Hussein, S. v Minister of State for Immigration Local Government and Ethnic Affairs

[1993] FCA 451

IN THE FEDERAL COURT OF AUSTRALIA )

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NEW SOUTH WALES DISTRICT REGISTRY ) NO NG 349 of 1993

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GENERAL DIVISION ) I

BETWEEN:	AZMAL HUSSEIN SHAMSUM HUSSEIN NEELOFAR SALMA HUSSEIN KHUSHNUMA NAHID HUSSEIN FARISHE HUSSEIN
Applicants
MINISTER OF STATE FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Respondent

HILL J SYDNEY

16 JUNE 1993 FEDERAL COURT OF

AUSTRALIA PRINCIPAL

REGISTRY

EX TEMPORE REASONS FOR JUDGMENT

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The first applicant, Mr Azmal Hussein, being one of the applicants for an application for an order of review before this Court, seeks a continuation of a stay of an order deporting him, which stay was initially granted by Beazley J on 2 June, 1993. I assume that the application for a

, .~

continuation of the stay is supported also by the other	.-
I
applicants being members of his family.
Mr Hussein was born on 9 October 1962 in Fiji. He arrived in Australia on 14 June 1987 and was, at least at that time, a citizen of Fiji. His wife, also an applicant, arrived in Sydney on 12 July 1987. They have three children, two of whom were apparently born in Australia. It is not suggested
that by reason of their birth in Australia those children have

Australian citizenship. If they have any citizenship at all presumably it is as citizens of Fiji. In December 1989 Mr Hussein made an application for refugee status. That application was decided adversely to him in September 1991 and was followed by a second application in that month.

An application for review of the decision was made on 10 January 1992 and was considered by the Refugee Status Review Committee in December 1992. Their view was that Mr Hussein was not a refugee, a view recorded in an assessment apparently sent to him and on which he commented in January

1993. In March 1993 a Mr Mills, a delegate of the Minister

for Immigration, Local Government and Ethnic Affairs, the respondent in these proceedings, formed the view that Mr Hussein was not a refugee within the meaning of the United Nations Convention and Protocol relating to refugees. A copy of Mr Mills' reasons for decision is before me in these proceedings.

That decision was communicated to Mr Hussein shortly after the decision was made rejecting his application for refugee status and at around the same time a decision was made that he be deported. It would seem that thereafter Mr Hussein consulted a large number of solicitors apparently without

obtaining any favourable advice, or if this were not so at

least without any action being taken on his behalf. His present solicitor was instructed on 12 May 1993. The matter commenced in this Court on 2 June 1993.

When the matter came before Beazley J, on an urgent basis, for the purpose of an order being sought to stay the deportation, I was told from the bar table that the matter which was put on behalf of Mr Hussein at that time in support of an arguable case being made out, was that the two children to whom reference has been made, who were born in Australia and whose citizenship status was unclear, had not been given consideration in the decision to deport Mr Hussein. Her Honour, in any event, ordered a stay of the deportation up until and including today. Orders were also made for the further disposition of the case including orders for the filing of an application for an order of review and for affidavits in support to be filed by 4 pm Friday 11 June 1993.

Apart from a formal affidavit concerning

correspondence filed by the solicitor, no affidavit in support

was filed together with a motion to extend the time for filing	has been filed. An application seeking an order for review
it. The application, which strictly of course should not have been accepted, it being out of time, alleges, through the particulars given (such as they are), that there has been an error by the decision-maker in deciding that the applicants were not refugees and in deciding that they did not have a well-founded fear of prosecution (sic).
When the matter came on for hearing this morning, I think it is fair to say that both parties had formed the view that the proceedings today were in the nature of a directions hearing. It is not clear to me that that was what her Honour intended, having regard to the fact the matter was set down at 10.15am. However, while I was not disposed to require the applicants to proceed with the application for an extension of time under s.11 of the Administrative Decisions (Judicial Review) Act 1977 ("the A c t N ) in which to file an application, particularly having regard to evidence that was ultimately led by the applicants' solicitor that he had been incapacitated by an unspecified illness, the problem nevertheless arises that a decision must be made as to whether or not the stay granted by her Honour is to be extended beyond today.
In that respect the applicants' counsel submitted to me that the error that was to be identified in the decision involved a finding contrary to fact that as a result of changes which have occurred in the Fijian police force more recently than the 1987 coup, Mr Hussein could seek the protection of Fijian authorities in the event that he believes
that he is llable to persecution.
Evidence was given by Mr Hussein's solicitor, for what that evidence is worth, that the situation is far from stable in Fiji and effectively that Mr Hussein would still be in danger. It is difficult to know, assuming that evidence is
at all relevant, what weight should be given to it, having regard to the fact that the solicitor lives and practices in Australia and whlle perhaps initially himself from Fiji gave no evidence which indicated any special knowledge of the affairs of that country.
The first question that arises is as to the appropriate test to apply in considering the continuation of a stay, it being assumed that the same test would apply for continuation as would apply for granting of a stay in the
first place. Section 15(1) of the Act provides:

"The making of an application to the Court under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the declslon but:

(a)

the Court or a Judge may, by order, on such conditions (if any) as it or he thinks fit, suspend the operation of the decision; and

(b)

the Court or a Judge may order, on

such conditions (if any) as it or he	thinks fit, a stay of all or any
proceedings under the declslon.	"

Clearly orders made under that section are interlocutory in character in the sense that they precede final orders which are made under s.16 of the Act to dispose of the application. Interlocutory orders in the nature of restraining orders, such as in the present case, may also be made under ss.19 and 23 of the Federal Court of Australia Act

1976. Although the relationship between these provisions may not yet have been fully developed by the Court, there have been cases in which the ordinary tests appropriate for the grant of interlocutory injunctions have been applied to cases such as the present. If those tests are to be applied, the applicants must show an arguable issue to be tried and that the balance of convenience favours the stay of the deportation order. Given the consequences of deportation both immediate and long term (in so far as a person deported cannot be re- admitted into Australia for five years) the balance of convenience will almost always favour the applicant for a stay of the deportation order.

