Heshmati v Minister for Immigration, Local Government & Ethnic Affairs

[1990] FCA 712

NO^ m)/e ~ ,STR /gun&

JUDGMENT No. .. 1 .k. , L ? . /

IN THE FEDERAL COURT OF AUSTRALIA )

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VICTORIA DISTRICT REGISTRY	1	No VG 352 of 1990
1
GENERAL DIVISION	1

BETWEEN: JAFAR HESHMATI

(Applicant)

m:  THE MINISTER FOR IMMIGRATION,
LOCAL GOVERNMENT AND ETHNIC
AFFAIRS

Coram:  Ryan J.

RECEIVED

Date :	6 December 1990	10 DEC 1990
Place:	Melbourne	FQERAL COURT OF

PRlNClPAL REGISTRY

REASONS FOR JUDGMENT

By notice of motion dated 3 December 1990 the applicant seeks first an order that:

"all proceedings to remove the Applicant from Australia be stayed pending hearlna and determination of an a ~ ~ e a l from the iudament - <

of the- on our able Mr. Justlce Lockhart gi;&	at Melbourne on the
22nd of November 1990;"

The order made by Lockhart J. on that date was that the application of the applicant for review pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") be dismissed. The five decisions of the respondent which Lockhart J. was invited, by the applicant's amended application, to review were:

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"A. Decisions of the Respondent to be reviewed:

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1.	That the Aaulicant not be qranted an entry ~ermit.	:.
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2.	That the A ~ ~ l i c a n t	be deemed not to have entered	i
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Australia and therefore is not sublect to Section 6A

of the Miaratlon Act.	1
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3.     That the Applicant not be granted a temporary entry permit on compassionate and humanitarian grounds,

4.     That the Applicant not be granted permanent residence rn Australia on compassronate and humanitarian grounds.

5.     That the Avplicant was not a refuaee and/or that there were no strong grounds for the grant of a permanent entry permit to the ApplrCant notwithstanding that he is a kefugee withrn -the meaning of the convention relatrng to the status of refugees that was done at Geneva on the 28th of July 1981 or that the protocol relatrng to the status of refugees that was done at New York on the 31st of January 1967."

It will be seen that none of those decisions was that the applicant be deported or removed from Australia but the affidavit by the applicant's solicitors in support of the motion discloses that :

"4. At the time of Mr. Justace Lockhart making his orders in relation to the Applacation to Revrew His Honour stayed the operation of his decision untal the 30th of November 1990 to allow the Applicant time to consider whether or not he would appeal and the Respondents were prevented from removing the Applicant from Australra untal 4.00 p.m. on the 30th of November 1990. Subsequently after dascussions with the Respondent's solrcators they agreed not to seek to remove the Applrcant from Australia prior to 4.00 p.m. on Thursday the 6th of December 1990 but otherwise they indrcated it would be necessary to obtarn an order of the Court further staying any attempts to remove the Applicant from Australia.

5.    I belreve that it is the Respondent's intention to remove the Applicant from Australia as soon as possible after the 6th day of December 1990 and unless a stay is granted to the

Applicant may well face drre consequences were he to be the Applicant will be removed from Australra. Given that the Applicant to enable him to prosecute his appeal I believe removed from Australra and returned to Iran and given that thrs appeal centres around the question of whether or not, anter alia, the Applacant rs a refugee I believe at would be approprrate for a stay to be granted."

Despite the form of the notice of motion it is clear that what the applicant seeks, in essence, is an injunction restraining the respondent, pending the hearing and determination of the appeal from Lockhart J., from deporting him or removing him from Australia. I shall accordingly deal with the motion as if it were framed in that way.

In Wilson v Church [No. 21 12 Ch. D. 454 Cotton L. J. stated it as his opinion "that when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful is not nugatory". In a related action, Wilson v Church 11 Ch. D. 576 the Court of Appeal granted an injunction to restrain trustees from parting with any part of the trust fund till the hearing of the appeal. Of that order, Cotton L.J. said in Wilson v Church [No. 2 1 at 459:

"That possibly was rather novel, but it was right, in my opinion, to make that order to prevent the appeal, if successful, from being nugatory. Acting on the same nrinciple, I am of opinron that we ought to take care that if the House of Lords should reverse our decasron (and we must recognise that it may be reversed), the appeal ought not to be rendered nugatory. I am of opinion that we ought not to allow this fund to be parted wath by the trustees, for this reason: it as to be distrrbuted among a great number of persons, and it rs obvious that there would be very great drffrculty in gettrng back the money parted with if the House of Lords should be of opinion that at ought not to be divrded amongst the bondholders. They are not actual partres to the suit; they are very numerous, and they are persons whom it would be difficult to reach for the purpose of getting back the fund.

If there had been any case made by the Plarntiff that this appeal was not bona fide, that it was for some indirect purpose and not

right, the case would have stood rn a drfferent position, but	for the purpose of trying whether the judgment of this Court was
there is no affidavit or tangible fact upon which, in my opinion, we can rely for the purpose of arriving at the conclusion that such rs the fact. I deal with it as being presented in the right of the Defendants, and bona fide presented for the purpose of trying this questron whether the judgment of this Court as or is not rrght. But then, of course, in staying the payment out of this money, we must put the Appellants on terms that they shall have the question, so far as in them lies, decided at the earliest possible opportunrty by the House of Lords, and they must pay the costs of this applacataon."
In Orion Pro~ertv Trust Ltd v Du Cone Court Ltd [l9621 1

W.L.R. 1085 Pennycuick J. approved that passage from the judgment of Cotton L.J. and another from the judgment of his Lordship in Polini v Grav (1879) 12 Ch. D. 438 in these terms:

