituted against a decision of the Tribunal in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976. Order 53 rule 7 of the Federal Court rules says that: |
Application may be made to the court or a judpe for
of section 44 of the Administrative Appeals Tribunal an extension of the time specified in subsection 2A Act for the filing or serving of a notice of appeal, either before or after the expiration of the specified time.
It seems therefore clear that the Court certainly has -
jurisdiction to extend the time for an appeal if it is so minded. Therefore by reason of section 23 and other provisions of the Federal Court Act, as well as the implied or inherent jurisdiction, it would have power to consider the question of a stay of a deportation order pending consideration of the application to extend the time for the filing of a notice of appeal.
The information that the Court has, of necessity because of the suddenness of the matter coming to the attention of the applicant's lawyers and of the Court, is fairly scanty, but it amounts to the fact that the applicant migrated to Australia from Malta in 1964 but has, since %-968, been a prisoner, of the New South Wales Department of Corrective Services. His counsel says that he has no family in Malta and that all his family, which is quite extensive, is in Australia.
e
One of the grounds relied upon for the proposed extension of time is said to be that the applicant did not know that he could appeal the decision of the Tribunal. It is said that the notice of appeal indicates arguable grounds for both the
| - | application - - for extension of time and if granted, for the | -- |
appeal itself. The argument continues that on the balance of
been subject to a deportation order for more than 1 0 years convenience having regard to the fact that the applicant has without its being executed or apparently sought to be executed, there is no reason why, in the exercise of its discretion, the Court would not grant a stay to hear the
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extension of time application.
The respondent says that the notice of appeal in substance is hopeless. He argues that basically what the appeal seeks is a review of the deportation on its merits, which is not available to the Court, and that it therefore has no prospects of success. The respondent says that an extension of time should not be granted as, if it was granted, the appeal would undoubtedly be dismissed.
There is much to support the submissions of the respondent
put, as usual, with eloquence and capability by his
representative. It must be said teat the applicant faces very
considerable difficulties in this matter. It will be obvious,
and I am sure it is not denied by his representatives, that
there has been a very long delay which has taken place since
the dicision sought to be impeached was made. I It would hardly
be answered merely by a statement that he did not know that he
could appeal that decision. On the information given to the
Court, although the lawyers who represented him in the AAT
proceedings were apparently not available to him recently, he
has been before courts on more than one occasion since the
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decision was made when he presumably had at least access to lawyers. These occasions would have presented him with a
number of opportunities to inquire about his rights in this regard. Moreover, the applicant's significant criminal history would have made him, one should liave thought, quite well aware of his general rights, at least in relation to review of primary decisions, whether of courts or tribunals, and he would have developed a considerable familiarity with the legal system by
having been before courts on what appears to be quite a number
of occasions.On the other hand, the question of deportation is a very important matter for any person, especially someone who has lived in the country for 29 years. One of the problems in upholding the respondent's submission is that it does involve a reasonably close analysis of the proposed notice of appeal unsuited for summary disposal of tl& matter in issue. In this regard, counsel for the applicant says that he and his instructing solicitor have only had a very short period of time to consider the matter. They have had little or no access to the applicant, not through anyone's fault but due to the fact that they have been busy elsewhere. They have not seen the respondent's documents or the materials on which the original decision to issue a deportation order was made or, for that matter, the evidence that was heard by the
Administrative Appeals Tribunal. Therefore, his counsel says --
that the notice of appeal ought really to be taken only as a
activated in this Court. general indication of the nature of the arguments sought to be It seems to me difficult, as I said during the hearing, to argue one of the matters it raises, viz. that Justice Davies
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wrongly assessed the risk of recidivism, when, in fact, following his Honour's decision, the applicant was again before the courts on a major criminal matter and was subsequently tried and convicted and sentenced to some seven years' imprisonment. His counsel, in fact, noted that about a
year ago, the Supreme Court reviewed the applicant's sentencing position in the light of new legislation and assessed his minimum term of imprisonment at 23 years and three months, dated back to an offence in 1968. This is, on any view, an extraordinary period and it would seem that, quite apart from whatever the law might be, the applicant may have significant discretionary difficulties, to the extent to which a discretion will arise in this case. With those caveats, I should say that the draft notice of appeal does raise some matters which might be issues of law that can be agitated now.
a
The facts presented to the Court informally this afternoon are that the applicant has been on work release since 17 October 1991 and that his parole would have taken effect from today. This is said to have justified or been likely to bring about his arrest yesterday on the 1982 deportation order. I can
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see, theGefore, that the matter of a stay is fairly finely balanced. On the one hand, persons facing deportation orders
would normally be given the opportunity of activating whatever rights they have, subject to ensuring that the public interest was protected in the meantime. On the other hand stands the respondent's contention that the application is so unlikely to be granted that it couldL not be called arguable. The respondent put no argument on the issue of balance of convenience but it might be said in the respondent's favour that the applicant's long term of imprisonment in Australia reduces the impact of his present claim against deportation that he wishes to spend the time in the bosom of his family.
I think, on balance, that I should take the view generally taken by the Court in these types of matters that the applicant should be given a short opportunity to present his case. I mean by that that I do not propose to make a general stay order that may have effect for a long period of time. I will stay his deportation tomorrowr.but a rigid timetable will be fixed with a view to bringing the application for extension of time and, if granted, the appeal before the Court at the
earliest possible time. The applicant ' S record of behaviour does not suggest that he should be given a great deal of discretion in this regard and, except within a very short compass, the matter will not be fixed to meet the convenience of him or his lawyers. It will be fixed to reflect the fact that the case should be given an opportunity to be presented
at its hiqhest but that the matter must be dealt with with -- exceptional expedition.
the notice of appeal and the appropriate fee will be filed On the undertaking of the applicant given by his counsel that this afternoon for which arrangements have been made so that the Registry will be open to receive it, and on condition that - the applicant files, by not later than 4 pm on Tuesday, 27 October, a motion for a continuing stay of the deportation order, and for an extension of time for the filing of the appeal supported by appropriate affidavit or affidavits, I
will stay the deportation order until 9.30 am on Wednesday 28 October. The matter will then be mentioned again for the purpose of fixing a date for hearing and an appropriate timetable for the preparation of the relevant evidence.
In the event that the applicant wishes to make an application for release from his present custody, that application will be heard at the same time and must be supported by affidavit or affidavits. Arrangements should be made so that the applicant t!X is here at that time together with any person or persons in whose care, custody or supervision it is proposed that he be released.
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I certify that this and the ceueh preceding pages are a true copy of the
Reasons for Judgment herein of his Honour
Justice Einfeld I I
I Associate f
1 Dated; L + / l (/? 1 -c ,H --
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