Bonanno, A v Minister for Immigration & Ethnic Affairs

IN THE FEDERAL COURT OF AUSTRALIA

) )

NEW	SOUTH WALES DISTRICT REGISTRY	)	No.	G 5 0 of	1985
)

DIVISION

GENERAL

)

ALFRED0 EON.WNO

Applicant

MINISTER FOR It!blIGRATION

AND ETHNIC AFFAIRS

Respondent

O R D E R

JUDGE MAKING ORDER	:	Morllng J.
DATE OF ORDER	:	8 March 1985

WERE MADE

: Sydney

THE COURT ORDERS as FOLLOWS:

The operation

of the deportation order made

the respondent

against

applicant

on 2

October 1984 5e	stayed until 4 p.12. G I ~	22 Macch
1985.

2 .

Otherwise,

the

appllcation

for

icterlocutory

relief is dismlssed.

3 .

The question of

costs is rsserved.

I .

I!? TEE

F DEREI,

COURT 07 IUSTFSLIA

) )

NEH SOUTH WALES DISTRICT REGISTRY	I
)
GEXERAL DIVISION	)

I*lIKISTER FOR

IMMIG2ATION

M D	EYHNIC AFFAIRS

Respondent

Morling J .

8 March 1985

M TEMPORE REASONS FOR

JUDGMEMT

This

i s a n

a p p l i c a t i o n

by Mr

Alfred0

Bonanno

f o r

a n

i n t a r l o c u t o r y

o r d e r

t h s t

t he

ope ra t ion

t h e

d e c i s i o n

t h e

respondent

Minis te r

re fuse

h i m

pzrmission

remain

A u s t r a l i a

suspended

pendlng

determination

a n a p p l i c a t i o n

*.;.ich

-6,

has

made

under the Admmis t ra t ive Decis ions

(Judicial

Rsviev)

Act .

the

principal

app l i ca t ion

se&s

a r e n e w

o f

d e x s l o n s

that

not gran ted

fu r the r en t ry pe rml t and

that he b? deFoited.

The

h l s t o r p of

Eonanno’s x t r y

i n t o

and

s t ay

Ac:;jtralia 1 s

s e t

c u t

i n

r e p o r t s

whicn

have

been

furnished

ths

respondent

ijjr

depa r tman ta l

o f f i ce r s .

:Ir

Eo:xmr.o,

a:]

I t a l i a n

c i t i z e n ,

a r r i v e d

I n

A u s t r a l i a

1 s a

visitor

1 0 t h y

1951

m d was

grar.ted

t m p c r a r y e n t r y p e r n i t

f o r a

5 r . a ~

L n t i i

10 October

1981.

Eonamo i s a physically

handicapped

person

having

some

d i s a b i l i t y

c o n s e q u e n t

upon

lnvlng

suf fe red

f rom

po l iomye l i t i s .

apparent ly

cane

t o this

cocntry as

v i s i t o r

i n

t h e b e l i e f

that ,

d l sab led

pe r son ,

might

granted

some	concession and permit ted to s tay permanent l7 .

1 9

August 1981 he

appl ied

for a

change of s t a t u s

under

s . 6 A

the

Miaration

Act

and

his

a p p l i c a t i o n

was

supported by a number of

persons.

However,

the

Mlnis te r

took

the

view

that h e

d l d

n o t

q u a l i f y

t o

d e a l t

with

under

s.6B

and the app l i ca t ion

was

re fused .

E a r l y

i n

November

1982 Llr Bonanno made a much

pub l i c i sed

walk on

c ru t ches

t o

Canber ra

t o

see

the

former

Mlnls te r .

One

t h e Minister's

staff

a p p a r e n t l y

t o l d

Bonanno

that sympathe t ic

ons idera t lon

would

glven

t o a n

a p p l i c a t l o n

f o r

an extension

one or

tvo

lncnths

oi h i s

t e m p o r a r y

e n t r y

p e r m t

e n a b l e

t o

h i m

t o

make

depa r tu re

arrangements.

However,

a p p l i c a t i o n

f s r an

e;rt?.nsign

received from Mr 3manno.

Between November 1982 and January 1?83 a number (cf

representa t lons

were

recs ivsd

the

Mln l s t e r

i n

suppor t

reques t

t h e

a p p l l c a l t

t h a t

pPrmi t t ed

t o

s t ay

A u s t r a l i a . h u t

t h e d e c i s i o n

that

should

leave Aus t ra l ia

was

affirm€&.

