Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd

[1991] FCA 536

IN THE FEDERAL COURT OF AUSTRALIA)

VICTORIA DISTRICT REGISTRY	) NO. VG 204 of 1991
GENERAL DIVISION	1

Between: ATECA DISAVE RASILA

Applicant

and: MINISTER FOR IMMIGRATION,

LOCAL GOVERNMENT h ETHNIC

AFFAIRS

Respondent

~infeld J Melbourne 6 Aumst 1991

Two matters are before the Court. The first is in two parts - namely whether the existing deportation order signed on 25 July 1991 should be stayed pending the hearing of the action or, as an alternative on that aspect of the matter, whether the respondent should be restrained from deporting the applicant from Australia pending that hearing. The second is whether an order should be made that the applicant be released from custody in which she 6as been for about 2 months.

questions of law raised.

I have already found earlier today that one or more arguable and potentially serious issues exist to be tried in the application for principal relief. Of course, the factual material available on those issues is as yet totally untested, having been placed before the Court primarily by the respondent through his officers in the form of affidavits and annexed exhibits. It is not appropriate in an interlocutory proceeding of this kind to test in detail the veracity of that factual material, still less to argue at length the difficult

An objection is made that the questions of estoppel and waiver

referred to in the earlier judgment were not pleaded by the applicant. Of course, in the application for primary relief, these matters do not arise until the respondent raises by way of answer or defence that the matters relied upon by the applicant in the primary application ought not to be accepted or even considered because they are statute barred. In other words, the applicant cannot plead estoppel and waiver until the facts and law to which they are in answer are raised by way of defence. Thus they only fall to be dealt with by way of reply. Hence the absence of any reference to estoppel or waiver in the application for primary relief is not presently relevant. If it were, the matter could be dealt with by amendment.

The present situation therefore is that if certain facts are proved, the applicant may be able to make out a case for the primary relief o'f a review of the relevant decisions. The applicant ought also to be allowed to seek a review of the deportation order signed on 25 July which, as I earlier	pointed out, appears to have come into existence on the very	same day on which the application for order of review was
sought. It is a nice question as to whether an application for primary relief, issued on the same day as the deportation order, can be amended to embrace that deportation order. If it is not possible, a separate application can be made.

I agree with the respondent that this is not a strong case for

the applicant, the more so since I have now heard the evidence of the applicant and her cousin in support in general terms of the matters claimed in the application for order of review. Nonetheless, Australian law permits the applicant to bring this case before a Court and it seems to me that nothing should now be done to prevent that case being litigated. Thus in my opinion, the deportation order should be stayed and the respondent restrained from deporting the applicant from Australia pending the hearing of the application.

I also agree with the respondent that the matter should be heard promptly, and that there is no reason for any lengthy delay. I have been sitting since early this morning on a matter estimated to take about 15 minutes to an hour. As it is now after 6.30 pm and everyone else has gone home, it is not possible to find a date for hearing immediately but I will try and do so fidst thing tomorrow morning.

The second question that arises is whether the applicant	should be released from custody. It is now settled law that,	if what is now an illegal entrant seeks to challenge her
status as an illegal entrant and a deportation order has been made, the illegal entrant bears the civil onus of convincing the Court that there should be a release from custody pending the hearing of the proceeding.
As Mr Justice Lockhart said in Naiem Aziz Habal v The Minister for Immiaration. Local Government and Ethnic Affairs in an unreported decision on 12 September 1989, the commencing point for the Court must be:

That the applicant is, unless and until this Court says otherwise, a prohibited non-citizen and liable to all the consequences that flow therefrom.

His Honour was of the opinion that an illegal entrant ought not to be released from custody unless he or she satisfies the Court: first, that it is unlikely that he or she will seek to be absorbed into the community; second, that he or she will observe any conditions including conditions as to reporting and notifying changes of address and the like which the Court may impose in ordering release; and third, as to any other matters which the Court may consider relevant in the circumstances of a particular case.

