Davies v Pagett

[1986] FCA 186

C A T C H W O R D S

ADMINISTRATIVE LAW - judicial review - immlgration - challenge to deportation orders - appllcation for short stay - no specific ground of challenge - crlterla for grant of stay.

Miqration Act, 1958 s.18

Phanq Yook Wah & Ors.

v. John Richard Mahoney & Anor.

QLD G39 of 1986

PINCUS J.

BRISBANE

1 May 1986

IN THE FEDERAL COURT OF AUSTRALIA	)
OWEENSLAND DISTRICT REGISTRY	) QLD G39 of 1986
GENERAL DIVISION	1

BETWEEN :

Applicants

AND : JOHN RICHARD MAHONEY

First Respondent

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	1 MAY 1986
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. The appllcations be dismissed.

2 . The applicants pay to the respondents the costs of and incidental to the proceedings to be taxed.

NOTE: Settlement and entry of orders is dealt wlth in Order 36

I .

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
OUEENSLAND DISTRICT REGISTRY	) QLD G39 of 1986

DIVISION GENERAL 1

BETWEEN: PHANG YOOK WAH

PHANG CHIA NGIT LAN

PHANG KENG CHUN PHANG YING YING

Applicants

AND: JOHN RICHARD MAHONEY

First Respondent

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Second Respondent

PINCUS J.

EX TEMPORE REASONS FOR JUDGMENT

Thls 1 s an application by Phang Yook Wah, Phanq Chia

Nqit Lan, Phanq Kenq Chun, and Phanq Ylnq Yinq for an order of

review of decisions that they be deported pursuant to the

provlsions of 5.18 of the Miqration Act 1958, as prohiblted

non-citizens. The dates of the deportatlon orders are not

certainly known as to all of them, but apparently are 23 April

1986 as to the first two applicants, and 30 April 1986 as to the

last two.

The applicants are husband, wife, and two children who

came to Australia in 1982. They received a temporary entry

permit, over-stayed, and have since lived in this country, and

2 .

the parents have worked here. They have apparently been

successful citizens, and the information before me suggests that

they are people of desirable character.

On 16 April 1986, acting on what is described as

community informatlon, an officer of the department detained the

flrst applicant, and he was interviewed on 17 Aprll 1986. A record of interview 1 s before me. On 18 April, on application by the department to a stipendiary magistrate, authority was glven to detain the first appllcant for 10 days.

On that day, an application was made to Spender J. to

set aside the magistrate’s order, and that application was heard

on 18 Aprll and 21 Aprll. On the latter day, Spender J. made an

order for the release of the first appllcant. Wlth the

concurrence of counsel for the applicants, I have looked at the

papers in relatlon to that first application and have noted that

counsel then actlng for the applicant sald that the famlly were

willing to leave Australia to go to Hong Kong immedlately, and

informed Spender J. that the applicatlon was brought to allow the

applicant a few days‘ breathing space to organlze his affairs In

Australia.	Hls	Honour	emarked	urlng	the	course	of	the
application:

“It appears that no appllcation is made in respect

of the other three, so that what 1 s intended is

that they will voluntarily make arrangements to go

to Hong Kong. ‘I

On 2 3 April, as I have mentioned, a decislon was taken,

so far as the information before me discloses, to deport the

second appllcant, and an order was apparently made In respect of

3 .

her. There is a copy tendered of the order of deportatlon in

respect of the first appllcant. Thereafter, there were some

contacts between the department and the applicants and legal

advisers. The first appllcant apparently changed his solicitor,

and on 30 Aprll, I am told - and the matter has been conducted on

this basis - that deportation orders were made against the thud

and fourth applicants. The immediate purpose of the present

applications is to obtain a short stay of the deportation orders

to enable an application to be brought f o r an interlocutory

inlunction on proper material. The longer term purpose is to

give the first applicant, who, of course, wishes his family to

remain with him in the meantime, some months delay, If necessary,

to enable him to sell his business as a going concern. It 1 s a

restaurant business which	has been closed as	a result of the
events I have mentioned.

There was some debate before me as to the proper test to

be applied with respect to the first, and immedlate, questlon.

Counsel for the respondent urged upon me the view that, in

accordance with the decision of the Full Court In Fainqold v.

Zammit (1984) 1 F.C.R. 87 and the later declsion in Dalllkavak v.

The Mlnister for Immlqratlon and Ethnic Affairs, 61 A.L.R. 471 at

p.478, the court has to inquire whether there 1s a serious

question to be tried. Counsel for the applicants, however,

relied upon cases such as the decision of Toohey J. in Vldeto v.

