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

[1989] FCA 129

JUDGPJENT NO. f 3 . 7 . ~ 89 ,

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G 129 of 1989
1

DIVISION GENERAL )

BETWEEN :  MAYUR KUMAR and MANJU GOVIND

Applicants

AND :  MINISTER FOR IMMIGRATION, LOCAL

GOVERNMENT AND ETHNIC AFFAIRS

Respondent

MORLING J. 1989 March 16

(EX TEMPORE) REASONS FOR JUDGMENT

The applicants have commenced proceedings in this

Court under	the Administrative Decisions (Judicial Review) Act
seeking an order inter alia,	that the deportation order made

against the first applicant be set aside. The deportation

order was made on 1 4 March 1989 and it is proposed that it be

put into force tomorrow mornlng at about 9 a.m. when the

respondent proposes to arrange for the first applicant to be

placed on a plane to be returned to F i ~ i .

The grounds set out in the application are as follows:

1.        The respondent falled to take relevant consideratlons into account in making the decision.

2 . The respondent took Irrelevant consideratlons into

account.

3 .         The declsion involved an error of law.

The resDondent exercised his discretion in accordance

In the ordinary case, where urgent interlocutory

relief 1s sought, the Court adopts the prlnclples whlch are referred to In the Judgment of Gibbs C.J. ln the Australian

Coarse Gralns Case. That 1 s to say, before grantlng

interlocutory rellef the Court requlres to be persuaded that

there 1 s a serlous questlon to be trled and that the balance of

convenience lies	in favour of granting lnterlocutory rellef.
In a case such as	the present, where the Court must make a

decision urgently before the appllcants' solicitors or counsel have had a real opportunity to consider the strength or weakness of their clients' case, it is difficult to slavishly follow these principles. In this case, the applicants' counsel has so far had only a matter of hours to prepare her clients' case.

The application currently before me is for a stay of

the deportation order pending the final hearlng of the

application. If I had to find afflrmatively at this point of

trme that I am satisfied there 1s a serlous question to be

tried I thlnk I would have some difflculty In maklng such a

f indlng . nr Hrobart, who appears for the respondent,

forcefully points thls out	"and says that no case has been made
out for the grant of a stay.

I see the force of thls submlsslon. In a case where

an applicant has had a reasonable opportunlty of obtaining legal advice so that hls lawyers can argue the questron whether there is a serious questlon to be trled, I thlnk Mr Hrobart's

argument would be decislve. But In the case such as the