Donnelly, A v Minister for Immigration Local Government and Ethnic Affairs

Re: ANGILLA DONNELLY
And: MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. N G100 of 1989
FED No. 559
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - Migration Act 1958 - Application for review of deportation order - Whether there is sufficient evidence to validly challenge the operation of the order.

Migration Act 1958: ss. 14(2), 20(2)(b)(ii), 60, 92.

HEARING

SYDNEY

#DATE 21:8:1990

Counsel for the Applicant : J.R. Young

Solicitors for the Applicant : Newman and Associates

Counsel for the Respondent : Miss Henderson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

1. The application be dismissed.

2. The applicant pay the costs of the respondent of the proceedings.

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

JUDGE1

This morning I gave leave as a matter of urgency to the applicant Angilla Donnelly to file in court returnable at 2.30 pm today an application seeking to challenge the validity of a deportation order made by the respondent's delegate, on 16 August 1990, that she be deported from Australia.

An order is also sought in the application, that pending further order the applicant be released from custody. Certain other orders are sought to which I need not refer.
The evidence in the matter is very sparse although I am conscious of the fact that it has come on for hearing at a very short notice, at the request of the applicant.
The evidence consists of the affidavit of the applicant's solicitor and a copy of the deportation order itself.
Doing the best I can from the evidence and from what has been agreed between counsel are the facts, the applicant first entered Australia on a temporary entry permit, and she later entered into a form of marriage with a Mr S R Donnelly in May or June of 1988.
The applicant then applied to the Department of Immigration for resident status, doubtless based in part upon the fact that she had married Mr Donnelly, whom I assume for the present purposes, is an Australian resident and citizen, thus improving her prospects of success on her application for resident status.
The evidence indicates that some time thereafter the applicant attended offices of the respondent on 9 August this year, and after an interview with various officers of the department she signed a statement and was thereupon detained and has since been detained in custody at the Villawood Detention Centre.
She was brought to the local court at Fairfield on 10 August and was represented by her solicitor who represents her and instructs counsel in the present proceeding. The respondent, over the objection of the applicant solicitor, tendered two unsworn statements, one from Mr Donnelly and another from a friend of his. The presiding magistrate then made an order apparently purporting to be in pursuance of s. 92 of the Migration Act 1958, which is an order authorising the detention of the applicant in custody for a limited period, being that specified in the section.
Thereafter there had been some discussions between the applicant and the respondent and letters had been exchanged in which the applicant has agreed to leave this country voluntarily. The respondent is not content with that course and seeks to execute the deportation order, perhaps because of the additional barriers of time presented to persons who have been deported before they can re-enter Australia. But as to that I know nothing, save what I have been told briefly from the bar table, and it does not enter into the decision in this matter.
It seems to me that the evidence that I have about what happened before the magistrate on 10 August is irrelevant to this case. Certainly what the magistrate does under s. 92 is relevant to the arrest of an illegal entrant and to the custody of that person. But the case of the applicant before the court today is to challenge the validity of the deportation order of 16 August 1990.
That order recites that the applicant was granted an entry permit on 14 December 1989 authorising her to remain in Australia, and that she is an illegal entrant by virtue of s. 14(2) of the Migration Act, in that, in respect of the grant of that entry permit, she produced to an officer exercising powers or performing functions under the Act, a statement that was false or misleading in a material particular, and she is not the holder of a properly endorsed valid entry permit of the kind referred to in that subsection.
The delegate then purported to order the deportation of the applicant pursuant to s. 60 of the Migration Act. The order is supported on the basis that the applicant is a person to whom section 20(2)(b)(ii) applies, namely, a person who is a non-citizen and who having entered Australia made to an officer or a person exercising powers or performing functions under the Migration Act, a statement that was false or misleading in a material particular - which seems to be her statement in relation to marriage which the Minister asserts is an arranged marriage to frustrate the operation of the Migration Act.
The Minister then says that because the applicant is a person to whom that statutory provision applies, s. 14(2) of the Migration Act then applies, so that the person becomes an illegal entrant, and that hence the applicant is an illegal entrant, and therefore a person liable to be deported by the Minister.
Whether the applicant has made a false statement about her marriage and whether that is a statement that could be one that falls within the ambit of section 20(2)(b)(ii), is not a matter on which I have any evidence of any probative value at all. There is no evidence suggesting that the applicant did marry Mr Donnelly nor has she sought to lead any evidence herself, although she is in court. There simply is no material before me whatever, which in my view, would entitle me to make any finding even on the most limited prima facie basis, that there is a case which may validly challenge the operation of a deportation order.
There may be material which could lead to a finding that there is an arguable case that the magistrate did not properly exercise his powers under s. 92. I say nothing about that, but it seems to me as I said to be irrelevant to this case, and the right of the Minister to detain the applicant in the present circumstances does not seem to me to arise from section 92, apart from her status as a deportee, in the sense of a person against whom the order for deportation is enforced.
The application must fail. I have been asked to not dismiss the application but send it over so that any further instructions can be given to counsel, in the case the case is to be differently structured, but I do not think that would be a proper exercise of judicial power in these circumstances, particularly in a case of this nature.
If the applicant does gather material which enables her to challenge what appears to be the departmental view that the applicant made false statements about her marriage, which has vitiated her resident status here, then she can produce such a case and lead the appropriate evidence. But I do not think I should allow this application to remain on file for that purpose, when there is no evidence to support it.
The application is dismissed.
The applicant must pay the costs of the respondent of the proceedings, and the Court so orders.

[1990] FCA 559

21 AUGUST 1990