Karpiesiuk, L. v The Minister for Immigration & Ethnic Affairs

[1985] FCA 580

NOT APPROPRIATE FOR GENERAL CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA 1

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VICTORIA	DISTRICT	REGISTRY	1
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GENERAL DIVISION	)
B E T W E E N :

LESZEX KARPIESIUK

First Applicant

EWA SZWEDO

Second Applicant

A N D :

THE MINISTER FOR

IMMIGRATION AND ETHNIC

AFFAIRS

Respondent

KEELY J.

REASONS FOR JUDGMENT

Transcript of Oral Judment)

Mr Little has stated, on behalf of

the applicants, has stated that they intend to file today an application under section 5 of the Administrative Decisions (Judicial Review) Act 1977, (the Act) seeking an order of review of an order made by the respondent, the Minister for

Immigration and Ethnic Affairs, through his delegate, on 11

November 1985 for the deportatlon of the first-named

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applicant. The present hearing is of an ex parte application

for an interlocutory order staying the operation of that

deportation order. The Court has been informed by Mr Little

that that order will result in the first-named applicant, who

I	has been in custody since	17 October 1985, being placed on an
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aeroplane at 1.30 this afternoon, ie, about 20 minutes from

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now.

The proposed application, with a supporting

affidavit made by the second-named applicant, was handed to

the Court. It is based upon two grounds.

The first ground of the proposed application for a

review is that the Minister failed to take into account a

relevant consideration, namely "the interest of the second

named applicant in marrying the first named applicant". The

papers in this matter include a statement of reasons supplied

under section 13 of the Act, by the Minister's delegate to

the applicants yesterday afternoon. On my examination of the

material it has not been shown that there is any reason to

l	conclude that the Minister's delegate failed to take into
I	account that interest of the second named applicant.
- The S . 13 statement of reasons is based upon a

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departmental submission to the Minister's delegate, together

with certain annexures. The statement of reasons itself

expressly adopts the "findings" in part A of that submis~ion.

Those findings have been accepted by the delegate on the

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basis of the evidence put before the delegate under part B of !-'

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the submission. The delegate adopted the "reasoning" set out

in part C of that submission, which is headed "assessment".

In the findings on material questions of fact

contained'in part A of the departmental submission, paragraph

10, which deals with an interview by a departmental officer

with the first named applicant, contains n express reference

to the fact that the first-named applicant:-

"had a girlfriend whom he had known for over 5 months and to whom he had intended to become

engaged. He added that they had not set a date for

the wedding as he first wished to establish himself

financially and have more time before definitely

deciding on his future."

That "girlfriend" is the second named applicant in these

proceedings. The male applicant during the interview said

that "the girl's	parents	were	not	opposed	to	their
relationship".

There is a reference back to that subject matter in

part C of the departmental submission, the reasoning in which

was, as I have said, adopted by the delegate. In paragraph

29 the departmental submission put the matter	o the delegate
in these terms:-

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"In view of the above factors you may consider that

the circumstances involved in the relationship

between the parties ... do not outweigh the	policy
in favour of deportation"

In that quotation a matter not presently material has been

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omitted.

I think it is fair to say that that passage in

paragraph 29 was a matter which had escaped the attention of

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Mr Little in presenting the matter to the court on behalf of ..I

the applicants today. In my view it is clearly a reference

to the likelihood of the two applicants marrying at some

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future date if they both remain in Australia. Mr Little told	r,; 1 .
the court that the "relationship" between the applicants is	!
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not what he called a de facto relationship and submitted that I .

they should not be penalised in any way by reason of that

fact. Plainly that submission is correct.

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It seems to me not possible, on that material, to

reach a conclusion that the delegate failed to take into

account the effect of the proposed deportation of the

first-named applicant upon the likelihood of the marriage

occurring. Accordingly I am not satisfied that there is any

serious question to be tried arising from the first ground of

the application.

The second ground of the application for a review

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is that the decision-maker was wrong in law "in thinking that

the first named applicant had breached migration law by

working". I drew Mr Little's attention to the fact that in paragraph 22 of the submission to the delegate, which is one

of the paragraphs in part C which is headed "Assessment",

there is a statement that the first named applicant h s also

committed offences under section 31B of the Act by engaging

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in employment without the permission of an authorised

officer. An undertaking that he would not engage in

employment without such permission having been given was part

of the basi6 upon which the first named applicant had been

granted a temporary entry permit in March of this year. In

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my opinion no argument has been advanced which would

contradict the proposition that the male applicant, by

working, as he admittedly did, from July 1985 until 17

October 1985 when he was arrested by departmental officers,

committed an offence against section 31B of the Act.

Mr Little has said that he wishes to argue on this

second ground of his application that s.31B of the Migration Act 1958 is unconstitutional if it is interpreted in such a way that a person, who enters Australia on a temporary entry

permit, based upon an undertaking that he will not work, and

who after arrival in Australia makes a bona fide application for permanent residence, is prohibited from working and would

commit an offence if he did work.

As I understand the submission, Mr Little contends that, although the Act may be within constitutional power in

so far as it makes it an offence for a person to work whilst

he is the grantee of a temporary entry permit which has been

given on his undertaking not to engage in paid employment in

Australia, the Act can not constitutionally make it an

offence for such a person to so engage in employment after he

has bona fide applied to the department for permanent

residence in Australia.

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I am unable to see any grounds to support that

argument and do not regard it as raising a serious question

to be tried. As no such question has been shown as to either

of the two grounds formulated in the application for an order

of review and no other matter has been relied upon as

supporting the order sought today, the application	for a stay
is refused.