Australian Federation of Air Pilots v Ray, R.

[1990] FCA 581

5 / 90 > l , I.

JUDGMENT NO.. ........ ...... ........ ..-U

IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	1 No VG 85 of 1990
\
GENERAL DIVISION	i

BETWEEN: AUSTRALIAN FEDERATION OF AIR PILOTS

(Applicant)

AND :	ROBERT RAY (in his capacity as former Minister of State for Immigration, Local Government and Ethnic Affairs)
(First Respondent)
NORMAN HOFFMAN (in his capacity as former Victorian State Director of the Department of Immigration, Local Government and Ethnic Affairs)
(Second Respondent)
IAN HEATH (in his capacity as Victorian State Director of the Department of Immigration, Local Government and Ethnic Affairs)

-	(Third Respondent)
ANSETT TRANSPORT INDUSTRIES JOPERATIONS) PTY LTD
(Fourth Respondent)
EAST-WEST AIRLINES (OPERATIONS) PTY LTD
(Fifth Respondent)
MAYNE NICKLESS LTD (trading as IPEC Aviation)
(Sixth Respondent) AUSTRALIAN AIRLINES LTD (Seventh Respondent) GERALD LESLIE HAND (in his capacity

REGISTRY

RECEIVED	as Minister of State for
2 2 OCT 1990	Immigration, Local Government and
FEDERAL COURT OF	Ethnic Affairs)

AUSTWWA

PRINCIPAL (Eighth Respondent)

GWiRLES MICHAEL EKISS. SANDOR TOTH,
RICHARD LEE THOMAS. BRUCE CHARLES
MOREHOUSE, ANTHONY P. DAVIS. THOMAS
LARRY SPOTTS. ROBERT NICHOLAS
CARTWRIGHT. MICHAEL LA GRANGE.
GREGORY DAVID OUENNEVILLE. GABOR
KARACSONYI, ROGER ELLIS. ARTHUR
JAMES STANLEY RICKETTS. GEOFFREY
SKERMER, ROBERT JEFFERS. ANTHONY
MERRITT BANTA, TERRENCE IRVINE
BLAIR. TERRENCE ALLAN BROWN. RONNIE
JOE COLEMAN, MARVIN L. DOTSON.
HOUSTON B. GLOVER, ROGER PETER
GOULET, CECIL F. HANSEN. THOMAS L.

HOLLISTER, COLLIE FITCH JAMES 111,

(Ninth to Seventy-Third

Respondents)

PETER WILLIAM MAHANNA, TADIJA
CUPIC. THOMAS MURRAY KYGER. ROBERT
JAMES LOTT. MAYNARD DAVID WEEK.
PERRY JAMES CHILDS. GORDON SCOTT
DANIEL. JOHN HENRY WEBB, PETER
MICHAEL ABRAHAMSON. PHILIP GEORGE
TREMMEL. EDWARD JOHN GODEK. DOUGLAS
JACK MASON. ERIC PHILIP HAUSMAN,
DOUGLAS HANSON, NEVEN SMITH
JURETIC. DANIEL DE HART CARSON,

(Seventy-Fourth to One Hundred and

Eighteenth Respondents)

Coramr Ryan J

Date: 28 September 1990

Placer Melbourne

EX TEMPORE REASONS FOR JUDGMENT

On 31 May 1990, Keely J. granted an interlocutory injunction

in these proceedings. The injunction was prefaced by this

recital: 

"The Applicant by its Counsel having undertaken to pay to any oartv adverselv affected bv the interim iniunctions herein or to any bf the pe;sons named in paragraph 5 OF the Affidavit of Ian Arend Posthumus sworn 10 April 1990 or to Terry Richard Stronks such compensation (if any) as the Court thinks just, in such manner as the Court directs:"

Paragraph 1 of his Honour's order was in these terms:

"The third and eighth respondents, by themselves, their successore, servants, agents and delegates, be restrained, until the determination of the application herein or further order, from granting to any non-citizen of Australia, being by occupation an airline pilot, who:

(a)	was not physically present in Australia at the date of this order, and
(b)	applies, or has, since August 24 1989, applied for any visa, entry visa, entry permit or other permission to travel to or enter Australia pursuant to any nomination or sponsorship by or approval granted to any of the fourth, fifth, sixth or seventh respondents under the Miaration Act 1958 in respect of the employment by any of them of airline pilots

any visa, entry visa or entry permit to the non-citizen under the Employer Nomination Scheme, or the Skills, Transfer Scheme, or Regulation 51, 77 or 139 of the Migration Regulations (save where, in the case of an entry permit under Regulation 139, each permit is proposed to be granted otherwise than on the basis that the non-citizen satisfies the prescribed criteria in relation to an Employer Nomination Visa as required by sub-paragraph 139(c)(iv) thereof)."

