Barrett, I.L. v Senator R.Ray
[1990] FCA 91
•15 Feb 1990
NOT FOR DISTRIBUTION
C A T C H W O R D S
IMMIGRATION - Refusal to grant further entry permit - refusal to grant resident status - order for deportation - failure of delegate to consider applicant's unborn child caused by applicant's own failure to inform delegate - applicant's relationship with hls other chlldren - applicant's criminal record.
ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 S.5 MIGRATION ACT 1958 s.12 B E T W E E N : ISAIAH LAMAR BARRETT Applicant - and - SENATOR THE HONOURABLE ROBERT RAY Minister of State for 15 February 1990 Immigration Local Government and Ethnic Affairs. Respondent O'Loughlin J. Adelaide
IN THE FEDERAL COURT OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY ) NO. SG194 of 1989 1
GENERAL DIVISION
B E T W E E N :
ISAIAH LAMAR BARRETT
Applicant
- and -
SENATOR THE HONORABLE ROBERT RAY Minister of State for Immigration Local Government and Ethnic Affairs.
Respondent
MINUTES OF ORDER
JUDGE 1-lAKING ORDER O'LOUGHLIN J. WHERE PlADE ADELAIDE DATE OF ORDER 15 FEBRUARY 1990 THE COURT ORDERS THAT: 1. The application is refused.
2. The applicant to pay the respondents costs, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of
=Federal Court Rules. NOT FOR DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
1
SOUTH AUSTRALIA DISTRICT REGISTRY ) No.SG194 of 1989 )
GENERAL DIVISION ) B E T W E E N :
ISAIAH LAPIAR BARRETT
Applicant
- and -
SENATOR THE HONOURABLE ROBERT RAY Mlnlster of State for Immigration Local Government and Ethic Affairs.
Respondent
EX TEMPORE JUDGMENT
CORAI4 : 0 ' LOUGHLIN J .
~ ~ ~ B R U A R Y 1990 This is an application for an order of review of a number of decisions of a delegate of the Mlnister of State for Immigration, Local Government and Ethnic Affairs.
The challenged decisions were made on 7 December 1989
and they relate to:-
(a)
the refusal to grant the applicant, Isaiah Lamar Barrett, a further entry permit
(b) the refusal to grant hlm resident status, and
(C) the order that he be deported.
A further decision that the applicant be held in custody pending his deportation was challenged, but wlth the agreement of counsel that issue was deferred so that, as a matter of urgency, prior consideration could be given to the substantive Issues of ongoing residence or deportation, as the case may be.
The applicant is an American citizen who was born on 23
February 1954. In 1982, as a member of the Harlne Corps on board
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| l | the U.S.S. Pelaleu the applicant entered Australla and stayed 5 days. On 5 February 1985, some three years later, he visited | |
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| But whilst in the country he married an Australian citizen, Cynthia Rhonda Carpio, on 1 March 1985. | ||
| He next entered Australia at 1.lelbourne on 27 October 1986 and was granted, on his arrival, a temporary entry permit; that authorized a stay of 2 months. On 18 November 1986 the applicant lodged an application for resldent status in Australia under paragraph 6A(l)(b) of the Migration Act 1958, basing his application on his marriage to Cynthla. He was informed in February 1987 that his application had been approved in principle but that final approval would be dependent upon verification of | ||
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| later, in July 1987, information was received by the Department thtough a newspaper report that the applicant had been convicted of an offence of dishonesty. At about the same time the Department also received advice from the applicant's wife, Cynthia, to the effect that she and the applicant had separated due to his physical abuse of her and that she and her foster mother had taken out restraining orders against him. She allegedly withdrew her support for his application for permanent residence. |
- In September 1987 the Department wrote Mr. Barrett inviting his response to the information from his wife that the marriage had ended and also inviting his response to the newspaper report relating to his conviction for dishonesty in July. In early October, Mr. Barrett responded; he stated that he wished to be reunited with his wife, who was carrying his child. He also stated that since his arrival in Australia he had been successful in business and had made many frlends and business cllents. I interpolate, by way of explanation, that Mr. Barrett had been given permission by the Department to engage in work whilst resident in Australia. - -
The next matter of significance is that the Department,
on 13 November 1987 rejected his application for resident status.He was informed that rejection was based upon the breakdown of
his marriage; at the same time, he was advised of his rights of review. Subject to that however, he was told that his departure from Australia had to be effected within 28 days if he did not wish to appeal against the decision. He dld in fact appeal but apparently he was one day late in the lodgment of the notice of appeal. This was held against him. But ultimately, on 21 July 1989 the Full Court of this Court upheld his appeal against the rejection of his application for an extension of time to commence proceedings under the Administrative Decisions (Judicial Review) Act 1977.
