Cooley, N. v The Minister for Immigration & Ethnic Affairs

[1987] FCA 314

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I IN THE FEDERAL COURT OF AUSTRALIA 1

9PuEENSLAND DISTRICT REGISTRY 1 QLD G84 of 1987

GENERAL DIVISION 1

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: - B NEAL THOMAS COOLEY

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Applicant

AND:	THE MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS

Respondent

MINLI'IES OF ORDER

JUDGE MAKING ORDER: PINCUS J.

29 ORDER: DATE OF MAY 1987

WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. The application made orally by counsel for the applicant for an interlocutory injunction be dismissed.

2. The applicant pay the respondent's costs of and incidental to the application to be taxed.

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

, IN THE FEDERAL COURT OF AUSTRALIA 1

PUEENSLAND DISTRICT REGISTRY 1 QLD G84 of 1987

I	GENERAt	DIVISION	)
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BJTWEEN: NEAL THOMAS COOLEY

Applicant

AND:	THE MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS I . ' -,

Respondent

PINCUS J. 29 MAY 1987

EX TEMPORE REASONS FOR JUDGMENT

In this matter, an application is made on behalf of Neal

Thomas Cooley, who has not yet filed a formal application but

indicated an intention to d so. l "

Counsel appears for him, and relies on an affidavit,

which was made today, which discloses that the applicant says he

is a citizen of the United States who entered Australia in 1980

and has, for nearly the whole of the time since, lived in this

country; that he is in stable employment; that he has a stable

de facto relationship with one Roberta Perris, whom he intends to

marry; that Roberta Perris is currently married but her marriage

is soon to be dissolved; that he proposes to apply for Australian

citizenship on marrying the lady; that he owns property in this

State, and he proposes to establish a business with Roberta

Percis; that he is, putting it generally, established in the

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i	community; that his father	is very wealthy and proposes to assist	i
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him financially; and that	he wants to become fully a member of
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the community and, indeed, regards himself presently as member

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I	of	the	Australian	community.
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The affidavit discloses, further, that the applicant was

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detained on the 13th day of May 1987 and jailed. H asks that he ? '

be released but, more importantly,	he seeks that	a decision to
deport him be stayed.

The decision is evidenced by a deportation order, which

is in evidence, and which reads as follows:

"Migration Act 1958

DEPORTATION ORDER

WHEREAS NEAL THOMAS COOLEY also known as WAYNE I

ROBERT WATSON being a non-citizen, entered

Australia on the eighteenth day of April 1986	I-
AND WHEREAS the said NEAL, THOMAS COOLEY 1 s deemed to be a prohibited non-citizen by virtue of

sub-section 16(1) of the Migration Act 1958, in

that he was not, at the time of that entry, an Australian citizen and who, at the time of that entry into Australia, produced to an officer, in

respect of that entry, a passport that was obtained

by false representation, and he is not the holder

of an entry permit of the kind referred to in that

sub-section

NOW I, JOHN RICHARD M O N E Y , Assistant Secretary, Compliance Branch, Department of Immigration and

Ethnic Affairs, and delegate of the Minister of

State for Immigration and Ethnic Affairs, DO HEREBY

ORDER, pursuant to section 18 of the Migration Act

1958, that the said NEAL THOMAS COOLEY be deported

from Australia

Dated this 27th day of May 1987"

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3.

It purports to be signed by a delegate of the Minister of State

for Immigration and Ethnic Affairs.

It seems likely that some apprehension existed on the

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side of those advising the applicant that this might occur

because, on 29 May 1987, Messrs. James Carter and Co., solicitors

for the applicant, wrote to the department regarding the applicant

and saying, among other things, this:

"We refer to the above matter and to our letter of

22nd May, 1987.

We quote from paragraph 4 of our letter -

'We foreshadow that we will be making an

application to the Federal Court for an order

to review pursuant to the Administrative

Decisions (Judicial Review) Act 1977 (and

necessry Csic3 interlocutory relief) as soon

as possible after we are informed of the

decision and are provided with the reasons.

Hopefully we will be able to make this

application on Monday 25th instant."'

The same letter went on to ask for a complete statement of the

reasons for the deportation order being made.

When the matter was called on, Mr. Brandis, counsel for

the applicant, was given some documents by counsel for the

Minister which , at one stage, were said to be reasons and later

c said not to be. I told counsel that unless the documents were

tendered, I would ignore their existence, and I do so in view of

the fact that they were not tendered. I consider the matter on

the basis that there is no evidence that reasons as referred to in

the letter of 29 May 1987 were given.

4.

Mr. Brnndis	argues	that	the	deportation	which is	1
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referred to in the deportation order should be stayed because

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otherwise the applicant will not have an opportunity to test the

legal correctness of that order. He says that if the applicant is

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deported, as is intended, at 3 p.m. tomorrow, then by no means can t .

he challenge the decision. I do not think that is correct. If	a	.	.I
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person were unlawfully deported, he could still challenge the

decision. It is more correct to say that if a person were

unlawfully ordered to be deported and the deportation order were

put into effect, it would become inconvenient and expensive for

him to challenge the decision, perhaps so much so, for the average

citizen, as to make a challenge quite impractical.

It is for the reasons of inconvenience and expense that !

one might be discomforted by the immediate carrying out of a

deportation order against the validity of which nothing specific

is urged,	or can be urged	- no detailed reasons for it having been
given.

The Miqration Act 1958 gives power to deport in certain

circumstances; the relevant power is here that contained in s.18

which reads as follows:

"The Minister may order the deportation of a person

who is a prohibited non-citizen under any provision

of this Act."

"Where the Minister has made an order for the

deportation of a person, that person shall, unless

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the Minister evokes the order, be deported

accordingly. 'I

If Mr. Brandis' contention, which has some attraction

from a practical point of view, were accepted, then the mere fact

of the making of an application for a stay, in these cases where

no reasons have been given, must almost inevitably lead to the

exercise of the Minister's power being overriden by the Court.

I do not think a proper construction of the

Administrative Decisions (Judicial Review) Act 1977 could lead to

that result. Nor do I think, in general, that it is a proper

construction of the relevant statutes that the Court should give a

stay merely because execution of the administrative decision w ll,

if the challenge to it is pursued, lead to added inconvenience and

expense for the applicant.

I do not say that there are no circumstances in which

the mere filing of an application under the Administrative

Decisions (Judicial Review) Act can be a ground for staying an

attacked decision. However, it appears to me, as a matter of

principle, that in cases of deportation at fairly short notice,

without a statement of reasons having been given, it cannot be

right, in general, to stay the order upon request. The order will

therefore be that the application made orally by counsel for the

applicant be dismissed, with costs.

i certify that this and the preceding

pages are a trua copy of the reasons for

judgment hcrein of His Honour

Mr. Justice Pincus

Associate

Dated 27 MQJ If"7

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