Laremont, S.H. v The Minister for Immigration & Ethnic Affairs

[1985] FCA 602

Re: SEBASTIAN HAMLET LAREMONT
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G 226 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

Administrative Law - judicial review - deportation order against prohibited non-citizen - consideration given to question whether deportee's presence required in Australia to conduct workers' compensation proceedings - whether Minister's decision to order deportation was made after taking into consideration a materially inaccurate matter. Remedies - decision referred back to Minister for further considertaion (see para. 16(1)(b) A.D.(J.R.) Act, 1977)

Administrative Decisions (Judicial Review) Act 1977: paras. 5(1)(e), 5(2)(b), 16(1)(b).

Migration Act 1958: s. 18.

HEARING

SYDNEY
#DATE 6:12:1985

ORDER

The question whether to order the deportation of the applicant be referred to the respondent for further consideration in accordance with the Court's reasons for judgment.

The respondent is directed not to execute the deportation order made against the applicant on 27 October 1985 prior to his giving further consideration to the question referred to in Order 1 herein.

The respondent is to pay the costs of the applicant of these proceedings, the costs of the interlocutory proceedings for a stay of the deportation order and for the release of the applicant from custody.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

See also Order 37 rule 2(3).

JUDGE1

Sebastian Hamlet Laremont, the applicant, seeks a review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"), of a decision of the Minister for Immigration and Ethnic Affairs made on 27 October 1985 to deport him.

1. The applicant is a citizen of the Republic of Panama. He was born on 22 July 1942. He is a married man with two children but is separated from his wife. He was educated at the University of Panama where he obtained a degree of Bachelor of Science and later a degree in Medicine. He obtained a licence to practise medicine in Panama in 1967. In 1969 the applicant attended a medical conference in Hawaii and was invited to visit Australia by some colleagues. He later became a member of a body known as the Australian Sports Medicine Association.

2. The applicant came to Australia in 1977 with a patient for a short time. In 1979 he returned to this country at the invitation of the Australian Sports Medicine Association. His relevant entry into Australia for present purposes occurred on 30 April 1980 when he came here as a visitor and was granted a temporary entry permit valid for two months. Upon the expiration of that permit he became, and has since been, a prohibited non-citizen.

3. In November 1983 the applicant obtained temporary employment as a casual labourer with Cadbury-Schweppes Pty. Limited at Alexandria, New South Wales. On 15 March 1984 he suffered an injury at work to the fourth finger of his left hand, and it appears that he suffered deep venous thrombosis consequent upon his hospitalisation for treatment of the injury. He was in hospital at the Royal South Sydney Hospital from 19 March to 9 April 1984.

4. Following his discharge from hospital he continued to receive treatment from medical practitioners and from the Royal South Sydney Hospital Rehabilitation Centre. He was unfit for work for over 12 months and on one view of the evidence suffered a permanent partial disability.

5. On 4 June 1985 proceedings were commenced on his behalf in the Workers Compensation Court of New South Wales (Number 7403 of 1985). For the purpose of those proceedings the applicant has been examined by a number of medical practitioners and it may be necessary for him to have further medical examinations. The applicant's claim was listed for hearing on Tuesday and Thursday of this week before the Chief Judge of the Workers Compensation Court. It is not for this Court, of course, to attempt any definitive assessment of the applicant's prospects of success in those proceedings but the evidence before me suggests that the claim is at least seriously arguable.

6. The applicant was charged on 4 February 1985 with stealing one shirt to the value of $18.48, the property of Woolworths Limited, and that matter has been mentioned on various occasions before the Local Court in Sydney. Counsel informed me that it was to be mentioned again on Monday of this week. There is evidence before me as to the future course which those proceedings may take and I will say little about them for present purposes except that it appears at least possible that they will not be prosecuted further, but, if they proceed to a contested hearing, the result may not be known until early in 1986.

7. The applicant wishes to be in this country primarily for the purpose of prosecuting his workers compensation case. He wishes to attend further medical examinations, give evidence before the Court and instruct solicitors and counsel. It is obvious that the absence of the applicant from the jurisdiction could place him at a material disadvantage. He also wishes to remain here until the determination of the prosecution for shoplifting in order "to clear his name".

