Farrelly, J.M. v Department of Immigration, Local Government and Ethnic Affairs

[1990] FCA 731

JUDGMENT NO. ... ........ ... ....- ..- 731 1 % ,UL/FC)

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	NG 664 of 1990

1

GENERAL DIVISION 1

BETWEEN:  JOHN MARTIN FARRELLY

Applicant

AND:  DEPARTMENT OF IMMIGRATION, LOCAL
GOVERNNENT AND ETHNIC AFFAIRS

Respondent

CORAM: Burchett J.

PLACE: Sydney

DATE : 23 November 1990	RECEIVED
FEDERAL COURT OF

EX TEMF'ORE REASONS FOR JUDGMENT AUSTRALIA PRINCIPAL

BURCHETT J.:

In this case I am asked to stay the execution of a deportation order pending the hearing of an appeal which has been filed in respect of a decision of a Deputy President of the Administrative Appeals Tribunal.

second offence, of course, made it considerably more serious.

The applicant is a New Zealand citizen who incurred a liability to be deported under s.55 of the Misration Act 1958. A deportation order was made by the minister. The liability to be deported arose from a conviction and sentence in respect of an offence of supplying a prohibited drug, namely, cannabis, for which he was sentenced to four years imprisonment. The offence was committed on 21 July 1986 and was his second offence of that kind. The fact that it was the

However, it should be borne in mind that the applicant was born on 17 April 1964, and the reasons of the learned Deputy President do not suggest that his conduct has been other than satisfactory since the offence in question. He has apparently obtained qualifications in a number of areas, including a diploma in Agriculture, and was working as a horticulturist and landscape gardener with an employer who gave him what were described by the Deputy President as excellent references. A number of other matters are detailed in the reasons, all of which appear to point to an absence of risk of recidivism, and the Deputy President summed them up by saying: "I consider the risk of recidivism as slight." The applicant did not attempt to deny his guilt, and claimed remorse.

The reasons of the Tribunal are notable for the lack of any express balancing of disadvantages to Australia, from this man remaining here, against any advantages to Australia that may be anticipated from his remaining, having regard to

various aspects of the evidence which are favourable to his	case. It seems to me that it must be said, without attempting
to form a view about the appeal which it is not my function to do at this stage, that it does have some reasonable prospect of success, on the basis that the wrong question has been asked.
The notice of appeal may, perhaps, require some tidying up, but it does make reference to a passage at the end of the reasons where the learned deputy president suggested that leaving Australia is not the end of life, and the applicant may apply to return in due course. This appears to suggest that the deputy president indeed regarded him as no risk to Australia, and his presence in Australia as not really undesirable. When it is read with the preceding sentence - which says: "While the law remains as it is, the applicant's offence appears to me sufficiently serious to warrant deporting him" - there appears, arguably, to be a suggestion that the reason for affirming the deportation order was a view as to what ought to happen to someone who had committed an offence of this seriousness, notwithstanding that the tribunal was contemplating that he might in due course be able to return to Australia. Such a comment could properly be included in reasons which made it clear that the right question had been considered and dealt with, but in the context of these particular reasons, it is arguable that the comment suggests the wrong question was asked and answered.
In those circumstances, and bearing in mind the difficulty which would be imposed upon the applicant in
meantime, I think a sufficient case has been made out, and conducting his appeal if he were to be deported in the
that the balance of convenience strongly supports staying the deportation order. I am influenced in reaching the conclusion that it is appropriate to stay the deportation order, on these grounds, also by the fact - which I think must go into the scales in respect of balance of convenience - that the

applicant, I am told, has been allowed to remain at liberty during the pendency of the proceedings in the Administrative Appeals Tribunal, and there is no suggestion that his continuing to remain in Australia, and at liberty, would pose any particular threat.

Accordingly I order that, until further order, the deportation order be stayed, and not be carried out. I give liberty to apply without notice, if necessary, should any problem arise with respect to the conditions upon which the applicant is at liberty. I will list the matter for further directions at 9.30 am on Monday, 3 December.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour M r

, - I

Dated: 23 November 1990 , .