Cruz, Claro v Young, Michael, Minister of State for Immigration & Ethnic Affairs

[1987] FCA 809

LIMITED DISTRIBUTION

\y

CATCHWORDS

officer.

execute deportation order.

Administrative Decisions (Judicial Review) Act 1977: S. 5.

CLARO CRUZ and CLEOME CRUZ V. MICHAEL YOUNG, MINISTER OF STA';E FOR

IMMIGRATION AND ETHNIC AFFAIRS

G 4 6 3 of 1987

LOCKHART J.

2 3 SEPTEMBER 1987

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA 1

1

NEW SOUTH WALES DISTRICT REGISTRY	1	No. G 463 of 1987
)
GENERAL DIVISION	1

BETWEEN : CLARO CRUZ and CLEOME CRUZ

Applicants

m: MICHAEL YOUNG, MINISTER OF	STATE FOR IMMIGRATION AND
ETHNIC AFFAIRS

Respondent

JUDGE MAKING ORDER:	LOCKHART J.
DATE OF ORDER:	2 3 SEPTEMBER 1987
WHERE ORDER MADE:	SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed;

2. There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

1

NEW SOUTH	WALES	DISTRICT	REGISTRY	)	No.	G 4 6 3	of	1 9 8 7
1

DIVISION GENERAL 1

BETWEEN: CLARO CRUZ and CLEOME CRUZ

Applicants

-STATE FOR IMMIGKATIOfJ AND AND : MICHAEL YOUNG, MINISTER OF

ETHNIC AFFAIRS

Respondent

23 September 1 9 8 7

REASONS FOR JUDGMENT

LOCKHART J.

The applicants seek a stay of execution of a deportation order made by Mr. Michael Young, Minister of State for Immigration and Ethnic Affairs, under the Administrative Decisions (Judicial Review)

Act 1 9 7 7 ("the Judicial Review Act"). The applicants, Claro and

Cleome Cruz, are husband and wife and they are residents and citizens of the Phillipines. They have four children, the ages of whom are not

clear from the evidence but I gather from what has been said that hey

are young, though two sons are of an age where they are capable, it

seems, of working to earn money, assuming employment can be found.

Because arrangements have been made to return them, the

applicants and their children, to the Phillipines in less than one

hour from now, I shall make my observations brief.

2.

T h e a p p l i c a n t s h a v e a n u n f o r t u n a t e m i g r a t - i o n h i s t o r y i n t h a t

t h e y e n t e r e d A u s t r a l i a i n i t i a l l y i n 1 9 8 4 a n d were l a t e r d e p o r t e d f r o m

A u s t r a l i a . T h e y t h e n s o u g h t t o r e - e n t e r t h i s c o u n t r y a t a time w h i c h

is n o t c l ea r f r o m t h e e v i d e n c e b u t i t seems t o b e r e l a t i v e l y recent.

T h e y d i d so u n d e r f a l s e p a s s p o r t s a n d w i t h o u t d i s c l o s i n g t h e f a c t of

t h e i r p r e v i o u s d e p o r t a t i o n f r o m t h i s c o u n t r y .

C o n s e q u e n t l y , t h e y were c h a r g e d w i t h o f f e n c e s u n d e r

Commonwealth law a n d s e n t e n c e d to terms o f i m p r i s o n m e n t . T h o s e terms

h a v e b e e n s e r v e d . T h e male a p p l i c a n t , Claro C r u z , was a r r e s t e d o n 9

May, 1 9 8 7 , a n d i n t h e c o u r s e of a r r e s t a p p a r e n t l y j u m p e d o u t of a

t h i r d s t o r e y w i n d o w a n d s u f f e r e d v e r y s e v e r e i n j u r i e s t o h i s r i g h t

f e m u r a n d l e g . T h e r e are medical r e p o r t s i n e v i d e n c e t h a t h e h a s

s i n c e r e c e i v e d e x t e n s i v e medical t r e a t m e n t a n d a t t h i s s tage h e c a n

o n l y w a l k w i t h t h e a i d o f m e d i c a l s u p p o r t s , be t h e y c r u t c h e s o r , as

seems more l i k e l y , some f o r m o f metal or s t e e l f r a m e . Mr. C r u z s t i l l

requires f u r t h e r m e d i c a l t reatment f o r h i s i n j u r i e s a s w o r k s t i l l

r e m a i n s to be d o n e , i t seems, t o g e t h i s l eg i n w h a t e v e r s h a p e i t c a n

be p u t i n t o f o r t h e f u t u r e . W h e t h e r h e w i l l s u f f e r p e r m a n e n t i n j u r i e s

t o h i s l e g o r n o t , I k n o w n o t , a l t h o u g h t h e e v i d e n c e d o e s r a t h e r

s u g g e s t t h a t h e w i l l .

