Latu, T. v Minister for Immigration & Ethnic Affairs

[1985] FCA 419

Re: TEVITA LATU and MELE-OLINE LATU
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG 189 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Gray J.

CATCHWORDS

Administrative law - judicial review - application for stay of deportation order - whether applicant fit for travel.

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

Migration Act 1958, s. 18.

HEARING

MELBOURNE
#DATE 8:8:1985

JUDGE1

This is an application, made without notice to the Minister for Immigration and Ethnic Affairs, seeking to restrain him from deporting the two applicants, Tevita Latu and Mele-Oline Latu. Each of the applicants is a citizen of Tonga. The first applicant, who is a male, arrived in Australia in April 1983, without any form of permit to enter the country. The second applicant, who is female, arrived in Australia on 30th October 1983. She had a three month temporary entry permit, which has at no time been extended.

The applicants were taken into custody by the Department of Immigration and Ethnic Affairs on 11th July 1985 and 12th July 1985 respectively. They are presently held at the Midway Immigration Detention Centre in Maribyrnong. On 17th July 1985, a delegate of the Minister for Immigration and Ethnic Affairs made a deportation order against each of the applicants, pursuant to s. 18 of the Migration Act 1958.

On or before 7th August 1985, it appears that a decision was made to implement that deportation order by deporting each of the applicants from Australia on 9th August 1985, which is tomorrow. There is some evidence before the Court which suggests that the second applicant, who is pregnant, suffers from a difficult medical history in relation to pregnancy.

All of the evidence before me is in the form of an affidavit from the solicitor for the applicants, and is therefore on information and belief. Exhibited to the affidavit are three medical reports. The first is by a Mr. Fleming, dated 29th July 1985; this report deals with the second applicant's history of pregnancies and in particular with a pregnancy which terminated in 1984 after foetal death at approximately 21 weeks gestation. There is a suggestion in that report that the second applicant suffers from an enlargement of the spleen.

The second applicant was examined at the Midway Detention Centre by a Dr. Kunstler on 31st July 1985. The history recorded in Dr. Kunstler's report is that the second applicant has had three normal deliveries in the past, the last of which was complicated by a post-partum haemorrhage, requiring a blood transfusion. He also speaks of the two subsequent miscarriages, including that which was dealt with in Mr. Fleming's report. He details that the second applicant is pregnant. Dr. Kunstler found evidence that the uterus was enlarged to the size of a 16 weeks gestation period; this was a much greater period than the suggested period of the second applicant's pregnancy. Dr. Kunstler suggested the presence of a complicating fibroid which would explain the uterine size and various features of the previous history of the second applicant. He also expressed the view that the presence of uterine fibroids is common in women of the second applicant's ethnic group. Dr. Kunstler said that corroboration of his findings would require a urine test and an ultrasound examination. He expressed the view that, in the meantime, it could be dangerous to the second applicant's health to be extradited.

It appears that the minister caused an examination of the second applicant to be conducted by a Mr. Ross, who also appears to be a specialist in obstetrics and gynaecology. His only report to date, on the evidence before me, is a brief note dated 6th August 1985. It appears from that note that Mr. Ross conducted an ultrasound examination; he found the second applicant to be eight and a half weeks pregnant and found no ultrasonic evidence of a fibroid. He expressed the view that the second applicant was fit to travel to Tonga as planned.

Since that time, the solicitor for the applicants has had a conversation with Dr. Kunstler, who has expressed to him the opinion that the second applicant is unfit for travel because of, firstly, the indication by clinical examination that she is considerably more than eight and a half weeks pregnant, secondly, the increased likelihood of miscarriage because of the second applicant's earlier history of miscarriages, and thirdly, the apparent lack of availability of proper independent tests as to the second applicant's advancement in her pregnancy and whether or not she suffers from intra-uterine fibroids.

This opinion of Dr. Kunstler has been passed on to an officer of the Department of Immigration and Ethnic Affairs, but the applicant's solicitor has been informed that, notwithstanding that opinion, the deportation will be carried out tomorrow as had previously been indicated.

In order to obtain an order of the kind which the applicants seek, the applicants are required to show that there is at least a serious question to be tried, and that the balance of convenience lies in their favour.

Mr. Nash of counsel appeared for both applicants. In the first place Mr. Nash relied upon what seemed to me to be no more than a suggestion that the minister had reached a wrong conclusion on the facts in relation to the medical history of the second applicant. The basis of the application seemed to be that the minister ought to have accepted the opinion of Dr. Kunstler instead of that of Mr. Ross, which apparently the minister has accepted. In my view that sort of allegation would not raise a serious question to be tried and would not raise any likelihood at all that the applicants would be able successfully to review any decision of the minister.

It does appear, however, from an examination of the evidence, that the minister has not yet had the benefit of a full report from Mr. Ross. In the circumstances, having regard to the grave doubts which must arise as to the second applicant's state of health and the effect of her pregnancy and the effect of travel coupled with her pregnancy on her state of health, it seems to me that it may be seriously arguable that the minister may not have taken into account all that he should have taken into account in reaching the decision to implement the deportation order tomorrow.

In the circumstances, it seems at least arguably proper that the minister should have awaited a full report from Mr. Ross, so that he could examine the adequacy of the tests conducted by Mr. Ross for himself, and make a proper comparison with the opinion of Dr. Kunstler. Since the balance of convenience must rest heavily in favour of the second applicant remaining in Australia, especially in the light of the possibility that she may suffer some harm to her health by travelling in her present condition, it seems that I should grant the order with respect to her.

I have had a great deal more difficulty in coming to a conclusion whether I should grant the application with respect to the first applicant. On the material before me, the only thing to support the first applicant's application is the suggestion that he wishes to be able to remain in Australia with the second applicant, pending the birth of the child with which the second applicant is pregnant. It is not stated expressly anywhere in the evidence that the applicants are married, although they give the same surname, and the second applicant is described in the medical reports as Mrs. Latu. Nor is it stated expressly that the child which the second applicant is carrying is that of the first applicant. If there were proved to be a marriage, of course, the Court would presume that the child was the child of the first applicant. In the circumstances it may well be difficult to say that the desire of a prospective father to be with the prospective mother at the birth of a child should weigh very heavily with the minister.

However, the first applicant's application at this stage really depends, to a large degree, on the second applicant's application. If indeed there would be considerable difficulties with respect to her health, then it may be that the minister ought to take a fresh look at whether the first applicant ought not to be allowed to remain with her, or to travel with her in the event that she is deported whilst still pregnant. It does not appear that any great harm would be done in terms of the balance of convenience by allowing the first applicant to remain for a short period.

I have therefore reached the conclusion that I should grant an order restraining the minister with respect to both of the applicants. The order that I propose to make will be in the following terms: upon the applicants by their counsel undertaking that before 4.00p.m. on Monday, 12th August 1985, they will cause to be filed and served on the Minister for Immigration and Ethnic Affairs an application pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977, seeking orders to review the decisions of the minister or his delegate of 17th July 1985 to deport each of the applicants and the decisions of the minister or his delegate to implement those decisions on 9th August 1985, the Court orders:

1. That the Minister for Immigration and Ethnic Affairs is restrained until 4.00p.m. on Wednesday 14th August 1985 or further order from implementing the decision to deport each of the applicants.

2. That the proposed application pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977 be made returnable at 10.15a.m. on Wednesday, 14th August 1985.

3. That the time for service of the proposed application be abridged so as to permit service thereof on the minister before 4.00p.m. on Monday, 12th August 1985.

4. That the costs of this day are reserved.