Etuate Makaafi Li v Minister for Immigration & Ethnic Affairs

[1993] FCA 417

JUDGMENT No. ...&........ .. '7 1'993 ..,, H,,,H.

IN THE FEDER&L COURT OF AUSTRALIA ) \ No. NG 346 of 1993

GENERAL DIVISION	-
.

BETWEEN:	ETUATE MAKAAFI L1 Applicant
AND :	M I N I S T E R  F 0 R
IMMIGRATION &  ETHNIC
AFFAIRS Respondent

C O W :	WILCOX J
PLACE :	SYDNEY
DATE :	9 JUNE 1993

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: Application before the court was filed on 4 June 1993. It seeks review of the decision of a delegate of the respondent Minister for Immigration & Ethnic Affairs that the applicant be deported.

It appears that the applicant entered Australia on 3 November 1990 under a temporary entry permit which was valid for six months. This permit expired in May 1991, but he did not leave Australia. Apparently the applicant obtained employment at some stage. On 4 November 1991 he was injured at work. The injuries turned out to be serious. The applicant is apparently left with a loss of power in the left hand. A workers compensation claim was made. It reached the situation of being listed for hearing on 20 May 1993 in the

Compensation Court at Parramatta.

In the meantime, the applicant applied for a permanent entry permit. This was considered by a delegate of

the Minister, and refused, on 30 April 1993. On the same day *

a letter was sent to the applicant at his home at Blackett, informing him of the decision and enclosing a copy of the reasons for decision. This letter ended with the following paragraph:

"Your file has now been transferred to the compliance section of this office. If you believe circumstances exist which prevent you from making immediate departure arrangements (should you not be seeking a review), you should call to discuss your situation with officers of the compliance section of this office. These officers can be contacted on telephone number 893 4720."

M r Li was already in custody on 30 April, but I am

told by b l r Allatt, who appears on behalf of the respondent,

that a copy of the decision was sent by facsimile transmission

to the Villawood Detention Centre where he was being kept.

So far as the evidence indicates, Mr Li took no action, pursuant to this invitation or otherwise, to contact the Department, or to see!< to delay his departure from Australia in order to accommodate the pending compensation claim hearing.

At about that same time a letter was sent to his

home by Lhe solicitors acting in the compensation matter, informing him of the projected hearing date, 20 May, and requesting his attendance at court on that day. For reasons which are not explained in the evidence, the solicitors were not informed that he was being kept in custody. Had they been informed, and had they made a request to the Department to take him to court on that day, I have no doubt that the request would have been acceded to. However, the solicitors were not informed. When Mr Li did not attend the Compensation Court on 20 May, the hearing had to be adjourned. The position now is that further medical examinations are required, apparently on behalf of the respondent and by the applicant's solicitors themselves, before the matter is heard. As the Compensation Court will be in recess for a period of four weeks in July, it seems that there is no possibility of a hearing untll the first fortnight in August.

The solicitor having the carriage of the matter in

the Compensation Court, M r Tony Barakat, has said in an

problem about obtaining an order for expedition.	to be able to be heard in this period. There is no perceived affidavit that, if expedition is granted, the matter is likely
The applicant has a wife and five children residing in Australia, as well as three other children who reside in his native Tonga. Apparently Mrs Li is entitled to reside indefinitely in Australia, because she is a New Zealand citizen. The same applles to the five children who are here. I gather that it is not presently intended that she will leave Australia and return to Tonga if her husband is deported. - Whether or not this situation will be maintained in the long term, I do not know.
It is difficult to resist the conclusion that a major cause of the dilemma facing the parties and the Court results from the failure of M r Li, and those acting on his behalf in connection with the migration matter, to ensure adequate communication with the Department. It would have been a simple matter for Mr Li to respond to the letter of 30 April by informing the Department of the imminent workers' compensation hearing, even though he may not have known the exact date; or at least to ensure that Mr Barakat communicated with the Department, so as to inform the relevant officers of the position, and to arrange for his attendance at court.
Li seems to have done nothing along these lines; perhaps because he was relying on other people who did not know the position or who did not follow through as required.
In any event, the position is that the opportunity for a hearing has been missed. It is not possible for W! Li to lay the blame for this at the door of the Department. The deportation order was made on 25 May. The Application challenges the legal validity of the deportation order. It is important to note that there is no challenge to the validity of the decision to refuse the application for a permanent entry permit.

