Chumbairux, v Minister for Immigration & Ethnic Affairs

[1985] FCA 544

CATCHWORDS

.ADMINISTRATIVE LAW - Application for stay of deportation order

pending hearing of application under Administrative Decisions

(Judicial Review) Act 1977, for review of Minister's decision to

deport - Allegation that order made in inflexible pursuance of a

policy without regard to the individual case - Marriage to

Australian citizen not "on-going" .

Administrative Decisions (Judicial Review) Act 1977, s.5(2)(f)

Miqration Act 1958, s.GA(l)(b)

VATCHAI	CHUMBAIRUX	-V-	MINISTER	FOR	IMMIGRATION	AND	ETHNIC
AFFAIRS

No. G.322 of 1985

Burchett J.

28 October 1985

Sydney

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. G.322 of 1985
)
GENERAL DIVISION	1
BETWEEN :

VATCHAI CHUMBAIRUX

Applicant

MINISTER FOR

IMMIGRATION AND ETHNIC

AFFAIRS

Respondent

MINUTE OF ORDER OF THE COURT

Judse makins order: Burchett J.

Date of order:	25 October 1985
Where made:	Sydney

THE COURT ORDERS THAT:

(1) Any proceedings to carry into effect he decision

referred to in the application to deport the applicant

be stayed until further order.

(2) Costs reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) )
GENERAL DIVISION	)
BETWEEN:

VATCHAI CHUMBAIRUX

Applicant

m:

THE MINISTER FOR

IMMIGRATION AND ETHNIC

AFFAIRS

Respondent

REASONS FOR JUDGMENT

BURCHETT J.

This is an urgent motion for an interlocutory stay,

pursuant to s.15 of the Administrative Decisions (Judicial

Review) Act 1977, sought in connection with an application under that Act for a review of declsions made in connection with the proposed deportation of the applicant, who has been resident in

Australia since 30 March 1980, but is a native of Thailand.

Upon his arrival in Australia, the applicant was granted

entry under a temporary entry permit for a period of one month.

Whilst here, he met Ly Tieu Linh, who is of Vietnamese origin.

They formed an attachment which led to marriage on 18 April 1981.

Following the marriage, they lived together in suburban areas of

2.

Sydney until January 1984, when the applicant's wife left him to

go to the United States of America.

S.6A(1) of the Miqration Act 1958 provides, in part, as

follows :

"(1) An entry permit shall not be granted to

a non-citizen after his entry into Australia

unless one or more of the following

conditions is fulfilled in respect of him,

that is to say	-
...

(b) he is the spouse, child or aged parent

of an Australian citizen or of the

holder of an entry permit".

The applicant sought an entry permit under this

provision. He was refused, and on 1 March 1984 the refusal was

confirmed in a letter which refers to s.6A and to."normal policy

to grant resident status only when applicants for permanent

residence can demonstrate that their marriage is genuine and

on-going". The letter continues:

"As it has been confirmed that your marriage

has broken down, the Minister has decided to

maintain the decision to refuse you resident

status. 'I

By letter of 18 September 1985 a number of further

matters were put to the Minister in support of a request for

reconsideration of the application. It is the response to that

request which communicates a decision to take action to deport

the applicant. This response is by letter dated 16 October 1985,

5 . 3 .

though it appears that the current postal strike may have delayed

its delivery, and a copy was delivered only on 24 October 1985.

The letter contains the following:

"Departmental policy on applicants	for	the
grant of resident status on the basis of

marriage to an Australian citizen is quite

clear. The marriage must be considered to be

genuine and on-going. There is no doubt in

Mr Chumbairux's case that the marriage is not on-going and he therefore is not eligible for the grant of resident status in Australia.

Your letter of 18 September 1985 does not

raise any matters which ave not been

considered before and it is inappropriate for

Chumbariux's Mr application be o

reconsidered the by Minister. the On

information I have Mr Chumbairux fulfills

none of the conditions of Section 6A of the

Migration Act 1958 for the grant of resident status in Australia. It is therefore open to this Department to seek a deportation order against your client and have his departure enforced."

Upon the application before me, it was accepted on

behalf of the Department that s.6A(l)(b) applied to the situation

of the applicant, but it was argued that the Minister had an

absolute discretion. Salemi's case, 137 CLR 396 was cited. But

the applicant's reliance was on the proposition that the letter

of 16 October 1985 evinces a blind adherence to a policy

obdurately to exclude from consideration any case of a marriage

which is not "on-going" at the date the Minister is called upon

to exercise his discretion (see Rex v. Port of London Authority;

Ex parte Kynoch Limited C19193 1 KB 176; British Oxvqen Co. Ltd.

v. Board of Trade C19711 AC 610; Leqal Services Commission of New

South Wales v. Stephens C19813 2 NSWLR 697 at 702). A policy

4.

pursued in such an inflexible fashion would amount to an attempt

by the executive to amend the sub-section, which contains no such

limitation. It would also collide with secs. 5(2)(f) and 6(2)(f)

of the Administrative Decisions (Judicial Review) Act which refer

to "an exercise of a discretionary power in accordance with a

rule or policy without regard to the merits of the particular

case". The argument gains support from the emphatic assertion:

"The marriage must be considered to be... ongoing", and the

statement "Mr Chumbairux fulfills of the conditions of

Section 6A" (emphases added). It calls in aid the fact that the

policy, as stated, makes no c ncession to i dividual

circumstances, such as the length of the period a marriage may

have endured before	a breakdown, or the ties in Australia it may
have fostered.

It seems to me a serious question is raised by the

application whether the policy has been allowed to grow to an

extent where, in this case, it has obscured the Statutory

mandate. If I were not of the opinion that serious question is

raised, I would certainly think the criterion suggested in Videto

v. the Minister for Immiqration and Ethnic Affairs (Toohey J.,

unreported, 20/8/85) and the cases there cited is satisfied.

There is no doubt the balance of convenience favours the

applicant.

For these reasons I granted late last Friday a stay

until further order of any proceedings to carry into effect the

5.

decision to deport the applicant, and I shall now give further

directions regarding the final hearing of the matter.

I certify that this and the

preceding four ( 4 ) pages are a

true copy of the Reasons for

Judgment herein of his Honour

Mr. Justice Burchett.

Associate