The Mlnister for Immiqratlon and Ethnic Affalrs, unreported, 20

August 1985. His Honour there remarked:

"Although reference is made in the papers to an

interlocutory injunction, the appropriate relief is

an order suspending the operation of the decision

of the Minister or staying any proceedlngs under

4 .

that decision, pursuant to s.15 of the Judicial

Review Act. The analogy of any interlocutory

injunction is not necessarily appropriate."

His Honour then referred to remarks of Jenkinson J. in

Dallikavak's case:

"There wlll be occasions when the exerclse of the

power 1s sought at a time when the refusal (or the

grant) of a stay wlll have grave consequences, but there is such a question to be tried. There will be cases in which the pre~udicial consequences for it 1 s impossible to form any view as to whether

the applicant of refusal of a stay (or for the

community of grant of a stay) are of a kind or

degree outslde the contemplation of those who frame

the criteria governing the grant of interlocutory

in~unctive relief In litigation concerning

proprietary and contractual interests."

Toohey J . agreed with the view of Jenkinson J . , who adopted the

criterion suggested by Xeely J. In Perkins v. Cuthlll (1981) 52

F . L . R . 236 at p.238.

" ... s.l5(l)(a) requlres an applicant to satlsfy the court that reasons or circumstances exist whlch

make It just that the court should make the order

sought . . .

I have also notlced that In Falnqold v. Zammit the Full Court

recorded without disapproval that Keely J . had given a short stay

when refusing an lnterlocutory in~unction.

I agree with the contention put forward here that quite

different considerations apply with respect to a short stay, the

only purpose of which 1 s to enable an lnterlocutory appllcation

to be brought on proper material. Here, the appllcants have the

dlfficulty that their new solicitor is not fully seized of the

matter, having been recently appointed, although he as obvlously

been vlgorous in pursuit of his clients' interests.

5.

Nevertheless, the circumstances are such as to make it

impossible, in my view, to grant a stay. It is not a case where

there has simply been no time to apply. I have mentioned that

the controversy, if I can call it that for slmplicity, started a

fortnight ago, and during that time, until yesterday, there was

no suggestlon that the applicants were unwilling to leave. Both in the interview on 17 April and before Spender J. on 23 April,

the first applicant put forward a contrary case.

Mr. Morley Q.C., who appears for the applicants, says

that the case proposed to be mounted is on the basis of a breach

of the rules of natural justice, and refers to the recent

decision of the High Court in v. Minister f o r Immiqration

and Ethnic Affalrs 62 A.L.R. 321. He made complalnts of a

general character under this headlng, observing, for example,

that It was not put to the applicants preclsely what the

authorities had against them. He suggested that they had not an

opportunity to answer anything of that sort. I can see the

difficulty under which the applicants labour and the possibility

that, if reasons are given and the departmental papers are

examlned, some ground of challenge to the deportation orders may

emerge: experience suggests that that is not unlikely.

There must, however, in my view, be some specific legal

basis for applying for a stay of a deportation order. The degree of cogency which the applicant must demonstrate in hls attack or

foreshadowed attack depends on the circumstances, but, in

general, it cannot be rlght to say that the mere possibility that

further examination of circumstances surrounding the making of a

6.

deportation order will disclose some legal defect	1 s sufficient
ground for a stay.

That is, in essence, the position here. It 1 s true that

there may be matters which have been considered in making the

orders whlch have not been put to the applicants, but there is no

evidence of the existence of any such matters, and I do not think

I am entitled to speculate that unanswered allegations of

significance underlie the basic case of the respondent, whlch is

simply that there is a power to deport prohibited non-citizens, a

category into which all the applicants admittedly fall.

Puttlng this more simply, in my view, it cannot be the

law that a stay of a deportation order, valid on its face, is to be had simply for the asking, whether for a few days, or even a

lesser tune. It may, to some, seem unfortunate that the course

has been taken of deportating these applicants precipitately but

I am far from thlnking that that course has been shown to have the slightest trace of illegality. If, on simply suggestlng that

there may be a breach of the rules of natural justlce, or some

other vitiating factor, a stay may be obtained, the practlcal

result is that the power of immediate deportatlon given by 5.18

of the Act has been cut down by judicial decision.

2r

In my view, therefore, the applicatlons cannot succeed

and must be dismissed.

4 certify that this and the 5- preceding

p q e s a true copy of the reascm for

judgment hcreln of HIS Honour

Mr. justice Pincus 9 s L!'

Associate

Data 1 - 7 , /48G .