The basis of the application for review is that the Minister failed-to give sufficient weight to the consequences of refusing to extend the applicant's stay in Australia, in view of his injuries in a work-related accident; that he failed to consider the expense to public funds of refusing to extend the applicant's stay until finalisation of his' compensation case; and that he failed to consider the expense to public funds, if the applicant is deported, because his payments of workers compensation will be terminated; thereby allowing his wife and five dependent children to receive benefits from the Department of Social Security.

I should perhaps say, in regard to these grounds, that the first matter, which complains of insufficient weight, is not a ground available under the Administrative Decisions Judicial Review Act 1977; weight is a matter for the decislon maker. Perhaps the ground could be re-formulated, in an appropriate case, to say that the Minister failed to take into account the consequences of refusing to extend the applicant's

matter is really intended to be put. For the purposes of this	stay in Australia. This seems to be the way in which the
interlocutory application, I think that I ought to read the ground in that way.
In relation to the expense on public funds, this is put, firstly, on the basis that, if the applicant is deported, the Compensatlon Court will travel to Tonga to take his evidence. Although this might seem remarkable, my understanding of the position is that the Compensation Court frequently sits outside New South Wales and, indeed, outside - Australia; so it is likely that this course would be followed. What would happen in regard to the outstanding medical examinations, I do not know; although I suppose it might be possible for these to be arranged as a matter of extreme urgency if deportation is imminent. However, if the court does go to Tonga specially for this case, it is obvious that considerable expenditure will be involved; some of this necessarily will fall upon the public purse.
In relation to the other matter, namely the Department of Social Security expenditure, there is really no evidence before me to indicate the situation in that regard; nor, I might add, is there evidence that that matter was drawn to the attention of the Department.
The principal question is whether there is a serious question that the Department failed to take into account a
upon the entitlement of 141 Li to pursue his compensation relevant matter, namely the effect of immediate deportation
claim.

In fairness to 1,- Li, I should say immediately that

the evidence indicates that he did, indeed, suffer an accident
at work during which he sustained a serious injury.

The difficulty I have is that the evidence of this consideration being placed before the Department is somewhat scanty. It may be that, at a trial, a Judge will think that the position was so inadequately placed before the Department that it could not be said that the decision maker erred in law in failing to take it into account, and giving it such weight as was appropriate. I should indicate the nature of the evidence, as it is at the present time.

The first item appears in the reasons for decision in relation to the permanent entry permit. In part 7 of that document, under the heading "claims of applicant", a reference is made to the medical condition of the applicant's wife. There is then a reference to the applicant's own condition, in these words:

" I t i s s t a t e d	t h a t	he	h i m s e l f	i s s u f f e r i n g from
s e v e r e	i n j u r y	t o	h i s	. . . . . . . . . .

t rea tment and	t h a t i t i s a workers compensation
c a s e . "

This extract does not indicate any precise knowledge of the situation in regard to the workers compensation case. However, it may be said on behalf of the applicant, and no doubt would be so argued at the trial, that the extract does demonstrate that the Department was aware that the injury was a severe one; and of its consequences; loss of sensation and extreme weakness in the left hand. Injuries so described are injuries in relation to which a claim ought to be pursued, if there is any legal basls for the claim. In other words, we are not dealing with a trivial injury.

The s6cond item of evidence appears in a letter, which is undated but was received by the Department on 14 April 1993, shortly after the applicant was taken into custody. It was written by a migration agent on his behalf. The purpose of the letter was to seek a release of the applicant from custody. Reasons were set out. Reason number three was framed in this way:

"l& Li is currently involved in a compensation

matter regarding . . . . . . . . . .

hospitalisation on 10 ?!fay 1993 as per letter

attached. "

