Beracis, J.S. v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 779

Re: JOSEPHINE SALVADOR BERACIS; JANETH HITCHINGS and RODNEY CHARLES HUTCHINGS
And: MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G557 of 1991
FED No. 779

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

HEARING

SYDNEY

#DATE 31:10:1991

Solicitors for Applicant : Mr Hancock of McGlynn and Partners

Solicitors for Respondent : Mr M. Allatt of the Australian

Government Solicitor

JUDGE1

Before the court is an application lodged on behalf of Josephine Salvadore Beracis (the first applicant), her sister Janeth Hutchings (the second applicant) and Rodney Charles Hutchings, the husband of the second applicant, seeking an order for the review of two decisions. The first chronologically is a decision made on 21 July 1988 refusing a grant of resident status to the first applicant. The second is for a review of a decision made on 30 August 1991 by the Immigration Review Panel called upon to review the first mentioned decision.

1. It is obvious that any attempt now under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to seek a review of the decision of the respondent or his delegate of 21 July 1988 would be met by a claim that so much time has now elapsed that the court should not grant leave to review that decision. Accordingly for present purposes I leave matters relating to that decision out of consideration.

2. The matter came before me this morning for directions and a timetable has been set for the filing of affidavit evidence and the like which, having regard to the proximity of the law vacation, extends into the 1992 year. The matter should be ready for hearing early in next term.

3. In the application the applicants sought interlocutory relief restraining the respondents from "considering the making of a deportation order" until the determination of the applications. Having regard to the lengthy period that will elapse prior to the hearing of the matter, I inquired of the representative of the Minister whether he was in a position to give an undertaking to the court either not to deport the first applicant or, alternatively not to deport the first applicant pending the giving of some period of notice. Unfortunately it was not possible for instructions to be obtained and the solicitor for the first applicant made application for me to consider the matter on an interlocutory basis forthwith. The solicitor for the Minister did not object to this course being taken and made no submissions as to whether interlocutory relief should or should not be granted. He expressed the view that it was a matter for the court.

4. On this basis the solicitor for the applicants gave oral evidence on information and belief as to the circumstances surrounding the coming of the first applicant to Australia, the applications to the Minister and their outcome. Also tendered in evidence was a letter from the Immigration Review Panel dated 30 August 1991 and supporting material which set out an assessment made by some unnamed person for the panel recommending that the application for the granting of resident status be refused. For present purposes it may be assumed that the panel actually adopted the matters referred to in that document as they adopted the recommendation made by the writer of it.

5. Briefly it would seem that the applicant is presently 14 years of age, she was born in the Philippines, arrived in Australia on 27 May 1987 and was issued with a six month visitors visa. Prior to that date the second applicant had arrived in Australia on 11 July 1985 having shortly before that date married the third applicant on 7 May 1985. On 30 September 1987 application was made by or on behalf of the first applicant for an extension of the initial six months visitors visa. The application was apparently made on the basis that the second and third applicants could not, at that time, afford to accompany the first applicant back to the Philippines. A further six months extension was sought and granted until 26 May 1988.

6. Before the expiry of that visitors visa an application for the grant of resident status was made by or on behalf of the applicant on 23 May 1988 on the basis of strong compassionate or humanitarian grounds. It seems the first applicant, in the meantime, had enrolled at Holy Cross Junior School in Woollahra and had lived, since her arrival in Australia, with her sister and brother-in-law. It is said that the first applicant's father had separated from her mother some time in 1983 and the applicant was born in a province of the Philippines in which there is no running water and which is controlled by Communist guerillas. It is also said that the applicant in the meantime has lost her ability to communicate in the Philippine language.

7. The applicant's brother left home in 1983 and now lives in an area of the Philippines which was recently devastated by earthquake, she has one uncle who is unemployed and another uncle who lives in the province of Samar. The applicant's mother died in 1989. All that apparently is known about the father at this stage is that he lives somewhere in the province of Samar in the Philippines.

8. The decision-maker acknowledged that there were compassionate aspects to the case, however, it is said that the decision-maker erred in a number of respects in coming to the conclusion that he did. It is not necessary to canvass all of the ways in which it is suggested the decision-maker erred, it is sufficient to refer to two or three matters.

9. Firstly, the assessment referred to the fact that when the sister applied to migrate to Australia in 1985 she made no mention of the parents being separated or that the sister was a dependent. In 1985 presumably the first applicant was living with the mother. It is difficult to see what relevance the omission to make mention of the matters referred to had on the decision. There seems to me to be a prima facie case for the saying that the decision-maker took into account an irrelevant matter. More importantly, however, the decision-maker formed a number of views adverse to the applicant. For example the decision-maker expressed the view that false and misleading information was provided, presumably by the applicant, at the time of the application for a visitors visa and again when an extension was sought. So far as appears no attempt was made to allow the applicant or those who represent her to respond to this.

10. Another adverse conclusion drawn by the decision-maker was effectively that the applicants knew of the whereabouts of the father. In part that came about because of the mother's death certificate containing reference to the address of the father as being the same address as that of his wife. It is said from the bar table that there was some brief discussion about this matter but it is nevertheless alleged that no adequate opportunity was given to the applicants to put their side of the story. Indeed, had such opportunity been given, apparently evidence could have been obtained from the person who recorded the death that he had put the address in for convenience only without in fact the address on the death certificate being the correct address. I am told from the bar table and I accept for present purposes, that such a declaration has in the meantime been obtained.

11. These matters raise at least an arguable issue for trial. I do not of course purport to decide them on their merits at this stage. There being an arguable issue for trial it is clear that the balance of convenience is in favour of the applicant being allowed to remain in Australia pending the ultimate determination of the proceedings in this court. She has been in Australia, now, for some years. There is, of course, no suggestion that she is likely to abscond and could be caused very considerable hardship if she were deported, particularly having regard to the consequences of a deportation under the current law.

12. In these circumstances it seems to me an appropriate case to order that the respondent be restrained from deporting the first applicant until further order.