I n J u l y 1983 t he

D i rec to r

ths Lnforcel!ent:

Szc t ion

the Dspzrtnsnt of

Immi,?r3tion

a:?d

E thn ic Af fa i r3

Ft , jFos?d t o

3 .

the Mlnister that, since

Mr Bonanno had ignored requests

depart Src:!~ Australia ylnce Novmber 1981, it WAS pt-cposed tkLat

an offlcer should travel to Ballina near where he was li-~lng

for the purpose of ascertaining his then circumstances. He was

to be

asked to depart volutltarily to

avoid deportatlon. That

recommendation was adopted by the Minister and an officer of the Department Interviewed Mr Bonanno In Nimbin on 21 Cecember 1983.

Mr Bonanno was lnformed that

hls application CO remain

in Australla had been refused and that he should make departdre

arrangements and that, falllnq him doing

so, deportation action

would be taken against hlm.

Mr Eonanno then said that it was

his intention to remam i n Australia.

Apparently

some

time

towards

the

end

1904 Mr

Ronanno was agaln interviewed by a departmental officer.

Bonanno told

h i m

that he had heard that his appllcation

repain In Australia had rsfused but that he

had

n o t k e n

ad-zised personally of

that

decision.

admltted

having

received a telephone commcnlcation frcm the Departsent that he should d?part from Australia. He stat?d that he had ljxcme rmantically lnvalved with an Australian citizen, that he dld not regard hlmself as S e l n g in Australla llleqally, that the

Figraclon

Act

was

irrelevant

to him

and

that

had

Intention of deparrxq voluntarily from Australia.

In a

report dated 10 September

1984 these facts xere

brought to the Minister’s attention.	The report concluded m t h
the following paragraphs: -

“9.	Following t,lr Bonanno’s appllcation for

permanent resldence m August 1981, his case has

been considered at ninlsterial level

five

occasions

and

the

declslon

refuse

him

residence has been maintained. In November 1982

Mr Bonanno was advised by the former

minister’s

staff that he

might apply for a short extension

stay

enable

him

make

departure

arrangements but Mr Sonanno made

do application.

10.

Bonanno

pursues

an itinerctnt life-

style. Nevertheless he was informed

by letter

On 7 .7 .83 and personally in December 1983 and August 1984 that his application for residence

Was

UnSUCCeSSfUl

and

that

should

leave

Australia.

Mr Bonanno has stated that he has no

intentlon of departmg Australla.

11.

Bonanno

is a

prohibited

non-cltizen

and he has committed

an offence in becoming a

prohibited non-citlzen.

Mr Bonanno

has no

outstanding applications to this department for

the regularlzation

of his status.

Although

reman5 possible

for

his

status

regularlzed by the grant

of a temporary zntry

permit, in my n e w he has not

established

grounds to

justify

his

continued

stay

Australia.

Bearing in mind the policy

prohibited ncn-citizens and taking Into account

the

clrcumstances

Mr 3onznno 3 s related

above, YOU may decide to srder	his deportaticn.
RECOPWaNDATIOM

12.

I recommend that

you siqn the ?,ttac!ied

order

for

the

deportation

of Mr Alfred0

Bonanno .

Thereafter, on 2 OctoLer 1984 thhe

Minister signed an

crder that the

applicant be dep0rte.l frm Australia.

It 1s

Proposed. that the applicant be deported

on Sunday March

:C.

The applicant claims that

he is a disabled person

within the meaning

the Declaration

H u a ? m

Riqhts

Disabled Persons which is reproduced

in Schedule 3 to the

Ricrhts

Commssion Act 1981. For the purpose of deciding this

application I shall assume that to be the case.

On 6 March a

friend

cf the applicant made

complaint on the applicant's

behalf

the Minister's decision to deport the applicant infringed his

Human

Riqhts

Commission

alleqinq

that

the

uman

rights under the Hunan Ricrhts Commission Act. On

l March 1905

the Human Riqhts Commission, actlnq under S. 9(l)(b) of its Act, resolved to conduct an inquiry as to whether the proposed

deportation of the applicant breached any

of the principles and

rights set forth in the Declaration of the Rishtz of Disabled Persons. The Commlssion has decided to conduct the inquiry on

14 March next and

has

issued a sumlflons to the

applicant to

appear on that date.

The applicant has been

taken

ir.to custody

and

presmtlqr remains there. It appears that the

D r ~ ~ t y

Chairman

of the Commission has advlssd the Department

of hmigratlon 2nd

Sthnic kffalrs

o€

the

ComnAssion's interest

i n th?

ratter.

Inltlallqr, the Mlnlster

agreed to postpone the spplicalt'z

deportation, pending

the Commissicn's lnvestzgat1on. However

he has now come tG the -Jiew thac he is not prrpar?d to further

stay his hand.

- - ,

In these

circumstances

the

applicant seeks

interlocutory relief under

S. 15 of the

Judlcial

Fe-Jiev Act.

In substance,

the relief sought

1 s a stay

of the deportation

order, pending the final hearlng of	the application to this
Court .

