Laremont, S. v Minister for Immigration & Ethnic Affairs

[1986] FCA 495

NOT CONSIDERED SUITABLE FOR CIRCULATION

IN THE FEDERAL COURT OF AUSTR?UIA	)
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NEW SOUTH WALES DISTRICT REGISTRY	1 No. 470 of 1986

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GENERAL DIVISION 1

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BETWEEN: 1:

SEBASTIAN HAMLET

LAREMONT

: Applicant

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MINISTER FOR

IMMIGRATION & ETHNIC

AFFAIRS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

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BURCHETT J.

In this matter the applicant entered Australia on 30 l ..

April 1980 and was granted a temporary entry permit for a period

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of two months. Since then he has been here as what is now, under

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the legislation currently in force, described as	a	prohibited	.	,'
non-citizen.

On 17 July 1985 a deportation order was made. On 16

August 1985 a review of that order was sought through the Court,

and on 12 September 1985 an application was made that

e be found

to be entitled to refugee status.

of refugee status on 3 0 September

being found to have that status.

FEDERAL COURT OF

2.

On 27 October 1985 the deportatlon order made in J u l y

was revoked. The question of the issue of a temporary entry

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permit, at that stage, was considered, and it was decided that it

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should be refused, and a further deportation order was made. On

6 December 1985 Lockhart J. ordered that the matter be referred

back for further consideration, for reasons which were

substantially concerned with a failure, which his Honour found

had occurred, to take account of a relevant consideration. That

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relevant consideration related to the applicant's need to be in

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Australia, in the then near future, for the purposes of a workers

compensation claim which he had made. Lockhart J. ruled that

this consideration had not been properly put to the Minister, and

that what had happened in connection with It amounted to a

failure to take it into account in an appropriate way.

The workers compensation proceedings were concluded in

December 1985, but they led to further proceedings in the

District Court in February of this year, and the enforcement of

deportation was delayed for reasons, at any rate which included,

permitting finalisation of the District Court proceedings which

were indeed finalised in February 1986.

At least twice during the year 1986, the applicant's

solicitors were invited to make further representations or

submissions in relation to his case. No further submission was made, in relation to the issue of refugee status, until very

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'recently, nor was the question of refugee status raised as an

issue in the proceedings before Lockhart J., although it had

previously been raised, as I have said, and determined against

the applicant. No suggestion was made in those proceedings that

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any error reviewable	by the Court had occurred in relation	to the	L .
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determination of that question.

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On 26 September 1986 a deportation order was again made,

and it was served on 3 October, when the applicant was taken into

. custody. On 15 October he made a further application for refugee

status, and on 16 October he was interviewed in relation to that

application. On the same day, a decision was made by a delegate,

Miss Phi, in the following terms:

"The case was fully assessed by the Committee

on the Determination of Refugee Status. I

have examined a report provided by Mr.

Collins and cannot deduce from it any grounds

l	which provide new or substantial information for consideration. The applicant does not
have a well-founded fear of persecution in
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terms of the refugee convention. His
conflicts with the Panamanian Consul appear to be personal in nature, and not directed to his refugee claim. I see no ground for delaying his departure from Australia, given
the additional information he has provided."

A letter notifying the applicant was sent on he same day.

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The application which is before me. seeks relief against

the deportation order and the denial of refugee status, and I

have been moved to grant relief upon an interlocutory basis under

it. It does not refer to the Administrative Decisions (Judicial

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Review) Act 1977, but I have been told by counsel that the application is brought in reliance upon that Act, and its grounds are, as set out in the application:

"1.	That the applicant is a person who, if returned to the Republic of Panama, would
be a person subjected to a threat to his
life and liberty:
2 .	That the applicant is a person who and
whose family, if he is returned to the
Republic of Panama, would be subjected to
harassment. "

The claims, as originally formulated, were for an order,

firstly, that the deportation order be revoked: secondly, that

the respondent, his delegate, servants or agents be restrained

from proceeding with the deportation order pending determination

of the applicant's refugee status: and, thirdly, that the

respondent be restrained from detaining the applicant pending the

determination of the applicant's refugee status.

I permitted an amendment reformulating the claims as

follows:

"1. An order that the deportation order be

revoked:

2. An order referring the application by the

applicant for refugee status and the

additional material brought before the

Court to the Minister o his delegate for I

reconsideration: r

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3 . An order that the r spondent be

restrained from detaining the applicant

pending the reconsideration of the

application for refugee status by the

respondent. "

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5.