Judged by such criteria, with which I respectfully agree, this

she will live with Mrs Corfe at her residence at Ascot Vale;	is, on any view, a borderline case. The applicant says that
that she will maintain regular contact with the department on any terms which the Court may order; that she will desist from any paid employment which without d&e authorisation is, of course, contrary to law; and that she will take other steps to ensure that in the event that ultimately she is required to be deported, she will not disappear or cause the community or the department expense and trouble in attempting to find her.
The applicant claims to be a person of deep religious conscience, yet, of course, she has been an illegal resident in this country for over seven years. During this time, as it seems to me, she has made no serious efforts at all to regularise her status until quite recently. Like a number of people in the same circumstances, she came forward in early
1990 when the legislation had just been substantially changed
and the government caused a considerable degree of publicity to be given to its desire that people come forward to maximise their chances of regularising their status. Amnesty was in the air, albeit inaccurately, and a large number of people did respond to the government's incentives at the time with a view to seeing whether they were entitled to remain in Australia.
This applicant's reasons for not having come forward prior to that time are not very convincing. She says that she was apprehensive in 1983 and 1984 about returning to Fiji in the light of her failed marriage plans at that time. I accept that at that time it would, or may, have been considerably embarrassing for her to have returned to her family hearth
significant degree of public festivity and celebration. from which she had so recently been farewelled with a
For present purposes I accept, as an apparent part of Fijian culture, that it does not matter, when an intended marriage with a non-Fijian falls through, that the major or entire fault for its failure was, as here, due to the non-Fijian partner. But as time proceeds, the anxiety and embarrassment

of the family must surely wane, even in Fijian cultural perceptions. At least one factor in the applicant not coming forward earlier must have been that she had set up life in Australia, that she had relatives here, that she enjoyed the life here, and that her chances of advancing in life were perceived to be significantly better here than they were with her family in Fiji. After the two military coups in Fiji in May and September 1987, she may well have had some political apprehensions, although as an indigenous Fijian, no particular cause for fear is obvious or has been evidenced to me in this case.

If these matters played no part in her thinking, it would seem difficult to imagine that so many years down the track, she would not have undertaken the very temporary stress that might have occurred by reason of her failed marriage plans, and comfortably balance it by the pleasure and excitement of returning to her' home, family and friends in Fiji. Yet she mentioned none of these matters in her evidence. This must cast doubt on her frankness.

A second factor that comes into this matter is that the	applicant and Mrs Corfe were obvious participants in 1984 in
an effort to delude the Department of Immigration. At that time the department wrote to Mrs Corfe to try to discover the whereabouts of the applicant as a prohibited non-citizen. Its enquiry was met with a letter signed by Mr and Mrs Corfe, then living together, professing complete ignorance of the applicant's whereabouts. This letter was false and, I am satisfied, deliberately so. Despite her claimed lapsed memory in this regard, I am satisfied that the applicant knew that that letter was being written and that the department was being palmed off, to say the least, with a statement of untruth. This is not the conduct of a person who is a sincere religious obsezver of Christianity as I understand it.
Third. There are many cases that come before the Court in which such doubtful conduct is able to be excused or understood on the basis that the person concerned was suffering great stress at the time due to all types of circumstances applying in her own home country. There are many people who, while not qualifying for strict definition as a refugee, nonetheless do have reason to fear an early return or any return to their own country either for themselves or for members of their families. There are many other people for whom deportAtion from Australia would undoubtedly cause Australian citizens very considerable distress. None of those circumstances applied to the applicant or Mrs Corfe in 1984
or, for that matter, for a number of years thereafter to the
time in 1989 when Mrs Corfe was deserted by her husband.
The first test, then, that the cases place before me is whether it is likely that the applicant will seek to be absorbed into the general community and will therefore represent a great problem for the department to detect if that should occur.

Despite doubts about her past commitment to honourable

conduct, the evidence satisfies me on balance that this is

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unlikely. The applicant is obviously an ethnic Fijian. The evidence is that she spends her recreational time very largely with other Fijians who are now residents of Australia. The Fijian community in Melbourne is not particularly large. In the circumstances, the chances that she will disappear and be absorbed into the community do not appear to me to be very high.

Furthermore, such an act by her would be folly of the highest conceivable order. The government has over a long period of time been encouraging members of the community to provide information concerning any person contravening various forms of Australian law, not least residing in Australia contrary to the Migration Act and regulations. It would be most unlikely that the applicant would survive such informing for any length of time if she dhould choose to go underground. If she was then revealed, she would know that her chances of obtaining