T h e M i n i s t e r , by h i s d e l e g a t e , ordered t h e d e p o r t a t i o n o f t h e

a p p l i c a n t s o n 2 3 A u g u s t h i s y e a r . T h e r e a f t e r , t h e s o l i c i t o r f o r t h e

a p p l i c a n t s made a t t e m p t s t o o b t a i n i n f o r m a t i o n f r o m t h e D e p a r t m e n t of

M i g r a t i o n a n d E t h n i c A f f a i r s r e l a t i n g t o t h e w r i t t e n ma te r i a l t h a t had

b e e n p u t b e f o r e t h e d e l e g a t e of t h e Minister s u p p o r t i n g t h e m a k i n g of

a d e p o r t a t i o n order . R e p r e s e n t a t i o n s were made t o t h e e f f e c t t h a t t h e

3 .

medical condition of the male applicant was such that it was wrong

that he be deported from this country at least until	his medical
treatment had been completed here and he was fit to travel.

A s a matter of urgency, I gave leave for an application for

review under the Judicial Review Act to be filed in court this morning

and have heard evidence and argument	in relation to it. The
applicants challenge the deportation order	itself on the basis that it

was an unreasonable exercise of power in terms of S. 5 ( 2 ) (g) of the

Judicial Review Act in that no reasonable administrative officer could

have reached such a decision	in the light of the medical evidence as
to the male applicant.

It is also alleged that the Minister's delegate predetermined the position of the male applicant and ordered his deportation having

regard to some fixed and invariable policy applicable to prohibited non-citizens and without regard to the merits of this particular case.

It is apparent from the evidence - flimsy though it is at

this stage - that the medical condition of the male applicant was

before the department and its officers at all relevant times. Whether

or not the Court, if it were making the decision that has been made in

this case faced with the same material that was before the delegate

would have come, as a matter of fact, to the same decision as the

delegate did, is not the question that is before this Court. This

Court is here as a court of law and a court of law only to see if

error of law has occurred in the sense in which error of law has been expressed in legislative terms in the Judicial Review Act, in

particular, S . 5. So far as the deportation orders themselves are

4 .

concerned, I cannot see that any reasonable arguable case has been

advanced to support error on the part of the decision maker.

I turn then to the next question, which is what is said to be

the decision by the Minister made on or about 22 September 1 9 8 7 to

execute the deportation order of 23 August 1987, and the decision

which it is said to follow to refuse to grant a temporary entry

permit. Such decisions made by the Minister are capable of review

under the Judicial Review Act. Judicial review of such decisions is a subject of debate. It is inappropritae to examine that question today

so I act on the assumption in favour of the applicants as I have.

It is said that this decision constitued an unreasonable

exercise of power under S. 5 ( 2 ) ( 9 ) of the Judicial Review Act, again

on the basis that no reasonable administrative officer would have

ordered the execution of the deportation orders as to the male

applicant or indeed the female applicant whilst the male applicant was

in the physical condition that he is. It is also said that that

decision had paid	insufficient weight to the male applicant’s	medical
condition.

Whilst no-one likes to see people who suffer physical

infirmitites such as the male applicant obviously does, put to the

ordeal of boarding aircraft, landing in countries and receiving

unknown treatment at the hands of migration officials at the other end and things of that nature, it is not the function of this Court to do other than see if, on the material before it, it could be said that

there is some reasonably arguable point	of	law in favour of the
applicants.

5 .

Having thought hard about the matter, I have come to the conclusion that no such reasonable case has been established. This is a matter which I think is not one in which the court can intervene and not one in which it should intervene. Accordingly, I refuse the

application for review and the immediate injunctions sought by the

applicants to stay extention of the deportation order pending the

applicants seeking leave to appeal.

I certify that this and the

preceding four ( 4 ) pages are a true

copy of the reasons for judgment

herein of the Honourable Mr. Justice

Lockhart.

Date: 23 September 1987