Balou, Ratco v Minister for Immigration & Ethnic Affairs

[1984] FCA 140

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VG No. 135 of 1964.

BETWEEN :	RATCO BALOV and A.
ST. G E O X B

(Applicants)

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I. r (Respondent)

m: SiUTHERS J.

15 14av 1984

REASONS FOR JUDGMENT

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HIS HONOUR: I do not think it is necessary for me at this

moment to deliver anything in the nature of a detailed

]udgment. I do feel, on the argument that serious

I questions are to be determined, and that there are

certainly reasonable grounds for thinking that the

applicant ~aay establish hls case for a review of the

decisions to refuse an entry permlt unaer s.6A(2) of the

Micrratlon Act 1958 (the Act) which will involve

consideration arislng under section 6A(!.)(c: and (e)

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relating to the refugee status and the compasslonate

, matters respectively. The view has been tJ.ken by the

respondent that the decision under s.6A(l)(c) is not one

under the Act and I think that is	a problem which needs
to be addressed.

Under s.GA(l)(e) the position has been taken that the review provislor., referred to as review right IV, did not have to be brought to the notlce of the appllca.nt. In relation to the decision not to revoke, that decision

seems to have been made on what 1s more or less an

implied application for a revocation. But, there is a

view that has been taken that a decision not to revoke

would not be a decision under the Act and there 1 s

therefore no reason for the Kinister to consider the

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implied application. But where an application for

revocation is made and the 1.iinister rejects it, It is

difficult to say that that __ rejection is not a declsion

under the Act. These are serious questions and

apparently time will be necessary for the preparation of

i the case for each side. The application has been

dlrected to come on for hearing on 28 June 1986.

The question then arises whether in che meantlme thls applicant should be released. It is quite true that he

is a prohibited non-citlzen and it is quite true that he

broke a reporting conditlon of being at liberty f o r some

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five weeks. It is also true, however, that that episode

was as a result of the refusal of his application in

respect of his being recognised as a refugee. And there

seems to be little doubt that this applicant has an

extreme apprehension oi going back CO Yugoslavia, the

reality of which and the rationality of which is not for

me to determine although it seems to be very real. And

it was in that connection that he "disappeared".

However, during the whole tlme of his disappearance he

was in touch with the woman that he now wants to marry,

Y every day. When he came back, he again made his

presence very apparent by his performance in the

telephone booth. That was no doubt irrational by

ordinary standards. Then he was arrested 2nd the

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authorities thought it was necessary to arrange that e

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serve his waiting time in Pentridge.

Since then he has obviously settled down to some extent. -

The weight of psychiatric evidence appears to be that it

is not beyond the bounds of possibility that he might

commit suicide or attempt to if all hope of remaining in

this country or in some simllar country, certainly not Yugoslavia, was lost. On the other hand, I could not

help but be impressed by the evidence this Court had In

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' , which Balov expressed the view that he now had real hope

' ! that he might succeed in further applications to the

Minister through the medlum perhaps of a successful

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application on his current application for review.

I cannot help believing that while there is such a hope

he will not do himself any harm. There is no evldence

that he has ever threatened or assaulted other persons

and I think therefore that there is no danger of him

doing anything of that kind. He has lived here now for

quite a time and on the whole, as far as can he seen, he

has behaved as a very satisfactory citizen.

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On? cannot help feeling that this fear of going back to

Yugoslavia is a very important element In this case

requiring the deepest investigation. It cannot be

denied that fear of being taken into custody by some

secret security agency in a totalitarian country is

something that nobody could face with equanimity and

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without the greatest fear. However, while that fear is

suspended by some hope that he might succeed in his

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application here, I dd not think there is any danger

that he will commit suicide or that, certainly, there	1s
no danger that he will injure any other citizen.

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Accordingly, I think he should be released upon terms

that he report every second day to the nearest police

establishment to the home of Ms. St. George and that he

live at that home during the period that this case is

waiting to cone on and that Ms. St. George gives an

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