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

[1985] FCA 589

589

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Administrative law - judicial review - application for stay of

operation of deportation order - whether Minister took into account a

materlal matter which was inaccurate - whether a reasonably arguable -

case and a serious question to be tried.

Administrative Decisions (Judicial Review) Act, 1977: s s . 5 . 15

Miqration Act, 1958: S . 18

Fainqold v. Zammit (1984) 1 F.C.R. 07

SEBASTIAN HAMLET LAREMONT v. THE! MINISTER FOR IMMIGRATION AND ETHNIC

AFFAIRS

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G226 of 1985

LOCKHART J.

7 NOVEMBER 1985

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IN THE !?ELERAL COURT OF AUSTRALIA	1
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b E W SOUTH WALES DISTRICT REGISTRY. ) No. G 226 of 1985

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DIVISION GENERAL )

J - B : SEBASTIAN HAMLET LAREMONT

Applicant

AND:	THE MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS

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I ' Respondent

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MINUTE OF ORDER

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,	-	UPON the applicant personally giving to the Court undertakings that	he
shall :

j (i)	DQ all	things	reasonably	within	his	power	to	expedite	the
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i	preparation	and	hearing	of	his	claim	for	workers	compensation
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(Number 7403 of 1985) and the charge of shoplifting brought

against him, including his attendance upon medical

practitioners, counsel and solicitors; and

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(li) Keep the Minister for Immigration and Ethnic Affairs informed of the progress of those two proceedings,

THE COURT ORDERS THAT:

1. The operation of the deportation order of the Minister for

Immigration and Ethnic Affairs of 27 October 1985 against the

applicant be stayed until the final determination of the

application or further order.

NOTE:

Settlement and entry of orders is dealt with in Order 36 of

the Federal Court Rules.

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l	a n	e
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IN THE FEDERAL COURT OF AUSTR A L I A ) 1

NEW SOUTH WALES DISTRICT REGISTRY ) No. G 226 of 1985

)

DIVISION GENERAL 1

i	BETWEEN:	SEBASTIAN HAMLET LAREMONT
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I	Applicant
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AND:	.	THE MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS

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I	Respondent
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REASONS FOR JUDGMENT

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I	LOCKHART J.
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This is an application to stay the operation of *deportation

! order made on 27 October 1985 by the Minister for Immiqrdtion and

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Ethnic Affairs against Sebastian Hamlet Laremont, the applicant. The

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applicant seeks a review of the deportation order on various grounds.

but principally on the ground that, in making his decislon to deport,

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the Minister took into consideration a material matter that is said to

be inaccurate.

It is necessary to say something about the facts in order to

1 understand the case. The applicant is a citizen of the Republic of

Panama. He was born on 22 July 1942. He is a married man with two

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!	children but is separated from his wife.
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He was educated at the University of Panama where	he obtained	I '
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a degree of Bachelor of Science and later	a	degree in Medicine in	1 ;.
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February 1965. He obtained a licence to practise medicine in Panama t I,

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I	in	1967. .	In 1969 the applicant attended a medical conference	in	I '	,
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, Hawaii	and	was	invited	to	visit	Australia	by	some	colleagues.	He	1 ..
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l	later became a member of a body known as the Australian Sports	;:
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Medicine Association.
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The applicant came to Australia in 1977 with a patient for a

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short time, and he returned to this country at the invitation	of the
Australian Sports Medicine Association in 1979. His relevant entry

into Australia for present purposes occurred on 30 April 1980 when he

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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.

- In November 1983 the applicant obtained some temporary

employment as a casual labourer with Cadbury-Schweppes Pty. Limited at

Alexandria, New South Males. 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.

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

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months and on one view of the evidence suffered	a	permanent partial	.-
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disability.	- . , *
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On 4 June 1985 proceedings were commenced on his behalf in

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the Workers Compensation Court of New South Wales (Number	7403	of	i
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1985).

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For the purpose of those proceedings the applicant was

I examined by a number of medical practitioners and it may	be necessary	,.,
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for him to have further medical examinations for the purposes of his

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case. Indeed, arrangements have been made for medical examination of

the applicant by nominated medical practitioners later this month.

An application has been made to the Workers Compensation

Court for expedition of the applicant's claim and that application is

I listed for hearing on Monday next, 11 November 1985, before the Chief

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,	Judge of the Workers Compensation Court. There is evidence before me
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that if that application succeeds then the hearing of the applicant's '. ,

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claim for workers compensation may be heard by mid-December; and it .-

may result in an earlier settlement following the invocation of

I certain pre-trial conference procedures which I understand that Court ! -1

adopts.

It is not for this Court, of course, to attempt an assessment

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of the applicant's prospects of success in those proceedings but the

evidence before me suggests that the claim is at least seriously

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arguable.

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The applicant wishes to be in this country for the purpose of

prosecuting his workers compensation case because it may be necessary,

as I have said, for him to be further medically examined and to give evidence himself before the Court. It is obvious that the absence of the applicant from the jurisdiction may place him at a material

disadvantage.