The proper approach which should

be taken by the Court

to applications

this klnd has been referred to in ather

cases on more than one occasion.

In Simsek v Minlstzr for

Immisration and Ethnic Affairs ( 1 9 8 2 ) 40 B.L.R. 61, the facts were that a person whom it was proposed to deport made an applicatlon for refugee status to the Committee f o r

Determination of Refugee

Status. That Committee had not dealt

with the application at the time the applicatlon came before

the

Court.

The applicant

souFht mterlocutory 111 ~unctlrre

relief to ensure that he was not deported from dustralia

before the Committee reached Its decision. and

a l s o to secure

his

release from custody. In that case,

3 s In the

prssent

case, there ~7a5

!TO denial that the applicant was a prcXSited

lnmiqrsnt

( o r prahibited

non-cltizen, to

use

the

correct

terminology) nor

was there any contest as to the

nlidlty of

the deportation ocder.

Stepl.en J. h?ld that it ;;as necessary

for the applicant to make out

a prlma fxie case. He held t3at

if the Minister's

powr of depcrtation is to be intsrfered wlth

a case where the applicant does not deny that

he is

prohibited im:ni?rz.nt he must first make out a prlma

f x i z case

€or Injunctive

relief.

Ee cannot rely cpon

a sLbmls?lon that

1 .

deportation would be tantamount to the desiruciion

the

subject matter of hi$

action, and that h? is rntitled

to the

grant of

an injunctlon whether or not a prima facie case is

made out.

In Collins

v The I4lnister for ImmlP-ration and Ethnic

Affairs ( 2 6

October 1 9 8 2 ) .

Bowen C.J., unreported) the Chief

Judge said, In relation to an aFplicatlon fGr a stay	of a
deportation order:

"This

involves

showing

that

they

have

application on foot b;hich has at least some

reasonable

prospect

of success

and

showing

reasons why a stay should be granted.	I do not
think that the standards imported from other

areas of

the law are necessarily appllcable in

the admlnistratlon

of this Act. Whether

S. 15

requires an applicant to make out

a prlma facle

case in the sense laid

down in Beecham Group

Limited v Bristol Laboratories Ftv. Limited 110 C.L.R. 618 or whether It is sufficient to show an arguable case as mentioned in Cap2110 v

Mlnister

for Immlmation and Ethnic Aff3tlrs

(1980) 2 A.L.D.

1014 mlght be a qusstlon. Each

case

think

will

depend

upon

Its

own

circumstances in the exercise

of discretion."

Notwlthstanding th-c. sympathy

thac

I have for any

dlsabled person, and

in particular a disabled person vho wishes

to remain In this cwntry because h e

feels t3at his prosi'scts

here ar5

better than 111 his native Italy, I

xust d.-cide thls

case In

accordance with ?stablished le731 principle.

I must,

therefore, refer to 5.5 of the Judlclal Review Ast

t3 S??

whether 3 case has b e m m:de

Gut.

Counsel for

the applicant

a r u x s that there are two

bases upon which the case might succeed

lf it

goes to trlal.

First, it 1s said that the decisions sought to

be reviewed were

made in breach of the rules of natural justice and thLt, therefore, para. 5(l)(a) of the Judicial Review Act applies. I have read all the material that has been filed and I cannot 3?e

that the applicant has been denied the right

to have hi5 case

considered.

It is clear that over

a long period succesive

Ministers

have carefully and sympathetically considered his

clrcumstances and have consldered everything that has been put

to them on

behalf of the applicant.

I am quite unable to see

that there is any realistic prospect of the case succeedlng

the basls	referred to in para. 5(l)(a) of the Judicial Re-nsw
.	&	A

Counsel f o r the appllcmt also relles

upon para.

5(l)(e) of the Act, as expanded by para. 5(2)(b).

Tnat is LO

say, he

argues t h a t the making

of the dr;.cisions in this case

were lrnproper exercises of the powers cmferr5.d

on the Mulister

because

iallsd to

ake

into

account

r5levmt

conslderatlon. The relevant considerstion that CGUnSt?l Cla im5 was not taken into account Sy the MlnisLer 15 th? circumstance that there is pendinq before the Human Rights Commisslon the

application to which I have already reierr?d. T2l S circumtance. of course, cannot b? relevant to a conslderatlon of the vallditlr Gf the deportation or6er since that oreer i-?;t9

mlde some nonth3 before the appllcLtlrn was	made to <he ! ' , m m
Klahts Commisslon.

9 .

I do

not

think

that the e.rgument based ~ p o n

para .

5 ( 1)

( e )

has

been

shown t o

have m y real

p r o s p r c t

?uc , :e~s ,

nor has

i t been shown that t h e r e i s a r e a l question t o b e

t r i e d

i n that

r e s p e c t .