8. When deciding to deport the applicant from Australia the Minister had before him the departmental submission dated 15 October 1985 which included the following paragraphs:
   
   

"24. It has been submitted that Dr Laremont's presence in Australia is required to pursue a civil claim for damages as a result of a medical condition brought on by the subsequent treatment of injuries sustained during casual employment, and workers compensation for the injuries themselves. He also wishes to remain because he contends that deportation would endanger his career and his life. It has been further submitted that Dr Laremont may not travel in any event because of his deep vein thrombosis.

25. As far as Dr Laremont's medical condition is concerned, there is evidence from specialists to conclude that he suffers from an ailment which restricts his capacity to travel by air. The fact that he suffers from deep vein thrombosis does not appear to be fully established. Dr Selecki's report indicated that this was not the case. Specialists recommended that Dr Laremont undertake Doppler studies to confirm the condition but Dr Laremont has not done so. In any event, it has been confirmed by Qantas officials that it is not extraordinary for persons suffering from deep vein thrombosis to travel by air, as long as certain precautions are taken.

26. Insofar as Dr Laremont's compensation and damages claims are concerned, according to the affidavit of his solicitor, Mr Anthony Margiotta, proceedings for the claim for damages are not currently on foot. It would appear they are reliant upon the workers compensation matter. It is submitted that Dr Laremont's presence is not required in Australia to pursue workers compensation or an action for damages, if the latter eventuates. To this end any further medical evidence or specialist reports, even with the assistance of Australian Embassy or Consular Staff, could be conveyed to his solicitors and doctors from South America. Accordingly, you may decide not to grant a further temporary entry permit to Dr Laremont."

The submission concluded as follows:

"RECOMMENDATION

If you accept the findings on material questions of fact and the assessment set out above, it is recommended that you:

(i) revoke the deportation order signed in respect of Dr Laremont on 17 July 1985;

(ii) refuse the grant of a further temporary entry permit to Dr Laremont;

(iii) refuse the grant of permanent residence to Dr Laremont;

(iv) sign the attached order for the deportation of Sebastian Hamlet Laremont.

Replies to Dr Carlos Bustamante and Mr Michael Maher are attached for your signature."

1. At the foot of the departmental submission a typed note appears in the following terms:-
   
   

"DEPORTATION ORDER OF 17/7/85 REVOKED/NOT REVOKED FURTHER TEMPORARY ENTRY PERMIT REFUSED/APPROVED PERMANENT RESIDENT ENTRY PERMIT REFUSED/APPROVED DEPORTATION ORDER SIGNED/NOT SIGNED LETTERS (2) SIGNED/NOT SIGNED

C.J. Hurford 27/10.85 Minister of State for Immigration and Ethnic Affairs"

1. The reference in the submission to a claim for damages is a reference to proceedings that were at one stage foreshadowed by the applicant against, at least, Royal South Sydney Hospital for negligence, presumably arising out of the treatment which he received following the injury to his finger. No such proceedings have yet been instituted. It is not suggested by counsel for the applicant that any such proceedings play any part in the application presently before the Court.

2. The reference in the submission to a reply to Mr. Michael Maher is to a draft letter from the Minister to Mr. Maher, a member of the House of Representatives, relating to the applicant. That draft letter accompanied the submission and was signed by the Minister on the same day on which he signed the deportation order. After reviewing certain matters relating to the applicant the letter said:
   
   

"I consider that sufficient evidence has been placed before me to assure myself that neither Dr Laremont's health nor his legal proceedings would be jeopardised by his removal from Australia. Of course, while these considerations play a significant role in my decision, there were many other matters to which I had regard.

The principal issue which I cannot dismiss is that Dr Laremont arrived in Australia as a visitor. His stay was authorized for two months and he has remained here illegally for in excess of five years, far longer than the maximum period allowed to visitors. Furthermore, in contradiction to the undertakings Dr Laremont gave when he sought entry as a visitor, which were accepted in good faith, Dr Laremont has worked in Australia unlawfully and sought permanent residence. A recent application by him for refugee status has been rejected."