deported unceremoniously and speedily. She could certainly	completely disappeared and that she would be likely to be	permission to remain in Australia in the long term would have
not expect to receive any serious or sympathetic consideration from a Court in such circumstances.
She would also be in breach of her undertaking to the Court that she live at a certain place and report at certain times to certain people. As will no doubt be explained to her by her lawyers, an offence of that kind is of very great seriousness and can result in imprisonment at a place far less congenial than the Maribyrnong Detention Centre with all its limitations. There is always a risk when a person in custody is released to await Court proceedings. But 1 think the concept that she would merge in the community, on the basis of the evidence I have heard, to be fairly far-fetched.
The second question is more difficult - that is, whether it is likely that she will observe conditions. The conditions would undoubtedly include that she reside with Mrs Corfe at the Ascot Vale premises; that she notify the department of any occasion in which she intended to be away overnight from that address; that she report on a regular basis, either in person or by telephone or both, to an appropriate officer of the department; that she undertake to the Court that she will attend the Court whenever the case is fixed for hearing; that she undertake not to engage in any paid employment; and that Mrs Corfe make a series of corresponding and supportive
undertakings herself. I have listened carefully to the evidence which both the women have given. I have expressed. my reservations about some of
the evidence which they have given, but I allow for the fact that they were no doubt embarrassed to have to admit being participants in lying in the past. Their deception is now almost seven years old, maybe a little more. People are entitled to human failings and weaknesses - we all are guilty

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of them sometimes - especially when under the scress and pressure of living illegally in a strange country where social rules and behavioural standards are different, and there is not the easy access to support mechanisms which exist in their own countries.

Judged from such a standpoint, the possibility that the applicant would by connivance with Mrs Corfe give those undertakings herself without a determination to keep them, and inveigle Mrs Corfe into giving them with her two small children dependent upon her and no-one else at this time, seems to me almost to verge on the bizarre. I think that it is unlikely that Mrs Corfe would risk what would in effect be a decision that her children be removed to some form of orphanage or child care facility while she spent time in gaol because of her flouting of an undertaking to the Court.

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Nor can I believe, after listening to her, that the applicant would be a party to allowing the children, to whom she is

her. I cannot imagine that she would willingly allow herself	close and who are dear to her, to be so deserted because of
to be subject to some very vigorous penal action by Australian society which would finally put paid, without a hearing of any significance, to any possibility of her obtaining permission to remain in Australia. This would be an extraordinary way to finalise this case and any chances that she might have emerging from it. It would make certain her deportation, whatever she might think about the matter, and remove once and for all any likelihood that the Courts or the authorities in the country would be prepared to consider seriously an application that she not be deport-d.
For all those reasons, I am inclined to believe that she will observe the conditions, which will include a condition that Mrs Corfe also give the undertakings which I shall require at the appropriate time.
The other matters to be considered are of less significance in the present context, but are corollaries to the major ones to which I have been referring. They are, of course, that the applicant not undertake any paid employment, which is completely contrary to Australian law unless the secretary of the Department of Immigration certifies that it is permissible; and secondly, that she undertake to the Court that she will attend the Court when the case is fixed for hearing. As I said earlier, I will attempt tomorrow to get the earliest possible hearing for the case.
of time should be necessary to permit the case to be ready for I agree with the solicitor for the respondent that not a lot
hearing, but I think that some time should be given to deal with a few machinery matters that are not unimportant before the case can properly be heard. One is that there may be a need to amend the existing application for order of review, and in order to bring the complete matter of MS Rasila's
status in Australia to a head once and for all, an application

to review the deportation order if the applicant's advisers

consider that there are any grounds for doing so.

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Another matter that will need, I think, some adjustment was raised by the solicitor for the respondent. This is that if there is any possibility of the applicant establishing any case on estoppel or waiver, it may depend upon evidence to be given by the present counsel for the applicant. If I read correctly between the lines on the scanty material available, some of the contentions of counsel for the applicant concerning her efforts to file an application for an entry permit within the time allowed may in fact be disputed by the respondent's department.

If this is so, then a major factual issue preparatory even to the consideration of the availability of any of these concepts at law will need to be resolved. It would be impossible for such an issue to' be resolved fairly if the counsel appearing for the applicant was a prime witness for the applicant on that issue. This may therefore necessitate a change of

counsel for the applicant and I think that a little time	should be allowed to enable another counsel to become familiar
with the case and the matters involved in it. Nevertheless, I do hope that it will be possible to find a date for hearing in, certainly, not less than four weeks from today. I therefore propose to order until further order that the respondent be restrained from deporting the applicant from Australia and that the applicant be released from custody on a

number of conditions which I shall allow the parties to

discuss before I finally embody them in final form.

