Davies v Pagett

Case [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…

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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.

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Orders of the court

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Background

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Evidence Before The Court

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Legal Principle Established

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