Bagus, N. v The Minister for Immigration, Local Government & Ethnic Affairs

[1993] FCA 30

NOT SUITABLE FOR DISTRIBUTION

IN THE F E D E W COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	NG 873 of 1992

)

GENERAL DIVISION 1

BETWEEN :  NELSON BAGUS

Applicant

AND :  THE MINISTER FOR IMMIGRATION. LOCAL
GOVERNMENT AND ETHNIC AFFAIRS

Respondent .

- , . \.

CORAM: Burchett J.
PLACE: Sydney

DATE : 6 January 1993

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

Mr Allatt, for the Minister, seeks to avail himself of a liberty reserved by Mr Justice Beaumont to apply on two days' notice to vary or discharge certain orders, which he made on

24 December 1992, for the release upon certain conditions of

unless pursuant to that llberty some further order is made,	is clear that subject to compliance with the conditions and
the order for release will come into effect at the moment that Friday 8 January ceases.
~r Allatt is not yet in a position to put, it appears, an affidavit before the court in support of any variation or discharge of the orders, but he says that he desires to call oral evidence from a lady who had been alleged to have entered into a form of marriage with the applicant. In the meantime, until he can call this lady, he asks that I extend the suspension of the order or otherwise vary it so as to enable the applicant to continue to be kept in custody beyond the date mentioned in the order. Mr Allatt has indicated that the nature of the evidence he seeks to adduce from the witness he wishes to call is to the effect that the marriage alleged to have been entered into by the applicant, was, in fact, bogus - indeed Mr Allatt said to me that the only evidence he wished to put before the court was evidence that the marriage was bogus, the reason for seeking to adduce that evidence being, that it would bear on the acceptability of the undertakings
upon which his Honour Mr Justice Beaumont was prepared to make
the order for release.
Mr Allatt submits that the purpose of the reservation of liberty to apply was to enable him to do what he now seeks to do. I have perused the transcript of what occurred before Mr Justice Beaumont on 24 December 1992, and it seems to me to be quite clear that his Honour's purpose was quite different. His Honour expressly said: "I am going to assume in your favour" - addressing himself to Mr Allatt - "at the moment, that the material in evidence which you have tendered on that other matter" - it is not disputed that his Honour was referring to the allegation that the marriage was bogus - "is for my purposes established". His Honour added: "Of course there is no evidence to the contrary." I think that that was a correct statement, but even if it was not, his Honour went on to say: "Well, I would not interpret that Mrs Bagus' evidence today is contradicting what is in the document." This, again, was a reference to the same allegation, evidence concerning which had been put before his Honour by way of tender of departmental documents. His Honour later said:

an applicant seeking to challenge a decision of the Minister for Immigration, Local Government and Ethnic Affairs. The orders that his Honour made were - apart from the conditions to which I have compendiously referred - subject to a suspension up to and including Friday 8 January 1993. His Honour then added the liberty to which I have referred, but it

"Why should not I order a release on condition, on the security being given, but suspend the operation of that order until the first week of January, so that you, that is the Crown has an opportunity to investigate the matter further. What I am concerned about from the Crown's point of view is that you have been confronted with a lot of material here today. A case that was made as it were on the run, at very short notice, and therefore it would be fair to allow you the opportunity to come in to vary and discharge these orders I make."

There was further reference by his Honour, in more specific

terms, to some of the matters embraced by that general

observation, and in particular to oral evidence that had been given by the applicant's brother, who was to provide $5,000 security as one of the conditions to which the order was made subject. Especially, a question which seems to have concerned his Honour was whether that amount of security would be a significant matter to the brother, and therefore a reasonable assurance that conditions to which the order was made subject would be complied with. His Honour again said:

"Making an order for release conditional on security being provided, but suspending the operation of the order I am about to make for 15 days - it would be a fortnight and a day - to give the Crown the opportunity to come in in that period, if it wishes to vary and discharge the order, to investigate some of the matters that have been raised here for the first time."

It seems to me very clear that his Honour could not have been adverting to matters raised by the Crown itself, but to matters raised for the first time, in the course of the hearing before him, in support of the application for the interlocutory order. It was matters of that kind which could justify, by the very fact that they had been raised only at the last moment, the reservation of the liberty which his Honour in fact reserved. There are other passages in the transcript to which reference could be made, but I think the references that I have made must suffice.

In my opinion it is clear that his Honour was not concerned to reserve liberty on the basis on which Mr Allatt now seeks to apply, for the very good reason that his Honour was proceeding upon the basis of an acceptance of the fact which Mr Allatt now seeks to prove. I do not think anything has been put before me, either by way of evidence, from the bar table, or in argument, or in any other way, which would lead me to vary or modify or further suspend the order made by Mr Justice Beaumont. Accordingly the application to have me do so is dismissed.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

Associate:

Date: 11 February 1993

Solicitor for the Applicant:	Mr J.G. Diaz of Messrs Diaz & Associates
Solicitor for the Respondent:	Mr M. J. Allatt, Australian Government Solicitor
Date of hearing:	6 January 1993