Fardsavar, M. v Minister for Immigration & Ethnic Affairs

[1986] FCA 513

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I Administrative law - ludicial review - declsion by respondent to

deport applicant to Iran - whether a decision to which the Act

applies - application for stay of proceedlngs under respondent's

declslon until the hearinu of the application - alleqation that

the respondent failed to consider material relatinu to the likely

fate of the applicant upon his return to Iran	- whether a serious	!.
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question to be tried

Administrative Decisions (Judicial Review) Act	1977 ss.5, 15
Mlqration Act 1958 ss.18, 20, 21, 22, 39

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MAJID FARDSAVAR, HAMID FARDSAVAR and MOHAMMED	X I FARDSAVAR
V.

MINISTER FOR IMMIGRATION AM) ETHNIC AFFAIRS

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No. WA G107 of 1986

TOOHEY J.

PERTH

7 NOVEMBER 1986

IN TF!E FEDERAL C0,URT	i
OF AUSTRALIA	I
WESTERN AUSTRALIA	I No. WA G107 of 1986

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DISTRICT REGISTRY ) . . '

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GENERAL	DIVISION	1
B E T W E E N : MAJID FARDSAVAR, HAMID FARDSAVAR and
MOHAMMED X I FARDSAVAR

Applicants

and

MINISTER FOR IMMIGRATION	AND
ETJANIC AFJ?AIRS

Respondent

CORAM: TOOHEY J.

7 November 1986

REASONS FOR JUDGMENT

On 20 February 1986 the respondent ordered the

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deportation of the applicant Majid Fardsavar pursuant to s.18 of

the Misration Act 1958. Mr. Fardsavar sought a review of that

decision under the provisions of the Administrative Decisions

(Judicial Review) Act 1977. On 3 October 1986 Forster J.

dismissed that application.

Arrangements were then made by the respondent's

department give o ffect the o deportation order by

placing Mr. Fardsavar on a plane late on the niaht of

Monday, 3 November so that he might be flown to Bombay and, with a

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connecting flight, be returned to Iran, his country of origin. On

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the afternoon of	3 November I	heard. as a	matter of urgency. a	i .3
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motion on behalf of Mr. Fardsavar for a stay of the deportation

order and I granted a temporary restraint. In truth, what Mr.

Fardsavar was seekina was not a stay of the deportation order

(which itself was not the subiect of challenge) but an order under

5.15 of the Judlclal Review Act staying proceedings under the

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decision to deport him to Iran. Yesterday I heard further

argument in support of and against the continuance of a stay.

The decislon sought to be reviewed is expressed in the

application as a decision of the respondent that: L -

"Arrangements be made to give effect to the deportation

order dated the 20th February, 1986 by delivery of the

first named Applicant to the Islamic Republic of Iran

under escort and constant surveillance with physical

restraint includlng sedation, made on a date unknown to

the Applicants but between the 3rd and 31st days of

October, 1986 pursuant to sections 2 0 , 21A and 22 of

the Migration Act 1958".

No document was produced evidencing such a decision but

counsel for the respondent acknowledged that there had been such a

decision and that it had been made within the time frame mentioned

in the application.

Before considering the merits of the motion, I need to

be satisfied that there is a decision susceptible of review under

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the Judicial Review Act. The question to be answered is - was

there a decision of an administrative character made under an Act

passed by the parliament of the Commonwealth? I am satisfied that

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there was. Section 18 of the Hiaratlon Act empowers the Minister to order the deportation of a person who is a prohibited

non-citizen. Other sections e.u. ss.20. 21. 22 and 3 9 bear on the

clrcumstances of demrtation but it is for the respondent to

determme the way in which a deportation order under 5.18 is

carried out. Znatv v. Minister for Immiqration (1970-1972) 126

C.L.R. 1. The respondent (or those advising him) clearly aave

consideration to the place to which the respondent was	to	be	I ,:
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deported. The end product of that consideration was a decision

that he be deported to Iran, not to any other place. In my view

that was a decision of an administrative character within the

terms of the Judicial Review Act. See Letts v. Commonwealth of , ’

Australia (1985) 62 A.L.R. 517 at 518-519. ..I

Furthermore, the decision was made under the Misration

m. Even though 5.18 says no more than that the Minister may

order the deportation of a prohibited non-citizen, it is apparent

from the discussion in Znatv, particularly from the judgment of

Walsh J., that the power to determine the place to which a person	...
is to be deported is a power exercisable by the Minister in
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implementation of the Misration Act.

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I make one other comment on Znatv. It is true that the

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decision emphasises the discretion vested In the Minister to

determine the way in which a deportation order is to be carried

out. But the decision preceded the enactment of the Judicial

Review Act. Once the Minister makes a decision as to the way in

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whlch a deportatlon order 1 s to be carried out. that 1 s a decision

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i susceptible of review under the Judicial Review Act. Of course.

an applicant seeklna to review such a decision must make good one

of the arounds I n s . 5 of the Act.