I n

the f i r s t

p l ace ,

it is

c l c a r that t h e

Minis te r

aware

of t h e

a p p l i c a t i o n

t o

t h e

k!uman

9iThts

Commlssion and I th ink i t 1s

p r o p e r

t o

i n f e r

that h?

has

taken

i t

ln to

accoun t

bu t

has

neve r the l e s s

dec ided

t o

pu t

t he

depor t a t ion

o rde r

i n to

e f f ec t .

Moreove r ,

i t seems

t o me

from a

cons lde ra t ion of

t h e material which

Is b e f o r e

t h e

COU.c t

t h a t

a l l

t h e

m a t t e r s

t h a t

w i l l

b e

r e l i e d

upon

t h e

a p p l i c a n t

t o

q u a l i f y him

for

cons ie ra t ion under

the

Human Riqhts Commjssion

Act have

been

considered

the

Minis

ter

conslder ing

the

a p p l i c a n t ' s

p o s i t i o n

g e n e r a l l y .

F u r t h e r ,

have

cons iderable

d i f f i c u l t y

i n

s s e i n g

hcw

the

c a r r y i n g

i n t o

e f f e c t

t h e

depor ta t ion

rder

could

any

way

i n f r i n g e the p rov i s ions

t he

Dec la ra t ion

th? Ricrhts

Disabled

Persons

my view

t h e rights

cf a person who i s

a prohiSl ted

non-c i t lnen

csnnot

e leva ted by

the

Dec la ra t lon in such

way

t o r e s t r l c t t h e

pGwer of the

Y-llnlster

t o d e p o r t

hzm.

Counssl f u r

t he

app l i can t

has

drawn

s t t ? n t l o n

t o

t h e

d s c l s l o n

of Lockhart

J . i n Sybal

and Ors. v

Hdrford (21

December 1984).

His Honour th s re

r e f e r r sd

t o

t he

d , : c l s lon

c f

t h e

F u l l

C o u r t

this

Cour t

!(lea

Th? I l l n i s t e r

f a r

Immlcratlon ami Ethnic Affairs 13 October 1 9 8 4 ) .

I n that case

t h e

C x r t

held

that

t h e r e

no b a s ~ s In

law

f o r

t h e

.- . - .

10.

Rluhts Commission

?.ct, the delegate of the Mlnlster was obllged

to consider the various rights and princlples enunciated

In the

international

agreenents

referred

that

Act. I am

informed that

an appeal in

Kioa's Case has been heard in the

High Court

but

that

yet

decision has been given.

Counsel for the applicant concedes that

he can gain no comfort

at all from the declsion of this Court in Kioa's Case, but he

relies upon the circumtances that in Aqbal's Case Lockhart J.

stayed the operatlon of the deportation order

on terms that the

applicatlon for review be brought	on f o r hearing as a matter of
urgency.

I think there are valid reasons for distinguishing the

present case from Asbal's Case.

In the present case I do not

think the Minlster failed

t o take lnto account the clrcumstance

that an applicatlon

had

been

made

the Human Riqhts

Comaission. He was

aware of that

clrcumstance

but

has

apparently chosen not to qlve it weight.

The Minister is not

o3liged to glve m y particular welght to the circumstance that

an application has bsen made under the Human

Ricrhts Czmmlsslon

S.	Ths mere making of m application does nor; require the

Mlalster to defer

deporting the appllcant.

For the above reasons,

if the matter ;7ere to rest

there, I would

dismiss

thls

application

In its

elitirety.

However. a practical problem arises.	It is now late G I ~	Frizzy
c

S March and It

proposed to deport the zpplicanr; on zIcn?ay

next, March 10.

Wnilst I am of

the

belief

thjt

application should be

dlsmis-ed, I cannct say that

it W O U ~ , ~

no t

be open to the applicant to

s?ek to persuade an appellate court

that my decision

1 s Incorrect.

will

be physically

impossible for the parties to obtain

a co?y

of these reasons

for a

few days since

I will be sitting interstate early n m t

week. I do not think the appllcant should be deprived of the opportunity of pursuing an appeal because of his inability to obtain a copy of my reasons. If I dismiss the application In

Its entirety today

it would be necessary for the applicant to

take steps over the weekend to appeal

f r o n my decision if he is

advised to appeal. Since

th? applicant is In custody

no harm

can come from

a tempcrary stay of the deportation order.

The order

I propose to make, therefore, is that the

operation of the deportation order made aqainst

the applicant

on 2 October

1984 be stayed until 4 p.m.

3n Friday, 22 Larch.

It is to be understood that unless

an order is made before that

time e:rtendlnq the stay, then the stay will termlnate.

I reserve the cuestior.

of costs for further

a.rqumsnt

[1985] FCA 91

8 Mar 1985