The conditions will include that the applicant must reside with Mrs Corfe at 213 Ascot Vale Road, Ascot Vale; that she notify the regional director of the department or his or her nominee not less than 48 hours before any occasion on which she intends to be absent overnight from that address, for more than two nights if she is with the children of Mrs Corfe or one night if she is alone. The conditions must also include that she report in person to an officer of the department nominated by the respondent at the nearest or most convenient departmental office to Ascot Vale on one named day a week in business hours and by telephone to an officer at a telephone number to be notified to the applicant's solicitor on two other days of the week. The applicant must also undertake to the Court that she will attend the Court whenever the case is fixed for hearing, except at directions hearings or mentions. The applicant must also undertake that she will not engage in any paid employment.	I will also requlre undertakings from Mrs Corfe that she will	allow the applicant to live at the address until the hearing
of the matter or further order of the Court. Mrs Corfe must also undertake that if the applicant is away from her home for more than two nlghts with the children or one night without the children, she will forthwith notify the nominated officer of the department at the telephone number stated. Mrs Corfe will also undertake to notify the department if she has reason to believe that any undertaking has been or is being broken by

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the appl'ic=nt:' " Phiiise orders %id conditions will apply until

the hearing of the macter or until further order.

I will listen to any other conditions which the parties would

care to have included, and will adjourn briefly to allow that

to happen.

[ SHORT ADJOURNMENT ]

[ DISCUSSION ]

The undertakings that I require of MS Rasila are as follows:

1. That she reside with Mrs Corfe at 213 Ascot Vale Road, Ascot Vale.

2. That she notify Mr John Anthony Fensling of the Department of Immigration at 55 King Street, Melbourne, on a telephone number which will be given to her, not less than 48 hours before any occasion on which she

intends to be absent overnight from that address for more than two nights if she is with the Corfe children, or one night if she is alone.

1. She is to report in person to Mr Fensling at the same address between 10 am and 12 noon each Thursday between now and the hearing of the case, commencing on Thursday 8 August.

2. She is also to report to Mr Fensling by telephone, at the telephone number that she will be given, between 10 am and 12 noon every Monday and Wednesday, commencing on Wednesday 7 August.

5.   She is also to undertake to the Court that she will attend the Court when the case is fixed for hearing, a date which her solicitor or barrister will advise her of shortly. She is to be in Court on that day but she does not have to be at Court at what we call a mention or directions hearing, that is a procedural hearing when the case is not heard but arrangements are made for the hearing.

6 .    She must al&o undertake that she will not engage in any paid employment between now and the time when the hearing

takes place.

7.   She is also required to give me an undertaking that she will sign a written document embodying all these undertakings, which her solicitor will prepare for her, and submit it to the department through her solicitor within seven days of today.

The undertakings that I require of Mrs Corfe are as follows:

1.   That Mrs Corfe assist MS Rasila to keep her undertakings.

2.    That Mrs Corfe allow MS Rasila to reside in her house at 213 Ascot Vale Road, Ascot Vale.

1. That if MS Rasila is absent from her home for more than two nights if with the children or one night if alone, Mrs Corfe will telephone Mr Fensling at the telephone number she will be given and notify him.

4.  That should MS Rasila undertake any paid employment in contravention of her undertaking and the law, Mrs Corfe will notify Mr Fensling.

1. That Mrs Corfe agree to sign a written undertaking, that MS Rasila's'solicitor will give her, for submission to the department, embodying all these undertakings .

The directions I give are as follows:

1.  Any amended application for order of review of the decisions of 7 June and 11 July 1991, if in fact they are decisions, and any application to review the deportation order signed on 25 July 1991 are to be filed and served by not later than 4 pm on Friday 9 August.

2.   Any additional affidavits to be relied on by the applicant are to be filed and served by not later than 4 pm on Friday 16 August.

3.    Any affidavits in reply are to be filed and served by not later than 4 pm on Friday 23 August.

4 .    The matter will for the moment be relisted for directions on Thursday 8 August 1991 at 9.30 am to fix a date for hearing. The parties should be in a position to agree to a date. The week commencing 2 September is a likely time for the hearing.

Subject to confirmation on Thursday morning at the directions hearing, I will fix a directions hearing for one day in the week commencing 26 August to check that the matter is ready for hearing, assuming that it is going to be heard in the week commencing 2 sep?zember. That date will be fixed finally on Thursday morning. If I am allocated to hear the matter, that directions hearing will be a telephone directions hearing to

me in Sydney at a time that is convenient to counsel.

I will grant liberty to apply to any party on 48 hours notice. Costs of today will be reserved. When the date for hearing is finally fixed, I will fix a time for the delivery of outlines of argument and written submissions on the issues of law.

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I certify that this and the 17

preced~ng pages are a true copy of the

Reasons for J~ljgment herem Of his Honour

Justdce Eafeld