Doherty, I.R. v Minister for Immigration & Ethnic Affairs - [1987] FCA 12

Re: ILONA RENATE DOHERTY; MATTHEW JAMES KEEFE; TISSARIAN MATTHEW KEEFE and
JOERG WALETZKO
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WA G89 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Administrative Law - judicial review - application for review of denial of further temporary entry permits, denial of residential status and consequent deportation order - temporary entry permit expired - motion to strike out application as disclosing no reasonable basis in law - applicant married to, but no longer living with, person holding a permanent entry visa - applicant lived in defacto relation with Australian citizen, but now separated, and with a child by him - failure to consider merits of the case - improper exercise of power, based on policy - denial of natural justice

Administrative Decisions (Judicial Review) Act 1977 s.5

Migration Act 1958 ss.6, 6A, 7, 18

Federal Court Rules O.20 r.2, O.54 r.6

HEARING

PERTH

#DATE 20:1:1987

ORDER

The application, in so far as it relates to

A. the decision of the respondent, made 4 August 1986 pursuant to sub-s.6(2) of the Migration Act 1958, that the first applicant and the fourth applicant not be granted further temporary entry permits;

B. the decision of the respondent, made 4 August 1986 pursuant to paras.6A(1)(b) and (e) of the Act, that the first applicant and the fourth applicant not be granted permanent residence;

C. the decision of the respondent, made 4 August 1986 pursuant to s.18 of the Act, that the first applicant and the fourth applicant be deported to West Germany

is dismissed.

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

JUDGE1

This application was originally brought in the name of Ilona Renate Doherty, the first applicant. It challenged decisions of the respondent that she be deported and that she not be granted permanent resident status.

As a result of a recent amendment to the application, there are now four applicants. The second applicant is Matthew James Keefe with whom Mrs. Doherty is living in a somewhat mercurial relationship. The third applicant, Tissarian Matthew Keefe, was born on 25 April 1986 and is the child of Mrs. Doherty and Mr. Keefe. The fourth applicant, Joerg Waletzko, was born on 16 April 1977 in the Federal Republic of Germany and is Mrs. Doherty's child by a previous marriage.
In its amended form the application seeks to review four decisions said to have been made by the respondent.

1. The first is a decision, made 4 August 1986 pursuant to sub-s.6(2) of the Migration Act 1958, that Mrs. Doherty and Joerg not be granted further temporary entry permits.

2. The second is a decision, made 4 August 1986 pursuant to paras.6A(1)(b) and (e) of the Act, that Mrs. Doherty and Joerg not be granted permanent residence.

3. The third is a decision, made 4 August 1986 pursuant to s.18 of the Act, that Mrs. Doherty and Joerg…

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 Doherty, I.R. v Minister for Immigration & Ethnic Affairs

Details

AGLC: Doherty, I.R. v Minister for Immigration & Ethnic Affairs [1987] FCA 12
Case: [1987] FCA 12
Decision Date: 20 JANUARY 1987

CaseChat Overview and Summary

The case of Doherty, I.R. v Minister for Immigration & Ethnic Affairs involves the applicants, Doherty and another, who sought judicial review of decisions made by the Minister for Immigration & Ethnic Affairs regarding their temporary and permanent residence status in Australia. The applicants had their temporary entry permits expire and were subsequently denied further temporary entry permits, permanent residence, and faced deportation orders. The applicants contested the Minister's decisions, arguing that the decisions were based on policy rather than the merits of their individual cases, and that there was a failure to consider relevant facts, thereby denying them natural justice.

The primary legal issues before the court were whether the Minister's decisions were legally valid and whether there were procedural errors that warranted judicial review. The applicants argued that the Minister failed to consider their individual circumstances, relied on policy instead of the merits, and did not adhere to principles of natural justice. They also contended that the Minister had not properly exercised the powers conferred by the Migration Act 1958.

The court examined the grounds of judicial review, focusing on whether the Minister's decisions were based on improper considerations or failed to take into account relevant factors. The court found that the Minister had correctly applied the provisions of the Migration Act and had not exercised the power in an arbitrary or capricious manner. The court held that the Minister's decisions were supported by the relevant statutory provisions and that there was no procedural unfairness or denial of natural justice. Consequently, the court dismissed the applicants' application for judicial review.

The final orders of the court were that the application for judicial review, in relation to the decisions made by the Minister on 4 August 1986, was dismissed. This included the decision not to grant the applicants further temporary entry permits, permanent residence, and the deportation order. The court did not find any merit in the applicants' claims of improper exercise of power or failure to consider individual circumstances.

Orders

Orders of the court

The application, in so far as it relates to

A. the decision of the respondent, made 4 August 1986 pursuant to sub-s.6(2) of the Migration Act 1958, that the first applicant and the fourth applicant not be granted further temporary entry permits;

B. the decision of the respondent, made 4 August 1986 pursuant to paras.6A(1)(b) and (e) of the Act, that the first applicant and the fourth applicant not be granted permanent residence;

C. the decision of the respondent, made 4 August 1986 pursuant to s.18 of the Act, that the first applicant and the fourth applicant be deported to West Germany

is dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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