1. The principal submission of counsel for the applicant was that the Minister, when deciding to deport the applicant from Australia, based his decision upon the departmental submission and in particular upon paragraph 26. Counsel submitted that it was inaccurate and misleading for the Department to tell the Minister that the workers compensation proceedings could be conducted after the applicant had been deported and whilst he remained in Panama. This was said to be an unreal analysis of litigation of this character because the applicant would suffer a considerable disadvantage by trying to conduct his case whilst absent from Australia. It was also submitted by counsel for the applicant that the departmental submission failed to give adequate weight to the fact that the applicant wished "to clear his name" by remaining in Australia to defend the shoplifting proceedings. It was contended that these two matters, especially the first, led the Minister to take into consideration material matters that were inaccurate and that in the result his decision to deport the applicant should be quashed.

2. Counsel for the Minister submitted that the applicant's complaint was essentially that the Minister gave insufficient weight to the difficulties which would confront him in trying to conduct his workers compensation case from Panama. Questions of weight are essentially a matter for the Minister and cannot support any ground of complaint under the Judicial Review Act. Counsel further submitted that the applicant had been given ample opportunity to place before the Minister any further material in support of his case that he be allowed to remain in Australia but he had chosen not to do so and in due course the deportation order had been made against him. It was submitted that in those circumstances he cannot be heard to complain.

3. In one sense it is correct to say that an applicant in workers compensation proceedings which are contested, as this one is, can conduct them if he is absent from Australia; but viewed in a practical light it is obviously unreal to expect a worker to prosecute his claim before the Workers Compensation Court in a case such as the present unless the applicant is himself present for examination by doctors, to instruct counsel and solicitors, to give evidence before the Court and to be seen by the presiding Judge.

4. The Minister himself obviously recognised the importance of the question of jeopardy to the applicant in conducting his case from Panama. He said that such considerations "played a significant role" in his decision to deport the applicant. Although this statement was made in his letter to Mr. Maher it is more than a mere reflection of the Minister's view conveyed in correspondence with a fellow Member of Parliament. It was a letter drafted for the Minister and placed before him together with and at the same time as the other material accompanying the departmental submission which contained the recommendation that the Minister sign the order for deportation. It is plain from the note appearing at the foot of the departmental submission and signed by the Minister on 27 October 1985 that at the time the deportation order was signed by him the statements in the letter to Mr. Maher were present to his mind.

5. Whilst the file prepared by the Department and placed before the Minister in this case is obviously fully and carefully prepared, insofar as it deals with the question of jeopardy to the applicant's workers compensation case which would be caused by his removal from Australia it conveyed a materially inaccurate impression to the Minister which played a significant role in his decision. It is a case, not of insufficient weight being given to a material matter, but of a fundamental misconception of what is admitted to be a consideration of significance. It thus constituted a failure to take a relevant consideration into account and was contrary to law.

6. There is no substance in the applicant's case in relation to the shoplifting charge.

7. This case has a long history which it is unnecessary to relate except to say that the deportation order under challenge is not the first such order to have been made by the Minister against the applicant. A considerable body of material had been placed before the Department by the applicant on earlier occasions, but it is true to say that he did not avail himself fully of the opportunity to place further material before the Department before consideration was given by the Minister on 27 October 1985 to ordering his deportation. However, the applicant's solicitor had submitted to the Department, before the Minister decided to deport the applicant, that the applicant's presence in Australia was required to pursue his workers compensation claim.

8. I repeat what I said in Smith v. Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551 at 554 about the necessity for the Court to study administrative decisions: "carefully but sensibly, and not zealously in the pursuit of error". See also Kioa v. Minister for Immigration and Ethnic Affairs (1984) 4 FCR 40 at p 50.

9. In my opinion this is an appropriate case in which to invoke the power conferred by para. 16(1)(b) of the Judicial Review Act and refer the question of the appellant's deportation to the Minister for further consideration in the light of these reasons for judgment subject to a direction that the deportation order be not executed in the meantime. The Minister must pay the applicant's costs of these proceedings including the costs of the interlocutory proceedings for a stay of the deportation order and for release of the applicant from custody.