Kumar, A v Minister for Immigration and Ethnic Affairs

[1991] FCA 381

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No G677 of 1990

)

GENERAL DIVISION 1

ARUN KUMAR

Applicant

AND :  MINISTER FOR IMMIGRATION AND

04 J U L 1991 ETHNIC AFFAIRS

FEDERAL COURT OF

AUSTRALIA

PRINCIPAL	Respondent
REGISTRY

PLACE: SYDNEY

DATED: 18 APRIL 1991

EX TEMPORE REASONS FOR JUDGMENT

On 12 April, in proceedings No G677 of 1990, Lockhart J gave judgment in respect of proceedings commenced by the applicant, Mr Kumar under the Administrative Decisions JJudicial Review) Act 1977 (Cth) ("the ADJR Act"). In those proceedings before Lockhart J the applicant challenged initially three decisions; the first being a decision not to consider the issue to Mr Kumar of a student visa; the second being a decision to arrest and detain Mr Kumar; and the third being a decision to sign a deportation order against him.

that those proceedings were also in part based upon s.39B of

During the course of those proceedings counsel for Mr Kumar announced to the court that the challenge to the decision to issue a deportation order was withdrawn, as was the challenge to the failure to issue a student visa to him. Accordingly, the only matter that was live was the challenge to the decision to arrest and detain Mr Kumar. I should add

the Jud~ciarv Act 1903 (Cth).

The proceedings before Lockhart J also included a claim in damages for false arrest and imprisonment being a common law claim for damages. The liability of the respondent to damages, if any, of course depended ultimately upon the lawfulness of the arrest; in essence, the same matter that arose under the ADJR Act. The applicant's counsel read certain paragraphs of an affidavit by the applicant and asked relatively few questions.

As a result it seems that there was no evidence adduced by the applicant of any damage that he had suffered, assuming that his arrest was in fact wrongful. Lockhart J found that the arrest was not wrongful, although the handcuffing of the applicant immediately forthwith after his arrest was. The applicant had not claimed for damages in respect of that handcuffing.

In the result, therefore, his Honour dismissed the claim for damages for false arrest and imprisonment. The applicant in the proceedings before me has advised the court that he proposes to appeal to the full court of this court against the decision of Lockhart J and a draft notice of appeal has been prepared and handed to me. The court is able to convene a full court to determine the appeal on Tuesday, 23 April.

The applicant then commenced further proceedings in this court, based upon the ADJR Act and perhaps S. 39B of the Judiciary Act 1903.

These proceedings comprise an application:

- To review the decision of the Minister for

Immigration, Local Government and Ethnic Affairs by his servant or agent to refuse to refrain from implementing the deportation order made against the applicant forthwith; and

- To restrain the Minister from implementing the

deportation order until after the determination of

the appeal in the proceedings G677 of 1990.

