Hutchesson, B.H. v Ray, Senator the Hon. Robert , Minister for Immigration, Local Government & Ethnic Affairs

[1988] FCA 602

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JUDGMENT No s..6~o&,,.~.g.I....

NOT FOR DISTRIBUl‘ION

IN THE FEDEZAL COURT OF AUSTRALIA	)
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SOUTH AUSTRALIA DISTRICT REGISTRY	NO. SA G85 Of 1988

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GENERAG DIVISION 1

BE-:  BARBEL HERTA HLPPCHESSON

Applicant

Respondent

CORAM:	Davies 3.
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-	DATE:	23 September 1988
PLACE :	Adelaide
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REASONS FOR JUXJEXC

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This is a renewal of an application for an.-’

interlocutory injunction to prevent the deportation of the .

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applicant, Barbel Herta Hutchesson, pending the trial of an

application seeking review	of the decision	by a delegate of
the Minister	€or Immigration, Local Government	and Ethnic

Affairs not to revoke a deporation order earlier made.

The validity of that deportation order was itself the

subject of an application for review in this Court.	Mr
Justice Forster dismissed the challenge. Subsequently,	an

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appeal was lodged and that appeal w s dismissed earlier this

week. Accordingly, we must proceed upon the footing that

there is a valid deportation order. The Migration Act 1958

requires in s.20 that:-

"(1) Where the Minister has made n order for the

deporation of a person, that person shall, unless	the
Minister revokes the order,	be deported accordingly.
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Pending the hearing of the appeal, the applicant's solicitors forwarded further affidavits to the Minister and requested reconsideration of the order for deportation and that it be revoked. On 26 August 1988, Mr Simons, the State Director,

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wrote to say that a delegate of the Minister had considered

the request but had decided not to revoke the deportation

order. It seems to	me that a decision not to revoke	a
deportation order is	a decision made under the Act and	may be
reviewed.	I do not determine that point on	a fi al basis, but
for the moment,	I assume that to	be the position, namely that

the Act either expressly	or by implication confers	a power to	, . ! .
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make a decision to revoke a deportation order and that any

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decision under that express or implied power is a decision

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made under the Act and therefore reviewable.

However, the question now arises as to whether any

serious issue to be tried has been demonstrated. I assume for

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the moment that, if a serious issue to be tried had been

shown, the balance of convenience would favour the grant of an

interlocutory injunction.

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The applicant's solicitor has filed an affidavit

sworn 23 September 1988 in which he states that:-

'l... the affidavit of the applicant and her husband

sworn on the 22nd of July 1988 evidence an intention	.	,J
on their part that the marriage should continue	and	I
that the marriage is not defunct."	r .

And he swears in his affidavit that:-

"...the delegate should have taken into account the

intentions of the applicant and her husband and

should then have revoked his decision made	on the
19th of February	1988 to deport the applicant.
... the decision	of the delegate made on the 26th of

August 1988 not to revoke the earlier decisions is

prima facie evidence that he did not take into account the intentions of the applicant and her husband. "

In proceedings under the Administrative Decisions

(Judicial Review) Act 1977 there will not be an issue as to

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whether the marriage between the applicant and her husband was

or was not a genuine one and as to whether	or not the	L
intentions expressed	by them in their affidavits were genuine.	, -

Proceedings under the Administrative Decisions (Judicial I.

Review) Act 1977 deal with questions of law only. I include

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in questions of law matters such as whether or not all

relevant material considerations were taken into account or

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whether or not scrme irrelevant consideration	was taken into	1 .
account.

It does not seem to me that it has been shown that

any relevant material was not taken into account. It is true

that the letter from	Mr Simmons was a brief one, but	I am not
surprised at that as it	was written at a time when there	was

an appeal on foot and the appeal had not been determined. One

would not have expected in those circumstances great length in

a letter written to the applicant's solicitors. !

It was for the delegate to make such use of the

affidavits as he saw fit and to make up his own mind as to

whether or not the intentions expressed therein were genuine

and, even if they were, whether Mrs Hutchesson should	be
deported.	I cannot draw from the facts that have occurred any

serious argument that the affidavits were not taken into

account.

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The mere fact that decision was made not to revoke

does not seem to me to give rise to a serious argument that

the decision	was unreasonable or was made on an improper
ground.

For these reasons, it seems to me that it has not yet

been established that there is any serious matter to be tried.

I do not indicate a view that other evidence in the future

could not show that there is a matter which is triable. But

at the present t i m it seems to	me that a triable issue is not
disclosed.

For those reasons the application will be dismissed.

I certify that this and the 3

preceding pages are a true copy of
the Reasons for Judgment herein of

the Honourable Mr Justice Davies.

Date- 2 - 3 1988

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Counsel for the applicant:  Mr D. Waye ?

Solicitors for the applicant: P.N. Waye & Associates

Counsel for the respondent:  m J.J. O'Halloran

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Solicitor for the respondent: Australian Government	I
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Solicitor

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hearing:  of Date 23 September 1988