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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Davies v Pagett
Sign in free to access the full text
Details
AGLC
Davies v Pagett [1986] FCA 186
Case
[1986] FCA 186
Decision Date
CaseChat Overview and Summary
In Davies v Pagett, the applicants, a family of four, sought a judicial review of deportation orders made against them under the Migration Act, 1958. They were challenging the deportation orders on the grounds that they may be invalid due to a breach of natural justice or other vitiating factors. The Federal Court of Australia was tasked with determining whether a stay of the deportation orders should be granted pending the outcome of a full application for an interlocutory injunction.
The key legal issue before the court was the criteria for granting a short stay of a deportation order when there is no specific ground of challenge provided. The applicants argued that the mere possibility of a legal defect in the making of the orders was sufficient to warrant a stay, while the respondents contended that a serious question to be tried must be demonstrated. The court had to balance the applicants' right to a fair hearing with the government's power to deport prohibited non-citizens.
The court held that while the possibility of a legal defect might warrant a stay in some cases, it was not sufficient on its own to grant a stay. The applicants needed to provide a specific legal basis for their request, such as a clear indication that a breach of natural justice had occurred. The court emphasised that a valid deportation order could not be easily stayed simply because the applicants suggested that there might be an issue with the process that led to the order. The court dismissed the applications for a stay, finding that the applicants had not met the required threshold.
The final orders of the court were that the applications for a stay of the deportation orders be dismissed, and that the applicants pay the costs of the proceedings to be taxed.