The proceedings before me on interlocutory basis are based either upon the provisions of the ADJR Act, or s.23 of	the Federal Court Act 1976 (Cth), to stay the operation of the	deportation order, not ultimately challenged in the
proceedings before Lockhart J, until the appeal proceedings have been at least heard. The proceedings are put in essence on two bases. The first, under the ADJR Act, is for a stay of the deportation order pending the hearing of the proceedings under that Act. The second, relies on s.23 of the Federal Court Act 1976 (Cth) in essence to operate as a stay of the deportation order for the purposes of facilitating the appeal proceedings.
The first difficulty the applicant has, so far as the ADJR Act is concerned, is the question whether the applicant asked the Minister to refrain from implementing the deportation order, either generally or at least until after the appeal proceedings were heard.
An affidavit was read, prepared by the solicitor for the respondent, in which it is deposed that Miss Henderson, who was counsel for the respondent before Lockhart J, had told Mr Allatt that Mr Stevens, who was at one time counsel for the applicant in the present proceedings, wanted to know if the respondent would consent to a stay of the deportation order. Miss Henderson requested Mr Allatt to obtain instructions. These were ultimately received and the instructions were to oppose an application for a stay. The context of those discussions was clearly not the context of an application for an order of review, pursuant to the ADJR Act, because the idea of such proceedings came much later.
Apart from that conversation, there were two letters written by the applicant's solicitors, the one alleging that there was a failure to determine an application to stay and the other requesting the Australian Government Solicitor to advise unequivocally whether there had or had not been a decision to refuse to refrain from implementing the deportation order.
No reply was ultimately received to those two letters. However, I do not think that it is proper to infer from the fact that there is no reply the fact that there was ever a request which has been refused.
I think there is some difficulty in coming to a conclusion that there ever was an application but there is a greater difficulty in the applicant's way of establishing an arguable issue under the ADJR Act and that is that the Miaration Act 1958 (Cth) requires, once a deportation order is made that, unless it is revoked, the person against whom the deportation order is made is to be "deported accordingly".
The full court of this court in Dallikavak v Minister for Immiaration and Ethnic Affairs (1985) 61 ALR 471, held that there was no express or implied power in the Minister to suspend a deportation order and that accordingly an application to review a decision to refuse to suspend the
operation of the order was not maintainable under the provisions of the ADJR Act.
No doubt the applicant could have applied to the Minister for revocation of the decision at least on grounds which are stipulated under the Miaration Act. He did not, however, seek to do this. On the whole I think I am bound by that decision to say that the applicant has under the ADJR Act no standing to seek a review of the decision to refuse to refrain from implementing the deportation order and on that basis the application for interim relief must obviously fail so far as those particular proceedings are concerned.
The more difficult question is whether in exercising the power under s.23 of the Federal Court Act 1976 (Cth) , assuming the applicant to have commenced an appeal to the full court (at this stage no such appeal has in fact been commenced), it is appropriate to grant an injunction staying the deportation pending at the very least the outcome of the appeal court's decision.
The submission that was ultimately put was that while clearly enough the presence of the applicant would be unnecessary for the purposes of actually arguing the appeal, an application might be made to the full court to adduce
it is said, from being held 23 hours in custody illegally. further evidence of the damages which the applicant suffered,
No explanation is given to me as to why that evidence was not adduced when the proceedings were before Lockhart J. Indeed, perusal of the transcript indicates that no evidence at all of any damages was given before his Honour. It is unnecessary for me to set out here the appropriate rules for consideration in applications to the full court for the admission of fresh evidence, but it is quite clear that unless some evidence is put before the full court as to the circumstances why the evidence was not originally tendered, the full court would be unlikely to accede to an application.
The difficulty I have is that there has been no attempt to put before me any explanation why such evidence was not advanced. I do not for a moment blame counsel who appeared before me today for this course, because his instructions apparently had been that there was a splitting of issues between liability and damages. However, it seems that that is not the correct situation.
While it is clear that the balance of convenience is in favour of the applicant remaining in Australia at least for a few days until the appeal proceedings are concluded, it is still necessary, before a stay is granted, for some arguable basis to be advanced, albeit that the heavier the balance of
convenience the less significant may be the weight of the arguable issue.
Ultimately, the only basis upon which the applicant can put his case is that if, for reasons which I do not know, there is an explanation as to why the evidence was not advanced in the proceedings before Lockhart J, and if the full court accepts the explanation and in accordance with well established principles, permits the giving before it of fresh evidence, then it would be necessary for the applicant to be present in court.
If some explanation had been given to me for the failure to adduce evidence at the outset that was credible I would, I think, have been prepared to grant to the applicant an injunction restraining the respondent from deporting the applicant pending the outcome of the appeal proceedings. However, in the circumstances it seems to me that there is in reality nothing before me which permits me to take that course.

In the circumstances I would refuse to grant the

interim relief.

I certify that this and the
preceding seven (7) pages
are a true copy of the Reasons

for Judgment herein of his Honour

M r Justice Hill.

Associate:
Date: 18
Counsel and Solicitors	C. Hodgekiss instructed by
for Applicant:	John Sarroff & Co.
Counsel and Solicitors	Miss R. Henderson instructed by
for Respondent:	the Australian Government Solicitor
Date Judgment Delivered:	18 April 1991