So far as counsel have been able to ascertain, the file does not contain the attached letter. This is unfortunate; but the letter which is in evidence shows that the Department was informed that the compensation matter was

current and that Mr Li was required to attend regular medical tests and hospitalisation, or perhaps one or other of those,	at an early specific date, namely 10 May.
As I have said, one would have hoped that this would have been followed through and more specific information given; and arrangements made to lnsure that his retention in custody did not interfere with what was required. But it is at least arguable that, having regard to this letter, the departmental officers who had to consider the flle were on notice that there was an ongoing requirement for medical attention in connection with the compensation claim. They were already awke that the compensation claim related to a serious injury.
At this stage, it is not necessary for me to form any view as to whether the grounds of review, or any of them, would be successful. There are obviously difficulties about the claim, because of the lack of specificity in the information put before the Department; but I have reached the conclusion that it cannot be said that the application is wholly without merit or that there is no serious basis for the applicant's claim that the decision maker failed to take into account a relevant matter. Once that is established, it is appropriate for the Court to intervene to restrain the deportation of the applicant for the moment.
I put the matter in this way because considerations of convenience are all one way. It is obviously undesirable
examinations required for the prosecution of his case. It is for the applicant to be unable to attend the necessary medical
obviously against the interests of all concerned for the Compensation Court to have to travel to Tonga to take his evidence. On the other side, there is no specific prejudice to the Minister, or to the Department, if >Pc Li's departure from Australia is postponed for a period of about two months.
In saying that, I do not minimise the importance of
enforcement of the Miqration Act. I appreciate that the
Department has a difficult and invidious task where people
come to Australia on a temporary entry permit, overstay the

*

permit, become illegal entrants and then fail in an application for permanent residence. It is no more than the duty of the Department to take steps to ensure that the Act is complied with, and there is certainly a public interest in that being done. On the other hand, those general considerations sometimes have to give way to matters specific to a particular person and which point in favour of some delay in deportation.

There is no suggestion in this case that Mr Li's

retention in Australia will cause any particular problem to the Department or to the Australian community. Whether or not he should stay in custody during a period of two months is another question. It may well be thought that this could be obviated, given the fact that he has a wife and five children here. I would have thought that there was little risk of his failing to report as required, particularly as it is in his

workers compensation case. However, I am not called upon to	own interest to ensure that he completes the hearing of the
decide that matter at this stage. All that I am asked to do, is to consider whether or not an interlocutory order should be made restraining deportation. I have reached the view that such an order should be made. But I make clear to M r Li, and to those acting on hls behalf, that this order is intended, in relation to matters of convenience, merely to give him the opportunity of having his compensation case heard in Australia, providing that he acts with every possible dispatch in ensuring that that is done. In other words, I expect that his solicitors would make all necessary arrangements to obtain an expedition order from the Compensation Court, and a hearing date during the first two weeks of August. I also expect that they will arrange for all necessary medical examinations to take place in tune to ensure that the hearing will proceed without difficulty, and that they will liaise with the officers of the Department of Immigration and Ethnic Affairs to ensure that Mr Li is able to attend the medical examinations and the court. The onus is very much on M r Li, and those acting on his behalf, to ensure that there is no future slip-up in arrangements.
The course I propose to take is to extend the order made last week by Beazley J until further order; but to bring the matter back for mention in the second week in August. If, as I anticipate, M r Li's evidence has been taken in the Compensation Court by that date, there will be no reason for further extending the order. If the evidence has not been
result which has occurred despite the best endeavours of Mr Li taken, then unless it can be demonstrated to me that this is a
and all those acting on his behalf, I would not be disposed to further extend the stay of deportation.
However, against the possibility - which I think is a faint one - that the hearing has not been able to proceed despite the best endeavours of the applicant and his advisers, I will not today make an order tinally specifying the period of restraint. I emphasise, however, that the onus will be on the applicant to demonstrate that there should be a further extension. I do not think that the Department should be put in the position of the deportation order being indefinitely stayed while the case is allowed to drag on..

The order that I make is to amend the order made on

2 June 1993 by Beazley J so as to delete the words "up to and

including Wednesday, 9 June 1993" and to substitute the words

"until further order".

I propose to stand the matter over to 9.30 on Friday

13 August.

I certify that this and the preceding eleven (11) pages

are a true copy of the Reasons for Judgment

of the

Associate:

Dated:  9 June 1993

APPEARANCES

Counsel for the Applicant:	S Diamond
Solicitors for the Applicant:	Keddies
Counsel for the Respondent:	M Allatt
Solicitors for the Respondent:	Australian Government Solicitor
Dates of hearing:	9 June 1993