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Faingold v Zammit

Faingold v Zammit

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Case Copied 20 January 1984 18 min read

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Re: ALEKSANDER FAINGOLD, ESPIRA FAINGOLD AND PAVEL FAINGOLD
And: WALTER ZAMMIT AND THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. 279 of 1983
Immigration
1 FCR 87

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Lockhart(1) and Sheppard(1) JJ.

CATCHWORDS

Immigration - appellants entered Australia at proclaimed airport without passports or entry permits - appellants refused entry permits and detained pending execution by airline of requirement that they be taken out of Australia - stay refused by single judge - test to be applied in determining whether stay should be granted - whether authorised officer could reasonably have formed belief that appellants were seeking to enter Australia in circumstances in which they would become prohibited immigrants - whether appellants entitled to natural justice - whether authorised officer failed to take into account relevant considerations - Migration Act 1958, ss.6 and 36A; Administrative Decisions (Judicial Review Act) 1977, s.5

Immigration - Appellants entered Australia without passports or entry permits - Appellants refused entry permits and detained pending removal from Australia - Whether authorised officer could reasonably have formed belief that appellants were seeking to enter Australia in circumstances in which they would become prohibited immigrants - Administrative law - Review of decision of authorised officer and Minister - Stay refused by single judge - Test to be applied in determining whether stay should be granted - Whether authorised officer failed to take into account relevant considerations - Natural Justice - Whether respondents required to give reasons - Migration Act 1958 (Cth), ss 5, 6 and 36A - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 13 and 15.

HEADNOTE

The appellants arrived at Melbourne Airport from Greece without passports or documents authorising their entry into Australia. Prior to their arrival in Australia, the appellants had sought permission to reside in Australia, which permission had been refused. On their arrival on 9 December 1983 the first respondent, an immigration officer, stated that the appellants would be kept in a detention centre and then sent out of Australia.

Section 6(1) of the Migration Act 1958 (Cth) provides that "an immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant". The immigration officer in apprehending the appellants acted in purported pursuance of s. 36A (2) of the Migration Act 1958 (Cth) which empowered him to do so where he reasonably believed each of the appellants to be a "person . . . seeking to enter Australia in circumstances in which he would become a prohibited immigrant". The appellants sought, pursuant to the Administrative Decisions (Judicial Review) Act 1977, to review the original decision to refuse the appellants' application for permission to enter Australia; the decision not to grant the appellants entry permits, whether temporary or otherwise; and the decision that the appellants be held in custody and then removed from Australia. On 13 December, 1983 a single judge, whilst not dealing with the substantive application, refused to…

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.

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Details

Case: [1984] FCA 1
Decision Date: 20 JANUARY 1984

CaseChat Overview and Summary

The appeal involved Faingold and Zammit, who were denied entry to Australia at a proclaimed airport due to the absence of passports or entry permits. They were detained and faced deportation, pending the airline's execution of the requirement to remove them from the country. The applicants sought a stay of the deportation order, which was denied by a single judge. The applicants then appealed to the court, which had to determine the applicable legal test for granting a stay, whether the authorised officer could reasonably have believed the applicants were seeking to enter Australia under circumstances that would make them prohibited immigrants, and whether the applicants were entitled to natural justice. Additionally, the court had to consider whether the authorised officer failed to take into account relevant considerations.

The court found that the applicants did not satisfy the test for a stay of deportation as they did not present a serious question to be tried. The court emphasised that the question of whether the applicants would become prohibited immigrants was a matter for the immigration officer, and the court would not substitute its judgment for that of the officer. The court also found that the applicants were not entitled to natural justice as they did not have a legitimate expectation of being granted a visa. Furthermore, the court found that the authorised officer had taken into account all relevant considerations in making the decision.

The court dismissed the appeal and the notice of motion, and ordered that the appellants pay the costs of the appeal and the notice of motion. The court held that the appellants had not demonstrated that they would succeed in their application for a stay of deportation or that the decision-maker had failed to take into account relevant considerations. The court also found that the appellants were not entitled to natural justice as they did not have a legitimate expectation of being granted a visa. The court's decision emphasised the importance of the immigration officer's role in determining whether an applicant would become a prohibited immigrant and the limited role of the court in reviewing such decisions.

Orders

Orders of the court

1. The appeal and the notice of motion be dismissed.

2. The appellants pay the costs of the appeal and the notice of motion.

Orders accordingly.

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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