Karpiesiuk, Leszek v Minister for Immigration and Ethnic Affairs

[1985] FCA 693

IN THE FEDERAL COURT OF AUSTRALIA)

VICTORIA DISTRICT REGISTRY No. V G 2 6 1 of 1985

DIVISION GENERAL )

BETWEEN: LESZEK KARPIESIUK AND EWA

SZWEIjO

Applicants

AND: THE MINISTER FOR

IMMIGRATION AND	ETHNIC
AFFAIRS

Respondent

CORAM ;	Jenkinson J.
PLACE :	Melbourne

DATE ; 22 November, 1985 \

Applications pursuant to s.15 of the Administrative

- Decisions !Judicial Review) Act 1977 to stay proceedings under a

decision in respect	of which an order of review is sought by	each
applicant.

A delegate of' the respondent Minister made an order on

11 November I985 that the applicant Leszek Karpiesiuk be deported

from Australia. Shortly thereafter the order was put in execution

by placing Mr. Karpiesiuk on board an alrcraft which then

travelled from Australia to England. The aircraft was operated by

(jantas Airways Ltd. [ "Qantas" ) . It was the intention of the

respondent' S ot.t'icers and of the officers of Qantas who were

2 .

concerned in the matter that Mr. Karpiesiuk should on arrival in

England board an alrcrart which would carry him to Poland, of

whlch country he IS a cltizen and from which country he travelled

to Australia in March 1985. It appears likely that Mr. Karpiesiuk

was aware o t those intentions before he left Australia and that,

although he had asked bet-ore the deportation order was made to be

allowed to travel voluntarliy from Australia ta a country other

than Poland if his application f o r permission to live here were

refused, he had not mdicsted h15 intention t o ret-use to return to

I,	Poland until he reached England. But in England he did refuse to
board an aircraft bound f o r Poland, the English authorities
declined to enforce his departure f o r that country and, although
he proposed that he be flown to East Berlin, Qantas brought 'him
back to Australia.

W e n the aircraft arrived at Sydney airport, which is a

"proclaimed airport" within the meaning of that expression in the Misration Act 1458, Mr. Karpiesiuk was dealt, with as a person

- subject to the exercise of the powers conferred by s.36A(l) of

that Act or, perhaps, as a person sub~ect to the exercise of the

powers conzerred by s.36A(2). further, a requirement of the kind

specified in s.36At4) has been made of Qantns in respect of him.

The applications for orders of review made in the one originating

process (a l so called, unhappily, an application) by Mr.'Karpiesiuk

and by Ewa Szwedo, an Australian citizen who professes an

intention to marry Mr. Karpiesiuk as soon as possible, are in

respect or the decisions to exerclse those powers, under s.36A(1)

or s.36A(%) and under s.3bA(4). The decision in respect of which

an interlocutory order staying proceedings is sought is the

These decisions were taken only a few days ago, Mr.

Karpiesluk is In custody in Sydney, the applicants' solicitor, Mr.

Little, is in Melbourne and there is considerable uncertainty, on

the materlal which It has been possible to place before me in so short a time, concerning the facts. From that material a serious question to be tried does in my opinion appear : whether an

i authorized otficer could reasonably have believed that Mr.

Karpiesiuk was seekin9 to enter Australia when he arrived in the

aircraft in Sydney , or when he disembarked from that aircraft.

There seems on that material to have been nothing in the circumstances which would have been disclosed to the officer to suggest an attempt by Mr. Karpiesiuk to enter Australia. He had come in the aircraft, it would appear, because he had been bidden

to come and was unable either to stay in England or to go

elsewhere, except to Poland. But it would be a consideration

- relevant to the exercise of the discretionary power conferred by

s.15 that no final order or any value to Mr. Karpiesiuk or to the

other applicant would be made in these proceedings or in any other

proceeding designed to prevent his deportation. There is nothing

shown t o suggest that the deportation order might be set aside if

an order of review were sought in respect of the decision to make

that order. The delegate was not apprised, when he made the

order, that Mr. Karpiesiuk and the other applicant desired to

marry. He knew only that they contemplated the possibility ot

marriage. No other ground of review in respect of the deportation

order was suggested. But it was submitted on behalf of the

4.

