Khan, M.A. v Minister of State for Immigration, Local Government and Ethnic Affairs

[1993] FCA 385

CATCHWORDS

IMMIGRATION - interlocutory application to restrain

deportation pending hearing of judicial review application - whether Court should have regard to the difficulty in presenting his case of an applicant at all relevant times under arrest in considering whether a sufficient case has been made out of a serious question to be tried - discussion of department's duty to provide accurate information if it chooses to tell an immigrant what rights of review or appeal he has - inference drawn from completely inappropriate statements in letter from the decision maker to the applicant that there was a serious question to be tried - whether genuine and realistic consideration had been given to the question in issue.

MOHMMAD AZAM KHAN v MINISTER OF STATE FOR IMMIGRATION. LOCAL
GOVERNMENT AND ETHNIC AFFAIRS

NG 139 of 1993

REGISTRY

Burchett J.

Sydney

25 March 1993

10 JUN 1993

FEDEfiAL COURT OF

AUSTRALIA

PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) NG 139 of 1993

1

GENERAJA DIVISION )

BETWEEN:  MOHMMAD AZAM KHAN

Applicant

AND :  MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE : 25 March 1993

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

In this matter, the evidence is extremely sparse. Unfortunately, that is all too often the case in immigration matters, where an applicant seeking review of a decision relating to whether he can stay in Australia or not is under threat of deportation, and the threat is an immediate one. Obviously, in such cases, and particularly if the applicant is

obtain evidence, and if time is taken to obtain more evidence,	under arrest, there is an extremely limited opportunity to
or to investigate the case more thoroughly, the applicant takes the risk of being deported in the meantime.
In this case, the applicant was expressly put on notice in writing that he might be deported without notice, and he is under arrest. It seems to me that when the court is asked to grant an interlocutory order restraining deportation in a case of that kind, the limitations on the ability of the applicant to adduce evidence, and to assemble his case properly, are plainly relevant to the court's consideration of whether there is a serious question to be tried. It has, of course, been laid down authoritatively that that question is not to be considered in isolation, but must be considered together with the question of the balance of convenience. The balance of convenience, in such a case as this, is heavily in favour of the applicant.
In the present case, the Minister has not provided any evidence to the court in opposition to the application, but has maintained, in writing, as I have said, a quite adamant stand which does not allow an opportunity for the applicant to proceed with his application for review unembarrassed by the risk of immediate deportation. From that point of view, it is perhaps worth pointing out, as the court has had occasion to point out more than once in the past in cases of this kind, that it is quite wrong for a department, when giving advice of
means of review, to inform the person concerned that no review a decision in relation to which the Parliament has provided a
of the decision is available. That is untrue, and plainly runs the risk that the recipient may believe what he is told at an official level, and be thereby cheated of rights which the Parliament of the Commonwealth has conferred on him. In the present case, the letter to the applicant tells him no review of this decision is available in certain circumstances. Now that is simply not correct; he had a right to seek a review under the judicial review legislation. That right, fortunately, he does appear to have been aware of. But I draw attention once again to the fact that if the department tells people what their rights are in respect of appeal or review, it ought to do so truthfully and accurately.
Another curious feature of this case is that a letter was written to the applicant, advising him of the decision, which included a whole series of statements that are, simply, totally and ludicrously inapplicable to his situation. The letter concludes:

"As your status in Australia remains that of an illegal entrant you must make arrangements to leave Australia immediately, so that action will not be taken to enforce your departure.

Your file has now been transferred to the Compliance Section of this office. You should call in person to discuss your intentions with officers of that section. This should be done within seven

(7) days of receiving this letter."

And some telephone numbers were given "to arrange an

appointment". At all relevant times in relation to that	letter, the applicant was already in custody, as the decision
maker must have known if he had applied his mind to the decision and read the file which it was his duty to consider in order to make the decision. Now it may be, of course, that what has happened is that some precedent letter has been carelessly taken up and utilised, and that that is all there is to it. But in the context of a case which has to be dealt with urgently, and where no evidence is proffered by the department, it seems to me that the letter justifies the inference that there is, at any rate, a serious question to be tried whether the decision maker did in fact give what Gummow J. called in one case genuine and realistic consideration to the questions which it was his duty to consider.
For these reasons, I think it is a case where I ought to exercise my discretion in favour of making an order, and I do make an order that the Minister and his officers be restrained from taking any step to carry out the deportation of the applicant until further order. I note that it has been indicated that if I were to make the order which I have now made, consideration would be given to the terms on which the applicant might be released from custody pending the hearing of his case, and in the circumstances I will not, at this stage, proceed to consider the question of an order for his release, so that there will be an opportunity for some arrangement to be arrived at consensually.

I reserve costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

associate:	&&fa-J,
Date: 10 June 1993
Solicitor for the Applicant:	Mrs P. Betts, of Messrs T.P. Boyle & Associates
Solicitor for the Respondent:	Miss S. Kavallaris, of Australian Government Solicitor
Date of hearing:	25 March 1993