Cheung, S.W. v The Hon. Hurford, C.J.

[1985] FCA 624

1.

IN THE FEDERAL COURT OF AUSTRALIA ) H’ -

)

VICTORIA DISTRICT REGISTRY	)	No. VG 256 of 1985
)
GENERAL DIVISION	1
BETWEEN:

SHIU WAH CHFLJNG and JOANNE HUONG LAM Applicants

and

THE HONOURABLE CHRISTOPHER JOHN HTJRFORD,

MINISTER OF STATE FOR IMMIGRATION

AND ETHNIC AFFAIRS Respondent

MINUTES OF ORDER

COURT: Woodward S.

m: 22 November 1985

PLACE: Melbourne

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

2. Leave to appeal be refused.

(NOTE: Settlement and entry of orders is dealt with in 0.36 of

the Federal Court Rules.)

m: Not considered appropriate for reporting or for

general distribution.

(m)

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	No. VG 256 of 1985
)
GENERAL DIVISION	)

SHIU WAH CHEXJNG and JOANNE HUONG LAM Applicants

and

THE HONOURABLE CHRISTOPHEX JOHN HURFORD,

MINISTER OF STATE FOR IMMIGRATION

AND ETHNIC AFFAIRS Respondent

COURT: Woodward J.

W: 22 November 1985

PLACE: Melbourne

?

EX!EWF’ORE JUDGMENT

This is an application for the stay of deportation of an

applicant for an order of review, pursuant to the Administrative

Decisions (Judicial Review) Act 1977, of a number of decisions

made within the Department of Immigration and Ethnic Affairs.

.

Those decisions are set out at length in the

application, but there are, I think, only two decisions that are

seriously challenged. The first was a decision not to grant a

temporary entry permit, and the second related decision	was	to
deport the first-named applicant.

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implications - were not taken into account by the delegate, and

that in that sense there was a failure to take into account

relevant considerations.

However, I am satisfied that the delegate did take into

account the marriage and the implications of it. I think one must

remember that the statements of reasons given by delegates or

ministers in a case such as this, have typically to be prepared

with some speed. In the present case I granted an interim

injunction on the 11th of this month, required the applicants to

serve affidavits in support of their application by the 19th of

the month, and made it returnable today, being the 22nd.

In the course of that process the delegate had reasons

prepared which were signed on 19 November. They cover some four and a half pages of type, and it is true that the delegate does

not dilate upon the marriage. He says that for the purposes of

his decision he accepts that it is a genuine marriage and, in

paragraph 12, he refers in passing to the weight which has to be

given to the marriage, and he says that that weight should be

discounted by the fact that the marriage took place outside any

period in which the applicant was lawfully in the country.

In fact the first-named applicant came to Australia on

26 July 1984, with aone-month visa. He established a

relationship with the second-named applicant in about January of

this year, and they lived together in her family’s home until 20

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October 1985 but, apparently, sleeping in different rooms. They

were married on 20 October, and it was only five days after that

that the first-named applicant was apprehended.

Given that the marriage was only five days old, there

was not really a great deal that the delegate could be expected to

say about it. This is not a case like Kioa's case (above), or the

more recent decision in Kaufusi's case (unreported decision of 30

September 1985), in which Smithers J spoke of the need for the

delegate to give real and genuine and not merely nominal attention

to a question such as the effect on the family of a deportation

order. "he case that his Honour was concerned with there, as in

Kioa's case, was one where there were children involved who had

been born in Australia and were therefore Australian citizens.

Whatever may be said about such cases (and, for myself, I	would
not think there was any need to place very great weight upon

chance Australian citizenship arising because prohibited

non-citizens happen to give birth to children while illegally in

this country), this case i; not like those.

It is undoubtedly necessary that a genuine marriage to

an Australian citizen should be taken into account by the

minister's delegate and given weight - such weight as he sees fit.

But one can easily understand the general requirement that

migrants to this country should not be able to jump the queue, and

if found staying in the country long beyond the time their visa

permits, and breaking the rules of that visa by obtaining

employment, they must expect to be deported. If they are to be

required to make their application for entry to Australia in the

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proper way, then the decision of the delegate that this should be

done in the present case, in spite of the fact that a marriage -

and indeed a genuine marriage - had been contracted a few days

before the prohibited non-citizen was apprehended and a

deportation order made, is entirely reasonable.

The delegate did take into account the circumstances of

the second-named applicant. He satisfied himself that there would

be no likelihood of undue hardship being caused to her by the

deportation of her husband. In particular,	he accepted the fact
that she was in employment in Australia	and, because of her

business commitments, it would not be practicable for her to leave

the country with her husband	or follow him immediately after his
deportation.

But hat very fact, of course, illustrates the

circumstance that she will not be in any financial hardship in his

absence and there is no reason to think that the effect of the

separation in this case will be any different from the inevitable

distress caused to a young couple recently married who are

required by circumstances to separate for a time.

I have no reason to believe that that consideration was

not properly taken into account by the delegate, because the

marriage and its incidents were really the only matters before him

of any significance, pointing in the applicants' favour, when he

was called upon to make his decision.

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Accordingly, in my view, this application must be

dismissed, with costs against both applicants, because the

applicants have failed to establish that there is a serious issue

to be tried. The effect of that is that the stay of deportation

will come to an end at 5 o'clock this evening.

(Counsel for the applicants sought leave to appeal.)

I am not prepared to grant leave to appeal. This is

such a straightforward, clear-cut, unambiguous case, that I have

no hesitation in saying that the applicants ought not to have

their interlocutory injunction and, having said that, it is

impossible for me to say that there is anything which counsel

could sensibly address an appellate court about.

Leave to appeal will be refused.

I hereby certify that this and the five (5) preceding pages are

a true and accurate copy of the

Reasons for Judgment herein of

The Hon Mr Justice Woodward

Associate

Dated: 22 November 1985