Collins, B.A. v Minister for Immigration and Ethnic Affiars

[1982] FCA 264

Re: BRETT ANTHONY COLLINS and PATRICIA IRENE DUNN
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G216 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.

CATCHWORDS

Administrative Law - Refusal by Minister to interfere with deportation order - Application for judicial review - Application for stay pending review - Effect of any stay on original order - Whether application has reasonable prospect of success.

Administrative Decisions (Judicial Review) Act 1977, s.15.

HEARING

SYDNEY

#DATE 26:11:1982

ORDER

1. The application for a stay be dismissed.

2. Brett Anthony Collins and Patricia Irene Dunn pay to the respondent his costs of the application.

JUDGE1

This is an application by Brett Anthony Collins and Patricia Irene Dunn pursuant to s.15 of the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act") for an order staying a decision of the Minister for Immigration and Ethnic Affairs. The application is dated 23 November 1982. It seeks a review of a decision of the Minister given on 21 September 1982 whereby he refused to interfere with a deportation order which had been made in respect of Mr. Collins on 4 July 1980 and decided that it should stand, notwithstanding various representations which had been made to him on behalf of Mr. Collins and Miss Dunn.

In their application Mr. Collins and Miss Dunn claim to be aggrieved by the Minister's decision because first, it would result in the deportation of Mr. Collins from Australia and secondly, it would compel Miss Dunn to elect whether she would accompany him or not. The grounds stated are:

1. The respondent failed to take relevant considerations into account in reaching his decision;

2. The respondent took irrelevant considerations into account in reaching his decision;

3. The respondent breached the rules of natural justice in reaching his decision;

4. The respondent exercised his power so unreasonably that no reasonable person could have so exercised the power;

5. There was an abuse of the power exercised by the respondent;

6. Such further or other grounds as become apparent upon the furnishing by the respondent of the relevant materials pursuant to s.13 of the Administrative Decisions Judicial Review Act.

An order is sought quashing the decision of 21 September 1982, a stay of execution of the deportation order dated 4 July 1980 and such other orders as the Court may see fit.

The application for a stay being brought under s.15 the applicants are in the position of having to show a case why the Court should intervene and grant a stay. That section provides that the making of the application under the Judicial Review Act to review a decision is not to affect the operation of that decision or prevent the taking of action to implement it, unless the Court or a Judge so orders. It follows that those who seek a stay have to make out a case to persuade the Court to make the necessary order.

There are two preliminary points which have been raised by Counsel for the Minister to which I should refer. The first point is that the application under the Judicial Review Act concerning the decision of 21 September 1982 is itself out of time and no application has been made to extend the time. The Act requires that an application be lodged within 28 days after the decision unless the time is extended.

It is true that no application has been made to extend the time; the application certainly appears to have been made out of time. However, if this had been the only point involved by way of objection to a stay, I would not have allowed it to prevent me from extending time and granting a stay.

The second preliminary point was one raised on the effect of s.15 of the Judicial Review Act. That section provides that the Court or a Judge may make an order suspending the operation of the decision. It is clear from the section that the decision referred to is the decision which is the subject of the application, in this case the decision of 21 September 1982. It is submitted by Counsel for the Minister that there is no jurisdiction under s.15 to order a stay of the operation of the original deportation order of 4 July 1980.

It appears to me that this submission put to me by Counsel for the Minister as to the effect of s.15 is correct. The section certainly gives no jurisdiction to stay the original deportation order of 4 July 1980. This raises the question what is the effect of staying the operation of the decision of 21 September 1982, because this is a decision, in effect a negative, not to revoke. It is difficult to see the effect that a stay would have on that particular decision. It would mean that the refusal to revoke would not operate, but that would not produce a positive decision to revoke. It would not affect the operation of the original deportation order.

Turning to the matters of substance, it is necessary as I have said, for the applicants, assuming they are to obtain a stay of the decision of 21 September 1982, to make out a case for that. This involves showing that they have an application on foot which 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 applicable in the administration of this Act. Whether s.15 requires an applicant to make out a prima facie case in the sense laid down in Beecham Group Limited v Bristol Laboratories Pty. Limited 118 C.L.R. 618 or whether it is sufficient to show an arguable case as mentioned in Capello v Minister for Immigration and Ethnic Affairs (1980) 2 A.L.D. 1014 might be a question. Each case I think will depend upon its own circumstances in the exercise of discretion.

The Court will naturally be concerned to see whether there are any prospects of success in the application; if the prospects of success are very high the Court will be more concerned to try and hold the position by way of a stay, if it can do so, than it will be if there appear to be virtually no prospects of success.

In the present case Counsel for Mr. Collins was under a disadvantage in presenting to the Court material to enable it to determine the matter. Mr. Collins did not turn up for the hearing. He had just gone on vacation, it was said, and Miss Dunn gave evidence that she was unable to communicate with him. An affidavit which he had made was objected to and was not read. His Counsel, Mr. Littlemore, put every argument that could be put, but he suffered a serious disadvantage in having no evidence from Mr. Collins. Miss Dunn made an affidavit which was directed to showing that she was a person aggrieved. She gave oral evidence which was relevant in bearing upon the difficulty of conducting this application should Mr. Collins be deported to New Zealand. But this was quite insufficient to persuade me that a stay should be granted. In cross-examination she was asked about her presence at a discussion or conference with the Minister when various representations were put by Mr. Collins and herself to the Minister. It was suggested in the course of her evidence that there may have been some report from the Corrective Services Department in New South Wales which the Minister had, which was not put before them so they could answer whatever was adverse in it. This was relied on by Mr. Littlemore in relation to the question of natural justice, which was one of the grounds alleged in the application.

But at the end of the day I was not satisfied that any substantial case for the success of the application - any reasonably arguable case - had been raised under any of the grounds 1 to 5 in the application. So far as ground 6 is concerned the reasons of the Minister, are not yet available. However, the reasons of the Minister for the original decision have long since been available and have been twice debated fully before the Administrative Appeals Tribunal. Nothing emerges which would suggest that when the reasons of the Minister of the material required by s.13 in relation to the refusal to revoke on 21 September 1982 are available, they will furnish any grounds for attacking the Minister's decision on that occasion.

In the result I have arrived at the conclusion that the applicants have not made out a case for a stay under s.15 of the Judicial Review Act. I dismiss the application for a stay. That order for dismissal must carry with it an order that the applicants pay the costs of the Minister of the application.