However, that is not to say that if the ordinary tests for interlocutory relief are to be applied, the applicant is relieved from showing any arguable issue at all.

There is, however, a line of cases which suggest

that the principles ordinarily applied in interlocutory

matters are not necessarily appropriate in cases arising under	s.15 of the Act. For example, in Manoher v Minister for
Immiaration, Local Government and Ethnic Affairs (1991) 24 ALD 405 Lee J said (at 408):

"I hesitate to apply limitations to the

exercise of that power by transposing, as implied terns of the statutory provision, rules that have been applied by the courts in determining the grant of interlocutory relief in suits between private litigants,

namely, whether a pr ima facie case or a serlous question t o be t r l ed has been demonstrated and a balance o f convenience

shown t o re s t i n the appl icant ' s favour.

In many cases, not only w i l l such t e s t s not be appropriate but pos i t i ve ly inappropriate. I t i s unnecessary t o spe l l out such examples, but there i s a much higher pr lor i t y t o be glven t o matters o f

jus t ice and fairness i n circumstances

involving the relationship between c i t i z e n

and s t a t e , and declslons which a f f e c t a

person's l i b e r t y w i l l alvrays require qu l t e

d i f f e r e n t considerations.

I f it i s necessary t o apply some descrlptlon t o the t e s t t o be applied by the court under s.15 it i s what i s jus t and f a l r i n the circumstances having

regard	t o	the	i n t e r e s t s	o f	t he	applicant
and	the	i n t e r e s t s	o f	t he	respondent	i n

maln ta in lng e f f l c l e n t departmental

administration or e f f i c i e n t discharge o f

du t i e s	imposed	on	the	respondent	by
s ta tu t e .

In order t o do what i s just or f a i r it may be necessary i n some circumstances for the court t o act i n advance o f the demonstration o f a strong case or i n advance o f the demonstration o f any balance o f convenience, and the court w i l l

so act . "

Reference should be made as well t o t h e judgment o f

French J i n v D e ~ u t v commissioner o f Taxation (1987) 14

FCR 119 a t 129.

I n so fa r as it i s more favourable t o t h e applicants

I am prepared i n t h e present case t o adopt t h e t e s t suggested

by Lee J o f fa irness and just ice i n a l l t h e circumstances,

although I have some reservations about expressing t h e t e s t t ha t way, a t l e a s t where the applicants have had some t ime t o

put evidence before the Court. The strength of an applicant's case will not be the subject of fine consideration when a matter arises as an urgent matter at the time the Minister is about to execute a deportation order. That may not be the case where, as here, directions have been made for the filing of affidavit evidence and those directions have not been complied with.

The problem that I have in this case is that in essence the applicants have not really put before me any form of arguable case. It is not a ground of review under the Act that a decision-maker has got the facts before him wrong. A decision-maker is not really a finder of facts. A decision- maker must ultimately come to a decision. If that decision on the material before him is so unreasonable that no reasonable decision-maker could have reached it, then that of course will be a ground for review. It will also obviously be a ground for review if a decision-maker is shown to have taken into account some factor which is irrelevant or has failed to take

into account some matter which is relevant.

That is not really what is suggested here. The decision-maker has concluded on evidence, which is not before me, that the Fijian police force in 1993 effectively would protect Mr Hussein from persecution. It is asserted, and it really is only an assertion, that that conclusion of fact of the decision-maker was wrongly based, but there is nothing before me that permits me to conclude that it is, let alone to conclude that there is an arguable case that one or other of the grounds in the Act has been made out. The present is not a case where the applicants or their advisers have had no time to consider the matter. It would seem that the matter has been in the hands of various solicitors ever since the decision was made. Indeed, the whole question of refugee status has been the subject of debate between the parties to these proceedings since December 1989.

If I endeavour to determine this matter by reference to what is just and fair in all the circumstances of the present case, having regard to the serious consequences to the applicants of not continuing the stay, on the one hand, and the interests of the respondent as discussed by Lee J on the other, it is difficult to see that I am able to continue the stay in a case where nothing has been really put to me which suggests in any way the decision-maker erred. If, of course,

I approach the matter in the standard way and consider whether

an arguable issue to be tried arises, I of course reach the	same conclusion that, at least to date, no matter has been put
to me which in any way suggests that the applicants have any chance of success at all on any issue which the applicants might seek to argue.
In my view, it is just not sufficient to support an application for a stay to say that the balance of convenience after the time that has expired favours Mr Hussein and his family when they are unable to point to anything which suggests that if leave were given to proceed out of time the application would involve an issue capable of being argued. In these circumstances and with some regret I am unable to extend the stay. I will, of course, hear argument as to a further timetable if the matter proceeds. The application for extension of tune would no doubt have to be stood over until some date when it can be argued and when evidence can be filed.

I reserve costs.

I certify that thls and the
preceding nine (9) pages
are a true copy of the Reasons
for Judgment herein of his Honour

Mr Justice Hill.

ssociate: T c I4hWi C;

Date:  J U L Y 1993

Counsel and Solicitors	R A Johnson instructed by
for Applicants:	Kheras - The Law Firm

Solicitors for Respondent: The Australian Government

Solicitor

Date of Hearing:  16 June 1993