Karavaki, M. v Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 948

JUDGMENT MO. ........ ........ .. 9 ~ 8 I ........ .., 42

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)	NO NG 827 of 1992
GENERAL DIVISION	1

BETWEEN MBRESEINI KARAVAKI
Applicant

AND MINISTER FOR IMMIGRATION,
LOCAL GOVERNMENT AND

10 DEC 1992 ETHNIC AFFAIRS
Respondent

PRINCIPAL

EX TEMPORE JUDGMENT

EINFELD J SYDNEY 9 NOVEMBER 1992

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This is a borderline case in which it is difficult to do absolute justice to the applicant and to the respondent as the representative for this purpose of the public interest. The facts of the matter have been litigated this morning and are contained in the evidence before the Court. In view of the fact that I have another matter waiting for hearing, I will not take time now to outline all the facts, contenting myself

m	merely to mention that the applicant has now been in Australia for a little over seven years on a one month holiday visa. During that time she has received refusals of permission to remain in Australia and at least one offer that she leave voluntarily. Notwithstanding that, she has remained in Australia and has worked for all or the majority of the time
she has been here in contravention of Australian law.

I am not satisfied, despite the earnest submissions on behalf

of the Minister, that she has deliberately remained out of

contact or attempted to hide from the authorities;- At the c. L -

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same time, I find it difficult to accept ~6y'stat>ement"$hat if

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the department had been in touch with her somejiyea'fs after her	. I	. --
arrival, she would have left voluntarily,' say2ng 'h1	kupport~	of

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the statement that she had forgotten having receieed a setter I .j I.,

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asking her to leave. It seems to me quite unlilc+!ly' that

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someone who must have known that her status in-Australia was
extremely precarious would be likely to forget even for a •
minute that at any particular moment she might be arrested and
deported. If she did in- fact forget, then it represents some

judgment upon the seriousness with which she has been prepared

to face the legal circumstances in which she has been since

the expiry of her holiday visa seven years ago.

The question now is whether the applicant should be given the

opportunity to contest the two most recent decisions in

October 1992, the effect of which would be to deport her

peremptorily. The application for review under the	a
Administrative Decisions (Judicial Review) Act is in quite	general terms, largely because the legal representatives of
the applicant have not been in a position to know precisely the basis upon which the two decisions have been taken. I am informed that those reasons for decision will be available shortly.

Deportation is a most serious event and it would seem to me to be rare when careful attention would not be given to any challenge, especially if it can be done with limited harm to the national interest. In Australia the rule of law still applies even though sometimes it struggles for breath. It has historically been the position in English-speaking democracies for more than 400 years that people have been entitled to access to courts for the purpose or reviewing decisions about their status.

Deportation is one such circumstance. There is force in the view put forward on behalf of the Minister that this application for order of review is not the strongest that has come before the Court to say the least. Nonetheless, it would be a serious decision to deny the applicant the opportunity of putting whatever evidence and submissions she wishes to put in order to challenge the decision which would have the effect of removing her from Australia permanently or for a very long period.

stay of the deportation order, but to order a very early	In the circumstances, what I propose to do is to continue the
hearing of the application. On the basis that the reasons for decision should be available within the next seven days, I intend to make orders which would permit the evidence to be placed before the Court by way of signed statement rather than affidavit and to fix the hearing for Monday 23 November. A timetable will be fixed in a moment for the supply of the necessary evidence. That would amount to granting items 1 and
2 in the motion brought before the Court by the applicant.
The applicant also seeks release from custody, she now being in the Villawood Detention Centre. Once again, provided the Court is satisfied that the applicant is unlikely to bolt from sight and to remain within the jurisdiction of the Court, and the notice of the department and the rest of the community, there is no reason why she should have her liberty taken away from her. The argument has been put that in effect she should not be believed on her oath, that her conduct has been reprehensible and complefely contrary to Australian law, and that on that and related bases, she has not earned her right to freedom.
As it seems to me, this is not the way in which such matters should be considered. Detention pending a hearing is not a penalty for miscreances. It is merely designed to ensure that the applicant's attendance at the proceedings and her

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reasonably assured. There is always a risk when somebody is	responsiveness to the orders made in the proceedings can be
released from detention that they will not turn up. The usual one that is used in cases in other courts of the land are that the applicant will abscond. Quite obviously, by the very nature of these proceedings, it is quite unlikely that the applicant will leave Australia, but if she did, the respondent will have had a bloodless coup.
So far as her likelihood of disappearing within Australia is concerned, I must give attention to the fact that she is an ethnic Fijian; that she has close associations with the Fijian community; and that a pastor of the Fijian Assembly of God has come forward, not only to vouch for her remaining for the hearing and remaining in contact, but also to put forward a sizeable sum of money from a church organisation to guarantee her attendance.

.m	I am sure that the applicant also understands that in the event that she does not comply precisely with the Court's orders if she is granted - her liberty, then her chances of ever successfully achieving permanent residence in Australia would disappear with her. On the next occasion it is quite unlikely that she would be given a great deal of attention by the Court. I propose to grant her application for release from custody. There will be some conditions which I think should be the subject of discussion and negotiation between the parties, rather than imposed unilaterally by the Court. I
will make orders if agreements cannot be reached, but I will indicate the matters which ought to be given attention.
The motion suggests conditions that the applicant live at an address in Liverpool and report in person to the Rockdale office of the department, three days a week. I would not require her personal attendance three days a week, but one day a week, provided she reports by telephone on two other occasions to a number and person whose details should be given. The applicant should certainly reside at the address stated or at some other nominated address, and provide the department with not less than 48 hours notice of any proposed change. She should not change addresses without prior approval of the department or order of the Court.
I will accept Reverend Uluirewa's undertaking made to the Court that he will retain regular contact with the applicant and will notify the department in the event that he becomes aware of any breach by the applicant of the terms and conditions of her release. I will accept his lodgment of
$5000 as a surety for thg applicant's attendance. It will be
a condition of the applicant's release that she attend court for the hearing of the matter and for the judgment, though it will not be necessary for her to attend for any directions hearing or mention that happens to become necessary. She will also give an undertaking that she will surrender herself to the department in the event that her application for judicial review is refused.
A question arises as to the applicant's work position. It appears that at the present time she holds a responsible
position for a large Sydney enterprise. It seems to me that the only permission that can be given under the Act for someone to work is the of the department. I do not think it is for the Court to give permission for anybody to work contrary to Australian law. Even if it were, no case has been made out here, there are no facts upon which the Court could make such an order, even if it had jurisdiction to do so. In the circumstances I think a condition should be imposed that subject to permission being given by the secretary of the department for the applicant to work upon application being made by the applicant, the applicant should undertake not to continue employment pending the outcome of the proceedings.
I will stand the matter down so that these conditions can be put into a document acceptable to the parties, and it can be
b	mentioned later in the day. In the meantime the applicant can be released from her official custody, provided she stays in the presence or company o-f her solicitor.