In the intervening period of time, a deportation order had been issued against him on 17 February 1988, but in vlew of the Full Court's decision, that deportation order was vacated on 1 August 1989. In the period since the rejection of his application for residence status, that is 13 November 1987, the applicant has spent a considerable period of time in prison for a varlety of criminal offences. Some were drug related: others related to traffic infringements. ~ u t there were also convictions for sexual and physical assaults, and acts of dishonesty. Furthermore, restraining orders had been issued against him at the suit of various females.
It would seem reasonable to state that the applicant
has led a very involved and complex life so far as it relates to sexual and marital associations. A history of information extracted by officers of the Department from the applicant indlcate that, in addition to his marriage to Cynthia and the child of that marriage, he also claims to have fathered a son now
living with the chlldfs mother in the Philippines. In interviews on 29 January and 8 February 1988 he told of a relationship with another woman called Sonya: he said she was pregnant with his child. He further claimed that his relationship with Sonya had become serious when he learnt that she was pregnant and he then claimed - that is, in early 1988 - that he was living with her. At that time he expressed the view that if he were to depart Australia, Sonyars child would never
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| i | I | see its TdLher arid Sonya would not be able to see him, the tather of her expected child, with consequential emotional trauma. However, that was virtually his only reference to his relationship with Sonya, although she did on 2 February 1988 attend an interview with Departmental officers and confirm the details of her relationship with the applicant. |
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In the interview of 8 February 1988 (the second of the two interviews to which I have just referred) the applicant further stated that another woman, Vesna, was also expecting his child. If, as the applicant stated, Vesna was then pregnant with his child on 8 February 1988, no further information was forthcoming with respect to that pregnancy.
Notwithstanding his alleged relationships with Sonya and Vesna, it is apparent that the applicant, in his contact with the Department, had maintained (until these present proceedings) that his plea to remain in Australia was based upon his ongoing attempts to achieve a reconciliation with Cynthia. Added to that, of course, was the plea based upon him being the father of Cynthiars child and the emotional strain of separation from his
Vesna and indeed, other women, in early 1988, neither they, nor child. Although there were incidental references to Sonya and their pregnancies, nor any children born as a result of those pregnancies were put forward by the applicant as a claim in support of his continued residence in Australia until the institution of these proceedings. With the advent of these proceedings however, he has, upon my review of the matter, shifted ground and he has now identified and highlighted his relationship with Vesna and the chlld born to Vesna on 8 January 1990 as his prime crutch for his continued residency in Australia.
Mr. Barrett's primary ground in support of his present application is built around the alleged failure on the part of the Department to take a relevant consideration into account; that is expressed in the application in these terms:-
"The failure of the applicant to bring to the attention of the department at any tune that hls child had been born was due to the fact that the child was not born until 8 January 1990".
Interpreting this claim, as generously as one can, it would seem that the plea is bullt around the omrssion of the delegate to have regard to Vesna's pregnancy - albeit that the cause of the omisslon was the applicant's own failure to inform the Department of the pregnancy. As I have earlier said, that pregnancy led to the birth of a child - a daughter, Naomi - on 8 January 1990, a month or so after the making of the impugned decisions.
Additional grounds claimed by the applicant are that the delegate had not taken proper account of the applicant's relationship to his other children and the interests of those other children, and that the delegate had failed to take into account the circumstances of the applicant's matrimonial difficulties when forming the opinion that the applicant constituted a threat to the Australian community.
