Batey, K.E. v Minister for Immigration & Ethnic Affairs

[1994] FCA 3

3      94

JUDGMENT No. ........ ........ .. I ........ ....

IN THE FEDERAL COURT OF AUSTRALIA )	No. QG 6 of 1994
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: KEITH ERNEST BATEY

Applicant

AND :  MINISTER FOR IMMIGRATION AND ETHNIC
AFFAIRS

Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	14 January, 1994
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

The application for interlocutory relief is
dismissed.

2.        The applicant pay the respondent's costs of and incidental to the application for interlocutory relief to be taxed.

NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE F E D E W COURT OF AUSTRALIA	)	No. QG 6 of 1994
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN:

Applicant

AND:  MINISTER FOR IMMIGRATION AND ETHNIC
AFFAIRS

Respondent

Coram:	Drummond J
Date:	14 January, 1994

Place: Brisbane

EX TEMPORE REZSONS FOR JUDGMENT

By application filed by leave this morning, the applicant seeks an order declaring that the decision by the Minister's delegate of 30 December, 1993 directing his deportation is void. I have before me the applicant's claim for an interlocutory order restraining the respondent from

implementing this order.

The deportation order was made under S. 60 the Miaration Act 1958 on the ground that the applicant was an illegal entrant within S . 14(1).

The applicant's solicitors, on 31 December, 1993,
foreshadowed his intention to challenge this order. However,
no application was filed until today, and then by leave. In

the meantime, arrangements were made by the respondent to implement the deportation order at 10.40 a.m. today and the applicant's solicitors were advised of that mid-morning yesterday. It was that notification which has provoked the application before me.

The solicitor for the applicant says, in his affidavit (the applicant not having himself put any evidence before me):

"6. The applicant seeks to place before the respondent an application for an entry permit. Although a previous application was refused, I am instructed that the application (sic) did not consider the fact that the applicant was married to an Australian citizen in January

1993.

7.  The applicant desires to challenge the deportation order made by the Minister pursuant to S. 60 of the Migration Act. He would be frustrated in doing so if the intention of the Department to deport him tomorrow is effected."

In fact, there was no previous refusal of an deported to the United Kingdom on 24 March, 1993 under an	application by the applicant for an entry permit. He was
order made under S. 12 the Miaration Act as then in force (equivalent to the current S. 55), i.e., on the basis of his criminal history accumulated in Australia. The Full Court's dismissal of his challenge to this earlier deportation Order made in 1986, which he launched while he was still in prison, is reported at 40 F.C.R. 493.
He re-entered Australia in mid-September 1993 from New Zealand. The uncontradicted evidence is that he left that country in circumstances where he was on bail for two offences in respect of which he was arrested there on 2 August, 1993. He re-entry to Australia was clearly an illegal one. This is conceded by his counsel.
From mid-September to 22 December, 1993, he lived with his wife until he was identified by the Queensland Police, who came to his wife's home on that latter date. He was arrested the same day under S. 92 the Miaration Act. An enquiry was held under S. 92(4) and his continued detention was then authorised.
Upon the deportation order being made on 30 December, 1993, by force of S. 92(8) the Miaration Act, he was held thereafter in custody under S. 93. Section 93, so far as is presently relevant, provides:

"(8) A deportee may be kept in such custody as the

Minister or the Secretary directs -

(a)	pending deportation, until he or she is placed on board a vessel for deportation;
(b)	. . .
(C) ..	.

(9) In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in custody under this section."

It is S. 93(9) upon which the applicant relies to seek the interlocutory intervention of the Court notwithstanding the claim in the application for a declaration that the deportation order of 30 December last is void. The applicant's central submission is that he should be allowed an opportunity to make an application to the Minister under S. 93(9), rather than that he be allowed an opportunity to make an application for an entry permit. I accept the respondent's submission that there is no power now in the Minister to grant an entry permit to this illegal entrant, since more than 28 days has passed after his illegal entry in mid-September.

Section 93(9), however, does not empower the Minister to revoke the deportation order or provide any ground for challenging such an order. What it does is to confer a broad discretion on the Minister which enables him, in effect, to stay the execution of a deportation order either indefinitely or for a period. But the applicant who really has had sufficient time between 30 December and today to make

latter's powers under the sub-section has not chosen to do so.	an application to the Minister for the exercise of the
Even if there is a special jurisdiction in this Court which might allow it, in a proper case, to restrain the implementation of a deportation order while a pending application under S. 93(9) was being considered by the Minister - a matter not the subject of any submissions in argument - there is no basis for the exercise of that jurisdiction here, given the applicant's failure, which I infer to have been deliberate, to make such an application to
the Minister. There is no explanation in the material before me for the applicant's inaction, although the respondent on Monday last referred the applicant's solicitor's request of 7 January for an undertaking not to execute the order in view of the applicant's planned challenge to the order and although the applicant has been facing deportation since 30 December last. Nor was any attempt made to show that, despite the history of the applicant's attempts to remain lawfully in Australia and his conduct since being deported on 24 March, 1993, there was ground for thinking that such an application, if it were ultimately to be made, might have a prospect of being successful.
When I asked counsel for the applicant to identify the grounds on which he intended to challenge the making of the deportation order, he frankly acknowledged that there were none. That the Minister did not consider the fact of the applicant's recent marriage, which took place between the Full
Court reserving its decision in November 1992 and delivering its judgment on 8 March, 1993 dismissing his challenge to the
1986 deportation order, could not provide any reason for attacking the order of 30 December, 1993. Section 60 of the Act limits the matters the Minister is to take into account in deciding whether to exercise the power to deport to those prescribed by regulation 7.15. It was conceded by counsel for the applicant, as I have said, that he was an illegal entrant within sub-regulation (a) of this regulation, that he had received the notice referred to in sub-regulation (b) and that he was not an applicant of the kind referred to in sub- regulation (c) or a person of the kind referred to in either paragraph (i) or (ii) of sub-regulation (d); it was also conceded that sub-regulation (e) and (f) were irrelevant to the applicant's case.
The applicant has failed to identify any ground, let alone an arguable one, for thinking that the deportation order of 30 December, 1993 may be invalid.

I there f ore dismiss his application for

interlocutory relief with costs.

I certify that this and the preceding

5 pages are a true copy of the

reasons for judgment herein of the

Honourable Mr. Justice Drummond.

Associate: 

/  ,v'/

Date : 14 January, 1994