Tiie 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. It is to be mentioned again on 2 December

1985. There is evidence before me as to the future course which those

proceedings may take and I will say little about it for present

purposes except that it appears at least possible that those

proceedings will not be prosecuted further,	so that their fate may
well be known early in December this year.

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Counsel for the applicant informed the Court that the

applicant is prepared to offer undertakings to the Court if the

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I	execution of the deportation order is stayed, including an undertaking
!	that the applicant will leave the country of his own volition and at
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his own expense to return to the Republic of Panama upon the
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conclusion of the hearing at first instance of his workers
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1	compensation claim and the proceedings before the Local Court for
shoplifting. This is said to be subject, however, to appropriate
i	medical advice being given to him at the time that he is fit to travel
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to Panama. He also proffers an undertaking that he will do all that
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,	is reasonably within his power to expedite the preparation and hearing	.	L	:
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of his workers compensation claim and the shoplifting case. Certain	, :
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other undertakings have been offered which are not relevant for	..,
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present purposes.	.,

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The principal submission of counsel for the applicant is that	, -
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the Minister, when deciding to deport the applicant from Austral-ia,

, based his decision upon the departmental file which was before him and '11

which Included paragraph number 26, which reads as follows:

"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

I Australia p rs e worke s required in to

Compensation or an action for damages, If the

latter eventuates. To this end any further medical

1 evidence specialist or reports, even with the

* assistance of Australian Embassy or Consular Staff,

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I	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 reference in that paragraph to proceedings for the claim for

damages is a reference to proceedings that were at one stage

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I	foreshadowed by	the applicant against, at least. Royal South Sydney
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,	Hospital for negligence, presumably arising out of the treatment which
l	he received following the injury to his finger. It is not suggested
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'	by counsel for the applicant that any such proceedings play any part
'	in the application presently before the Court. No such proceedings
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I	have yet been instituted.

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In addition, there is, in the material before the Court a

' letter from the Minister to another member of the House of

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Representatives relating to the applicant written on the same date as

the date on which the deportation order was made. 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 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."

In .one sense it is correct to say that an applicant in

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workers compensation proceedings which are contested, as this one is,

can conduct those proceedings if he is absent from Australia; but

viewed in	a practical light it is obviously unreal to expect a worker	:.-i
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to	prosecute his claim for workers compensation before the Workers	<:.
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Compensation Court in a case such as the present unless the applicant 1 _!

is himself here for examination by doctors, to instruct counsel and : I

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solicitors. to give evidence before the Court and be seen by the	'l<
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presiding Judge.	;i;
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-..-ln-..-_-I,-,-.---_-.rl_l--.l-------.,".,-1_.-3 , ~ (d.'

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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 considertions played	"a significant role"
in his decision.

Whilst the file prepared by the department and placed before

the Minister in this case is obviously fully and carefully prepared,

in so far 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 may have presented a materially inaccurate impression to

the Minister. I emphasise the word "may" because it is not the task

of this Court on this application to decide that question finally.

It is my task to determine whether the applicant has

established that he has a reasonably arguable case and that there is a

serious question to be tried. There are many authorities which

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consider that proposition but it is sufficient if I refer to the

decision of a full court of this Court in Fainqold	v. Zammit (1984) 1
F.C.R. 87.

In my opinion the applicant has established such a case. I

say nothing about the final outcome of the matter because it would be

inappropriate for me to express any such opinion and, indeed, I have

none.

I am mindful, of course, in dealing with these applications,

of the importance that must be attached to the fact that the applicant

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is illegally in this country and has been here illegally for over five

years. Also, I am mindful of the other matters to which the Minister

has referred in the letter to which I mentioned and which are set out

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in the submissions from the Department to him upon which he made his

decision to deport. I have taken all those matters into account.

In all the circumstances I .think the proper order to make is

to stay the operation of the deportation order until the final hearing

of the substantive application for review or further order. It is

open to either the Minister or the applicant to restore the matter in

the meantime if circumstances arise requiring a reconsideration of the

stay.

I am also conscious of the proffering of undertakings on

behalf of the applicant, broadly along the lines I have mentioned. I

propose now to ask counsel for the applicant to formulate precisely

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the form of undertaking that is offered with a view to ensuring

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expedition of the two sets of proceedings to which I have referred.

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I do not think in the circumstances I should accept an

undertaking that has been proffered that he applicant will

voluntarily leave the country upon certain events at his own expense.

It may be, of course, that events will so turn out and he will take

that course; but he is subject to a deportation order which is valid

unless the Court decides otherwise.

I shall make one final observation, namely, that it is not

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for this Court to intervene in the processes of the Workers

Compensation Court or the Local Court. Whether the workers

compensation case will be expedited or not is entirely a matter for

the Workers Compensation Court. No doubt both those Courts will be

conscious of the fact that the applicant remains here illegally and

that he stays here having the benefit of the order of this Court

staying the operation of the deportation order. They will also be

mindful of the fact that he is proffering undertakings as to

expedition of those two sets of proceedings. What weight those Courts

give to these matters is, of course. a matter for them.

I certify that thls and the

preceding pages are a

Reasons for Judgment herein of his Honour