In my opinlon, these particular grounds have not been made out. But I would go so far as to say that, even if they had been made out, I would not regard them as sufficiently material to vitiate the basic decisions. Nevertheless, the fact is that the delegate dld address the applicant's various relationships with other women in some detail when setting out the reasons for his decision.
I refer, in particular, to paragraph 51 of those
reasons :-
"I also noted that in the interview on 8 February 1988 Mr. Barrett had clalmed that Sonya Damjanovic and Vesna Zovko were pregnant with his children. When considering the effects of Mr. Barrett's departure on any other children who may have been born to him in Australia, I took into account that their birth had not been brought to the attention of the Department at any time, including in the submissions made by Mr. Barrett and his solicitor prior to my reconsideration of his application for resident status. Mr. Barrett's case seemed to be primarily based on his relationship with his wife, and their possible reconciliation. I therefore concluded that if Mr. Barrett had fathered children in Australia, other than his son by Cynthia Barrett, he did not share a close relationship with them. In regard to the possible existence of any other children of Mr. Barrett resident in Australia, and the effects of Mr. Barrett's departure on any such children, I made the same conclusions as those concerning Cynthia Barrett's son."
In my opinion, the delegate was clearly entitled to draw the inference that the applicant did not consider the existence or the possible existence of those children as a matter of importance to him at that stage. There were of course as the delegate recognised considerations which pointed in the direction of the appllcantrs continuecl residence in Australia. There were matters such as the length and strength of his ties in Australia, his son born of Cynthia, his daughter Naomi and the possibility of other children. There is undoubted hardshlp attaching to the denial of his application for residence and his prospective deportation; but these matters were all borne in mind by the delegate when reaching his decision.
It remains to be mentioned that a further ground in support of the application was the alleged taking into account by the delegate of an irrelevant consideration, namely the applicant's criminal record. It was suggested that in view of the existence of s.12 of the Migration Act (which deals with the subject of deportation because of criminal conduct) and as the Department had not sought to rely on that section the delegate should not have taken Mr. Barrett's crlminal record into account, or, alternatively, if he was entitled to take it into account, then he placed too much emphasis on the fact of and the degree of criminality.
I reject that submission. In my opinion, it is much the same as the submission that was put before, and rejected by,
Spender J. in ~enevier v Tuong Quang Luu & Anor, (an unreported judgment published on 28 July 1989). At page 23 of hls reasons Spender J. said:- "It was argued that, as the Act provided a specific mechanism for deportation for crime, to take into account the need for community protection from criminal behaviour was an improper exerclse of the discretion under s.6(2) that would circumvent to the established criminal deportation procedure under s.12.
I do not accept this submission. In my opinion the
existence of the statutory scheme based on s.12 of the Act in respect of persons convicted of crlme does not mean that consideration of the communltyrs need for protection from criminal behaviour might not be a relevant factor in the exercise of the dlscretlon under s.6(2) ."
I respectfully agree with his Honour's remarks. I have reached the conclusion that the decision of the delegate cannot be impeached. He neither took into consideration matters that should not have been taken into consideration nor did he omit to take into consideration those matters which should have been taken into consideration. There is nothing withln hls reasons which points to any unreasonableness in reachlng the conclusions that, in my opinion, were inevitable, having regard to the history of this applicant. Accordingly, the application is dismissed.
I order that the applicant pay to the respondent the respondent's costs of this matter to be taxed in default of agreement.
It is appropriate to order that my interim order of 15 December 1989 restraining the respondent from deporting Mr.
Barrett be and is hereby rescinded. There will be general liberty to apply. I certify that thls and the
preceding pages are a true copy of the Reasons for Judgment of
Mr Justice O'Loughlin.
Associate L UJ& Dated: ~ t p o ~ ~
7 '94"
Counsel for the Applicant: Mr. J. Rau Solicitors for the Applicant: Joseph Pert1 Counsel for t h e Respondent: Mr. J. OrHalloran Solicitors for the Respondent: Australian Government Solicitor Hearing Date: 15 February 1990
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