Du, Y.K. v Minister for Local Government

[1988] FCA 723

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
) !.
NEW SOUTH WALES DISTRICT REGISTRY	) No. G 1396 of 1988
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GENERAL DIVISION	1

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BETWEEN:  KANG YI DU

Applicant

AND :  NINISTER FOR LOCAL

GOVERNNENT

Respondent

CORAM:  Davies J.

- DATE : 2 December 1988

PLACE : Sydney

REASONS FOR JUDGMENT

EX TEI4PORE

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These tend to be distressing cases but the law is

clear. An order staying a deportation cannot be made unless

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there is a serious case to be argued. It is not a sufficient

ground that the applicant is seeking reasons under the

Administratlve Decisions (Judicial Review) Act 1977 (Cth).

I have taken note of the polnts that 1-lr Goold has

raised. Mr Goold apparently has before him a copy of the

submission that went to the Minlster at the time when the

relevant decisions were made. Those	decisions were that a
temporary entry permit	be refused, that resident status be

refused,	that supervi	.sed voluntary	depa	t
that the	deportatlon	be ordered.

The positlon of the applicant 1 s that he came to

Australia in February 1987 pursuant to a student's vlsa.	He
received a permit to remain in Australla on the	condltion that
he undertake studies.

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There were extensions of the permit. The last permlt

explred on 30 September 1988. It appears that, in the

meantime, he had not been undertaklng studies for reasons that

I have not been advised about. It appears that the Department

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of Immigration and Ethnic Affairs had been advlsed by the	l
Overseas Students Office, which supervlses the study rn Australia of overseas students, that the applicant was no longer enrolled f o r any course.

It is not surprising that, at a time such as that,

deportation was considered. Apparently the applicant was

I	arrested, he then made an application for a temporary entry permit and resident status and also sought that, if resident status be refused, he be given the opportunity of supervised
voluntary departure. His interest in staying in Australia was
that he had formed a serious relatlonship wlth Cherise Anne
Koch.

Circumstances such as these are not entirely novel.

Earlier in the week I refused to grant an lnjunction In respect	I -
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of a case that had many similarities. One of the difficultles
in a matter such as this is that the problems which applicants
seek to overcome are problems which arise from policies adopted by the I-linister.

The policy of permitting a supervlsed voluntary

departure is a policy of the Minister's. It is	not a matter
dealt with by the Act or the regulations.	Furthermore, the

pollcy which the Department applles of not conslderlng an application for resident status by a person who has been

deported until five years after the date of	deportation is also
a matter which is entirely one	of policy and not one laid down
by the Act.	I

Clearly, the Mlnister has power to lay down p01 icies

and equally clearly it is proper that he ought to do so, so

that there be consistency in decision making and so that	people
coming to Australia know how their circumstances and applications will be dealt with.

It was not put by 13r Goold, who appears for the

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applicant, that there was any breach of the Minister's policles	; ,.
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in the present circumstances but he submitted that the decislon was, in the circumstances, a harsh decision and that there must have been a failure to properly consider the applicant's circumstances, particularly the hardship resultlng from
deportation and the five year rule.	Mr Goold referred to the
desirability from the applicant's point of	view that he be
given the opportunity of a supervised voluntary departure.	i ,

It was pointed out by Mr Goold that it was not

unreasonable for the applicant to want to have his application

considered and dealt with before he took up the option of

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supervised voluntary departure and that he	is now	willlng to
undertake that course.

I understand in general terms the case that IeIr Goold

puts and I see the force of it.	In thls case, as in a number
of other cases that come before the	court, one perceives what

might be described as a certain lack of compassion in the
submissions that have gone to the decision-maker and certaln

inflexibility of pollcy whlch In individual cases seems harsh.

Nevertheless, that does not lead to the concluslon

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I	that a decision such as was made in this case	was not a
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decision that a reasonable declsion-maker could have come to,

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or that there was any material factor which was not taken into i

account.	Nor does it seem to me to lead to the conclusion that
the decision-maker acted bllndly	in accordance with an

inflexible policy without giving attention to the particular

clrcumstances of the case.

A court can only interfere if there is what may be

described as an error of law. In cases such as the present, it seems to me it is for the I-linlster to determine what policies

he has, and for the Minister and the decrslon-makers to

determine with what flexibility such a policy will be applled,

so long as the decision-maker keeps in mind that the policy is

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not inflexible and that it 1 s only policy to be applied if the
circumstances are appropriate.

Now, In the present case, it does not seem to me that

It has been shown that the personal	circumstances of the
applicant were not taken Into account.	It does not seem to me
to have been shown	that the decislon-maker did not give

attention to the merits of the matter, as distinct from the
mere terms of the policy. When I say it does not seem to me to

have been shown, I have taken into account simply what has been

said to me by Mr Goold - and I recognlse that what he said is

not in itself evidence - nevertheless, I have taken account of

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what he has said wlth a view to ascertaining whether o r not

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there is an arguable case.	,
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It does not seem to me that what has been said to date I

shows an arguable case. For those reasons the application will	I . : ,
be dismissed wlth costs.
I certify that this and the preceding four ( 4 ) pages are a true copy of the Reasons for Judgment herein of His Honour	. .
1-lr Justice Davies.
Associate
Date:
Solicitor for the applicant:	Mr G.J. Goold
of Cameron Goold
Solicitor for the respondent:	I4r D. Godwin
of the Australian Government Solicitor
Date of hearing:	2 December 1988