"The only ques t ion w e have t o consrder is, whether o r no t h e Court has j u r i s d i c t i o n i n a proper case t o s t a y a l l dea l inge with a fund pending an appeal t o t h e House of Lords al though t h e Court has decided a g a i n s t t h e t ~ t l e of t h e P l a i n t i f f and dismissed t h e

actron. I s e e no d ~ f f e r e n c e i n p r i n c i p l e between s t ay ing t h e

d i s t r a b u t i o n of a fund t o which t h e Court has held %he P l a i n t i f f

not t o be e n t i t l e d , and s t a y ~ n g t h e execution of an ozder by which

t h e Court has decided t h a t a P l a ~ n t i f f is e n t i t l e d t o a fund. In

t h a t case, a s i n t h i s case, t h e Court, pending an appeal t o t h e

House of Lords, suspends what it has declared t o be t h e r i g h t of

one of t h e l i t i g a n t p a r t i e s . On what p r i n c i p l e does it do so? It

does s o on t h i s ground, t h a t when t h e r e is an appeal about t o be

prosecuted t h e l r t r g a t i o n is t o be considered a s nor. a t an end,

and t h a t being so, i f t h e r e rs a reasonable ground of appeal, and

i f not making t h e o rde r t o s t a y t h e execution of t h e decree o r t h e

d i s t r i b u t i o n of t h e fund would make t h e appeal nugatory, t h a t i s

t o say, would depr ive t h e Appellant, rf success fu l , of t h e r e s u l t s

of t h e appeal, t hen it is t h e duty of t h e Court t o i n t e r f e r e and

suspend t h e r i g h t of t h e pa r ty who, so f a r a s t h e l i t i g a t r o n has

gone, has established h r s r igh t s . That a p p l i e s , i n my opinion

j u s t as much t o t h e case where t h e ac t ron has been disrnrssed, a s

t o t h e c a s e where a decree has been made e s t a b l i s h i n g t h e

P l a r n t i f f ' s t i t le .

I th ink , the re fo re , t h a t t h e r e is j u r r s d i c t i o n t o do what w e a r e

asked t o do.	This ju r i sd ic t ron	ought,	no doubt,	t o be very
c a r e f u l l y exerc ised ,	and	so a s not	t o encourage	any one t o present

an appeal f o r t h e mere purposes of delay. I t r e needless t o repeat

what t h e Master of t h e Rolls has sa id , t h a t t h e f a c t of t h e

Appellants having f a i l e d twice must be taken i n t o account."

The approach taken by Pennycuick J. in the Orion Case has been approved by Megarry J. in Erinford Properties Ltd v Cheshire Countv Council [l9741 1 Ch. 261 at 268.

In a context similar to the present, Neaves J. in Karunakaran v The Minister for Immiaration and Ethnic Affairs (unreported 20 November 1984) ruled that the applicant was not entitled to a stay of a decision to deport him because he had not satisfied the Court "that there are real prospects that the appeal will succeed". However in Tuncak v Younq (unreported 24 October 1987) French J., on an application for a stay of an order which he himself pronounced at first instance, concluded:

"In the present case the balance of convenience is overwhelmingly in favour of the applicant. Although I came to the v i e w that the decrsion to remove ham from Australra was not able to be impugned for error of law or procedure, it was nevertheless a decision harsh in its impact upon h m and his family.

The right of appeal to the Full Court would, for practical purposes, be rendered nugatory if a stay were not to be granted.

In all the circumstances I am prepared to make a stay order for sufficient tame to enable the applicant to go before a Full Court to determine whether it should be extended to the hearing and determinatron of hls appeal."

In the present case the appellant has raised by his notice of appeal questions going to the proper construction of sections of the Miaration Act 1958 as in force before 19 December 1989 and to the application of the concept of a refugee sur place to s.CA(1) (c) of that Act. There is evidence that two Counsel experienced in the field have advised that grounds of appeal raising those questions are arguable. I am not able, at least without the benefit of full argument, which I have not been afforded, to contradict that view.

Accordingly, I consider that, consistently with the

principles which I have extracted from the authorities, I should

make an order which has the effect of preventing the applicant's	right of appeal from being rendered nugatory unless
considerations of convenience or other discretionary factors tend in favour of allowing his earlier deportation. It is not disputed that the applicant would be denied the real benefit of a successful appeal if he were repatriated to Iran before his appeal had been determined.
My inquiries reveal that the appeal can be fixed for hearing in Melbourne on 7 March 1991. I therefore do not regard the preponderance of convenience as being in favour of allowing the earlier deportation of the applicant. I have also been influenced to grant the injunction, which I infer is sought, by the fact that Lockhart J., when he pronounced his Order of 22 November 1990, stayed the operation of his decision until 30 November 1990 to allow the applicant time to consider whether to appeal.
Accordingly, I propose to order that the respondent be restrained, pending the hearing and determination of the appeal, from removing the applicant from Australia. I shall also order that the applicant and the respondent take all steps necessary to enable the hearing of the appeal to commence in Melbourne on 7 March 1991. The costs of both parties of and incidental to the motion on notice dated 3 December 1990 shall be costs in the appeal.

I certify that this and the preceding

five (5) pages are a true copy of the Reasons for Judgment of His Honour Mr

Justice Ryan .

Associate:

Date: 6 9-4 l990

Counsel for Applicant:	Mr P.N. Rose
Solicitors for Applicant:	Erskine H. Rodan

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Counsel for Respondent:

Solicitors for Respondent:	MT R. Huttner
Date of Hearing:	3 December 1990
Date of Judgment:	6 December 1990