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The question presently before the Court is whether

circumstances warrant a stay of proceedings under the respondent's

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I	decislon until the hearing of the application. In Its form,	as
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substituted by leave of the Court. Mr. Fardsavar's brothers have joined with him in the application. Nothing, I think, turns on

that for the purposes of the present motion.

There are occasions when a motion under 5.15 of the

Judicial Review Act comes before the Court as a matter of such

urgency that it is difficult to apply the recognised test of a

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serious question to be tried. See the cases referred to in

Azemoudeh v. Minister for Immisration (1985) 8 A.L.D. 281 at 289.

Mr. Fardsavar's legal advisers have certainly been under pressure

in obtaining material to place before the Court. So too has the

respondent. Affidavits on both sides were tendered during the

course of the hearing yesterday. But counsel for the applicant

did not suggest that the Court should not approach the matter by

reference to the conventional test and so I ask whether there is a

serious question to be tried. If there is, the balance of

convenience is overwhelmingly in favour of granting a stay.

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Indeed, to refuse a stay is effectively to deprive the applicant

of any opportunity to review the respondent's decision. ! ,:

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I am satisfled th .at there is a serious question to be

tried. I am conscious of the fact that this is an application

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under the Judlcial Revlew Act. The Court does not stand In the

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shoes of the respondent and consider what	it miuht have done had	._
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it been the decision maker. The role of the Court is to review

the legality of the decision within the framework of the Judicial

Review Act.

The grounds of review are that the respondent failed to

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take into account a relevant consideration that it was unsafe for

Mr. Fardsavar to return to Iran and that he did so in the face of

information to this effect from a range of persons and

organizations. It is aid that he respondent denied Mr.

Fardsavar natural justice in failing to convey to him information . .,

relied on by the respondent that it was safe for Mr. Fardsavar to

return to Iran, when such information was contrary to the

information furnished on behalf of Mr. Fardsavar and when he was

given no opportunity to refute that information. There is a

further ground that the decision was one that no reasonable person

could have made in the light of the material available pointing to

the dangers Mr. Fardsavar faced if returned to Iran.

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I emphasise again that the decision as to the manner of

Mr. Fardsavar's deportation must be one for the Minister. But I

i am satisfied from the terms of the application, verified as they

are to an extent by an affidavit sworn by Mr. Fardsavar's

solicitor to which is eithlblted a number of documents, that there

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i is a serious question ds to whether the respondent took into

account all the material made available to him and whether Mr.

Fardsavar was uiven an opportunlty to respond to such material as

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pointed to It beinu quite safe for him to return to Iran. There

1s also a question as to whether the respondent was under an

obligation, in the circumstances. to make further enquiries as to

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the applicant’s likely fate if he was deported to Iran.

l	Certalnly,	as	counsel	for	the	applicants	pointed	out,	there	is	a
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I self fulfilling aspect to this case. The more Mr. F’ardsavar airs

publicly his fears about his return to Iran, involving as it does

criticism of the Government of Iran and its judicial system, the

more unfavourably he is likely to be looked upon if he does

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return. But the system of law in this country includes provision

for the review of administrative decisions made under Acts of the

parliament of the Commonwealth. A person is entitled to take

advantage of that system even if, ln doing so, he may attract

unfavourable criticism in the country of his origin.

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Counsel for the respondent pointed out that, for some

months, Mr. Fardsavar and his advisers had known that deportation

would be to Iran unless arrangements could be made to receive him

elsewhere. That may well be so but it must be remembered that

until recently what was being challenged was the deportation order

itself.

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I am satisfied that. In all the circumstances of the

case, there should be a stay of the decision to deport Mr.

Fardsavar to Iran so as to ulve him an opportunity to present his

case to the Court. Mr. Fardsavar has been before the Court on a

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number of occaslons and there was a suggestion by counsel for the

respondent that he was doing little more than exploiting the

system m this country for the review of administrative decisions.

I make no comment on that suggestion. A stay of proceedings under

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the decision until further order will give the respondent an

I	opportunity to seek to discharge the stay if circumstances,	,.
Including delay on the part of Mr Fardsavar in prosecuting this

application, warrant it. _ .

There is one other matter on which I should comment.

Late in the hearing yesterday mention was made of a pr posal that

Mr. Fardsavar be deported to Spain. It seems that, in a general

way, the Spanish authorities have indicated a willingness to

accept him though no visa has yet issued nor has there been

confirmation of permanent residence for him in that country. It

may be that these administrative matters can be resolved over the I '

next day or two. Such a resolution would have important

implications for the stay that has been granted. But I have not

taken into account for the purpose of deciding whether there is a ..

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serious question to be tried or determinlng where the balance of

convenience lies, the possibility of Mr. Fardsavar's deportation

to Spain. That situation has not yet crystallized sufficiently.

I	I certify that this and the preceding
six pages are a true copy of the
reasons for judgment herein of hi
Honour Mr. Justice y. //L Tooh

Associate

Dated: 7 November 1986