applicants that the deportation order could not now authorise the

removal or Mr. Karpiesiuk from Australia, that the order had been

wholly executed and that, its legal er’fect was now spent. It. was

submitted that, if the decisions taken under s.36A were set

aside, removal of Mr. Karpiesiuk t-rorn Australia could thereafter

be lawfully effected only in execution of another deportation

order. When deciding whether to make such an order the respondent

Minister or his delegate would be aware of the applicants’ intentions to marry and would be required to take those relevant

.-

circumstances into conslderation in making the decision, it was

submitted. Accordingly, the submission concluded, there was good

reason to expect that, if this court ultimately concluded that the

ground justifyinq review of the decisions under s.36A was

established, the discretionary power conferred by s.16 of the

Administrative Oecisions (Judicial Review) Act 1977 would be

exercised in favour of the applicants, if the court also thought

that the first deportation order was, or %hat it mlght be, no

Longer et-fective to authorise Mr. Karpiesiuk‘s removal from

- Australia.

In my opinion these submissions raise serious questions

to be %rieci. The reach of the legislative power in exercise of

which the Miqration Act 1958 was enacted has been considered by

the Hiqh Court in relation to events which occur after a deportee

has been carried outside Australia : see Znatv v. Minister of

State f o r Immiqration ( 1 9 7 2 ) 126 C.L.R. 1. But .little cjuidance is

found in that case upon the questions of construction of that A c t

which may - as I presently think, will - have to be resolved in

order to determlne whether the deportation order now authorises

5 .

t h e removal of Mr. Karpiesiuk from this country. It may be that

determination of the latter question will turn on precisely what the events were which occurred in England and which resulted in

Mr. Karpiesiuk's return to this country.

The balance of convenience inclines in favour of the

applicant Mr. Karpiesiuk, I n my opinion. It would be very

difficult and very expenslve for him to prosecute his application

while he resided, at least until the time of the hearing, in

' Poland; and even more expensive if his presence at the hearing of

the application were found to be necessary, as it might be

necessary if issues of fact arise between him and the respondent.

W i l e the respondent is of the opinion that the

deportation order authorises, indeed requires, the removal of Mr.

Karpiesiuk from Australia, the respondent cannot be expected to

consider whether or not, on the information now available to him,

another deportation order ought to be made. But he may consider

~~ that no impediment exists to his giving consideration, while these

applications for orders of review are pending, to a request that

he revoke the deportation order which his delegate made and that a

temporary entry permit be granted to Mr. Karpiesiuk SO that an entry permlt other than a temporary entry permit may be then

cjranted. If such a request were made and considered, and a

decision were reached that, whatever the outcome or these

applications f o r orders of review, no entry permit should be

granted to Mr. Karpiesiuk, this court might then give

consideration to the question whether the interlocutory order

which I propose to make ought to continue. And if Mr. Karpiesiuk

b.

reframs trom makmq such a request In the Immediate future, this

court mlght give conslderation to that question. For those

reasons the order will be expressed t o operate until further

order, not until the hearing and determination	of the application
or further order.

The question whether the applicant Ewa Szwedo is a

person who is aggrieved by either of the decisions in respect of

which orders of review are sought was not raised by any party.

The applications f o r interlocutory relief have been heard as

matters of urgency. It is at present unnecessary and therefore in

my opinion undesirable that 1: decide whether that is a serious question to be tried. The preferable course, I think, is to make orders on Mr. Karpiesiuk's application and adjourn t'urther consideration of Ewa Szwedo's application f o r interlocutory relief

to a date to be fixed by any party	on reasonable notice to the
other parties.

Mr. Little advanced other submissions in support of a

stay. I need not consider them, except to say that in respect of submissions concerning s. l .6 of the Misration Act regard should be

had to s.36A(8) and s.S(2)(b),