The first question is whether there is a serious

question to be tried, or, as it has been suggested in one or two

decisions, whether in all the circumstances justice requires a

grant of interlocutory relief. Without attempting to reach a

conclusion as to which of those formulations more accurately

describes what I am required to do, I am content to subsume both

of them under the heading of a serious question to be tried, and

by that expression in this Judgment I am comprehending the

application of each test, so that to the extent that there may be

any difference the applicant has the benefit of each of them in this judgment. Having regard to the urgency of an application of this kind, I do not think that it is appropriate, if a ground for

relief appears, that the Court should be overly technical about

the form of the application. It must not be forgotten that the

jurisdiction of the Court is to exercise supervision over the

fulfilment of legal requirements - not, as the Administrative

Appeals Tribunal can do in cases where applications lie to it, to

review the decision on the merits.

Here the legal grounds suggested are really two.

Firstly, reliance is placed on the principles of natural justice

applicable to such a decision under Kioa's Case 62 A.L.R. 321.

As Fox J. said in Sinnathamby's Case, 66 A.L.R. 502 at 506:

"The effect of Kioa is that while the

Department is obliged to accord natural

justice when acting under S 18 of the Act, the extent of the requirement is conditioned

by the particular facts in each case."

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6.

In the present case, over a period in excess of a year, the applicant has been on notice that he could imminently be

deported. He has had solicitors acting for him and access to

counsel. He had applied for refugee status and his claim had

been rejected. He had every opportunity to put further material

before the Department, and to renew the appllcation which	he knew
had been so made and rejected.

It seems to me it was clearly open to the decision maker

to take the view of the facts that the applicant was not entitled

to refugee status, and that any difficulties he was having in

respect of his passport did not, in all the circumstances,

provide a reason for delaying further the already long-delayed

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deportation of the applicant as a person illegally In Australia.

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If his fears are not well founded, there is no reason why the

Department should not have taken the view that he should have

returned to Panama, upon being unable to obtain other travel

papers. He has very greatly exceeded the period reasonably

inherent in his previous undertakings, and in the basis on which

he was permitted to delay his departure. It is conceded that

there is no evidence that he has told the Department of his passport difficulties, and made representations regarding those difficulties, or sought assistance in obtaining travel documents

appropriate to enable him to comply with undertakings operative

since about last February.

The Department invited representations more than once.

Fairness requires that the applicant be given an opportunity to

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put matters on which he relies, but that opportunity has been given, and repeatedly. In the course of argument on the	i
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applicant's behalf, counsel on a number of occasions put the	..
rhetorical question: Why has the Department not considered these

things? The answer seems clear. The Department has on the

evidence considered what has been put to it, and has in writing

invited the submission of any further matters. The suggestion

that counsel made that the Department had ultimately shown

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indecent haste, when considering the last minute further

application for refugee status, seems to be quite unreasonable. had not been made, and was only made when the prospect of deportation was imminent. It seems to me that the Department, on

the evidence, acted reasonably in the manner in	which it dealt
with it at that stage.

It was also put that there had been a failure to take

account of a relevant consideration, but I do not find that there

was a serious question raised of any relevant consideration that

was put before the Department and not considered by it. In the

I	circumstances of this case, I do not think that any of the matters raised now in evidence, which it was suggested may not have been considered, could have been regarded as a matter the
Department was bound to seek out for itself, in the absence of a
submission being made when invited.

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I do not flnd a serious question to be tried that there

has been in fact any failure to take account of any relevant

consideration, or any denial of natural justice. Emphasls was

placed, in the submissions on behalf of the applicant, on an

alleged lack of formal material from Panama regarding the

termination of what was referred to as a mission in Australia for

the Panamanian Government, undertaken by the applicant. But the

only relevance suggested of this material was an inference of a

threat to him, warranting a grant of refugee status. I do not

see how that arises, nor can I conclude that the evidence makes out a serious question to be tried that there is o r has been any

such threat. In any case, the appllcant has had a full

opportunity to present evidence on that aspect, and his clam has

been rejected by the decision maker. I see no error of law in

the manner of its rejection. No evidence has been given of any political involvement, or other matter relevant to a refugee status. The applicant contented himself with quite vague general

statements about conditions in Panama, and inferences which he

said arose from his difficulties in obtaining a passport.

I see no reasonable basis for these contentions, but in any case they were matters to be put to the Department, and much

of the material now relied on was: and insofar as any was not, it

could have been had the applicant chosen to submit it.

Accordingly, on the basis that no serious question to be tried

arises, I refuse the application.	Is there any application for
costs?

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MISS BEAZLEY: I make an appl lcat ion for cos ts , your Honour.

HIS HONOUR: DO y o u h a v e a n y t h i n g t o s a y a b o u t t h a t . Mr

Coombs?

MR COOMBS: NO, I have nothing to say, your Honour.

H I S HONOUR:	Very	w e l l ,	the	appl ica t ion	is	refused.	with
cos ts .

I c e r t i f y t h a t t h i s and t h e

preceding eight (8) pages are

a t r u e copy of t h e Reasons f o r

Judgment here in of h i s Honour

M r . Just lce Burchet t .

& H&* Associate

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Dated: 22 October, 1986.

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