The 64th respondent, Peter Miller, and the 104th respondent, Keith Nigel Page, have each applied for a variation of that order to permit them to enter Australia. M r Miller is 39 years old and a citizen of Zimbabwe. He was employed by Air Zimbabwe from November 1979 until April 1990. It appears that at least the last part of that employment was as a captain on Boeing 707 and Boeing 737 aircraft. Mr Miller accepted an offer of employment from the 7th respondent, Australian Airlines Ltd, and was nominated by that respondent for immigration to Australia under the employment nomination scheme. On 2 April 1990 he was issued with a permanent

visa, it is common ground, expires on 2 October 1990. After	resident's visa by the Australian High Commission at Harare. That
accepting the offer of employment from Australian Airlines, Mr Miller resigned his position as a pilot with Air Zimbabwe. That resignation took effect, on the evidence, from April 1990.
In material provided to the Court on information and belief by his solicitor, Mr Miller has detailed circumstances of some hardship which has been occasioned to him since April 1990. That has resulted partly from his resignation of his position with Air Zimbabwe and partly from steps taken to dispose of his house and domestic effects in Zimbabwe with a view to moving to Australia.
Similarly, the 104th respondent, Mr Page, is a citizen of Zimbabwe and was employed by Air Zimbabwe until Februae 1990. He was issued with a permanent resident's visa on 27 February 1990. That visa, it seems to be common ground, expires on 1 January 1991. In a draft affidavit exhibited to an affidavit sworn by Alistair Neil Murdoch on 20 September 1990, Mr Page has indicated circumstances of some hardship to himself, his wife and his children as a result of having accepted the offer of employment from Australian Airlines and having resigned his previous employment with Zimbabwe Airlines.
In substance, all of the matters of hardship to which the Court has been referred in support of the present applications were before Keely J. So too were the matters relied on by the applicant, the Australian Federation of Air Pilots ("the
Federation") as tending to tilt the balance of convenience in favour of the interlocutory injunction which his Honour was
persuaded to grant.
In relation to the present applications, an affidavit has been sworn by Terence Patrick OIConnell, the executive director of the Federation, who deposes to the existence in Australia of a pool of approximately 400 pilots, formerly employed by the respondent airlines, who are ready and willing to return to work with those airlines. Mr OrConnell goes on to depose that a further 600 pilots have been forced to leave Australia and obtain employment overseas. He contends that since early March 1990 the respondent airlines have refused to employ more than a handful of the pilots formerly employed by them and have given preference in employment to foreign pilots and other persons. In paragraph 4 of his affidavit, Mr O'Connell deposes to the fact that many Australian pilots have been living in hardship since resigning their employment with one or other of the airlines on 24 August 1989 "in the face of writs then being issued against them by the airlines".
In the same paragraph Mr O'Connell deposes to alternative, non-flying, employment taken up by unemployed pilots, including labouring, taxi driving and any other employment which they could get to obtain money to meet their commitments and care for their families. It is also indicated that some of those pilots have been able to obtain flying positions in general aviation. M r
pilots like Mr Page and Mr Miller outside Australia and he O'Connell has further sworn that there are jobs available for reinforces that assertion by repeating that approximately 600
Australian pilots have managed to find employment outside Australia to earn income since the events of August last year. Again, aa I understand it, the matters to which Mr OP.Connell has deposed in that affidavit were all in substance before Keely J. at the time of the order of 31 May 1990 and must be taken to have weighed with his Honour in deciding on the balance of convenience to grant the injunction which I have set out.
The new circumstances which appear to me to have arisen and which require a reconsideration of his Honour's order insofar as it applies to each of M r Miller and Mr Page, are that at the time when his Honour made that order there was every prospect of an expedited hearing of the substantive matter. It seems to have been accepted on all sides that such a hearing would be:commenced within six weeks or so of his Honour's order and would proceed until final determination.
Since that time, however, the Federation has issued separate substantive proceedings challenging the validity of subsequent immigration regulations promulgated by the Commonwealth. The parties to that litigation, some of whom are also parties to the present proceeding, numbered VG 85 of 1990, have, on the whole, agreed that the hearing and determination of the present proceedings should be deferred until after the determination of the second substantive proceedings challenging the regulations.
Accordingly, the prospect of a final hearing and where, making the best assessment one can, it is unlikely to be determination of the present proceedings has receded to a point heard and determined before the middle of next year.
Various circumstances have been pointed to by Mr Cavanough of counsel for the Federation as weighing against the exercise of the discretion which has been invoked by each of the applicants, Miller and Page. It was pointed out that Mr Miller had made application for entry as an unsponsored migrant under different
provisions of the law governing migration to this country. It was also contended that Mr Miller, having previously made application as a nominee of an Australian employer, must have been aware that the circumstances prevailing at the time of that application did not satisfy the criteria for the grant of entry on that basis, since there was, as Mr Miller knew, an available pool of pilot labour already in this country. It was also indicated that Mr Miller has received a payment to the order of $4000 or so from Australian Airlines in recognition of the hardship which has been occasioned to him as a result of his being unable to gain entry to this country and take up the employment which has been offered to him by Australian Airlines.
It was said of M r Page that he had attempted to anticipate any order which this Court might make by coming earlier to Australia than he otherwise would have. The Federation also pointed to the fact that he, like Mr Miller, had received a payment by way of subsidy for the expenses which he incurred in
been offered to him. consequence of being unable to take up the employment which had
However, the matters to which Mr Cavanough has referred do not demonstrate, in my view, a lack of clean hands or an absence of probity on the part of either Mr Miller or Mr Page of a kind which should disentitle either of them to a favourable exercise of the Court's discretion. The considerations which have weighed with me in deciding to grant, in a modified form, the variation of the order which his Honour made are that the hardship on which the two applicants relied before his Honour has been greatly exacerbated by the failure, through no fault of theirs, to have this proceeding heard and determined before now. That exacerbation of the hardship is likely to continue, as I have said, well into next year.
There is also the consideration that the visa of Mr Miller expires on 2 October 1990 and that of Mr Page on 1 January 1991. It was suggested by Mr Cavanough that there is a power in the Minister for Immigration, Local Government and Ethnic Affairs to extend each of those visas. However, Mr Bell of Counsel on behalf of the Minister disputes the existence of such a power and Mr Cavanough, as I understood him, was unable to submit that its existence was clear beyond argument. I consider it inappropriate for me to attempt to pass on that question in interlocutory proceedings such as these, but I do take into account the prospect that each of the applicants may be deprived of a legal basis for entry to this country once his visa has expired.
Having regard to all the circumstances which I have outlined, and having given the matter such attention as I can, in the limited time available, and in the light of the somewhat disjointed hearing of this interlocutory application which has been forced on the Court and the parties by the circumstances in which it has been brought, I am disposed to vary his Honour's
order by inserting, after paragraph 1, the following additional paragraph:

"1A. Each of the 64th respondent, Peter Miller, and the 104th respondent, Keith Nigel Page, having by his counsel undertaken to the Court that if, as part of the final determination of these proceedings the Court grants the declarations claimed or makes any order quashing or setting aside the decision sought to be reviewed herein, each of them will, subject to any further or other order of the Court, depart from Australia as soon as practicable after the final determination of these proceedings IT IS ORDERED that, notwithstanding anything contained in paragraph 1 of this order, the 8th respondent is not, from 28 September 1990, by himself, his successors, servants, agents or delegates, restrained from granting to each or either of the said Peter Miller and the said Keith Nigel Page an entry permit authorising him to enter Australia upon his arrival in Australia."

I can indicate by way of explanation of the form of that order that it is not intended that either of the applicants should be placed in any more favourable position to seek the exercise of the Court's discretion upon the hearing or determination of these proceedings than he would have occupied had he remained outside this country until that discretion came to be exercised. Equally, I have not regarded it as appropriate to impose on M r Miller or M r Page a mandatory requirement to leave the country upon a conclusion of this litigation adverse to either applicant without the Court having an opportunity to hear submissions on an appropriate exercise of its discretion in the

make it clear by the form of the order that the onus of	circumstance then prevailing. I have, however, endeavoured to
persuading the Court to make such a favourable exercise of its discretion would be on each of the respondents, Miller and Page.

I shall hear counsel now on the questions of costs of these

proceedings.

j :

I certify that this and the preceding nine (9)	I
pages are a true copy of the Reasons for
Judgment of His Honour Mr Justice Ryan.	I
Associate:

Counsel for Applicant:	Mr A.L. Cavanough
Solicitors for Applicant:	Mahony & Galvin
Counsel for lst, 2nd, 3rd	M r K.H. Bell
and 8th Respondents:
Solicitors for lst, 2nd,	Australian Government Solibitor
3rd and 8th Respondents:
Counsel for 4th, 5th	Mr D.J. O'Callaghan
and 6th Respondents:
Solicitors for 4th, 5th	Freehill Hollindgale h Page
and 6th Respondents:
Counsel for 7th and	Mr I.G. Sutherland
74th-118th Respondents:
Solicitors for 7th and	Phillips Fox
74th-118th Respondents:
Counsel for 9th-73rd	Mr M.J.L. Dowling, QC
Respondents:	with Mr T.J. Ginnane
Solicitors for 9th-73rd	Minter Ellison
Respondents:

Date of Hearing:	28 September 1990
Date of Judgment:	28 September 1990