Latu, T. v Minister for Immigration & Ethnics Affairs

[1985] FCA 566

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CATCHWORDS

Administrative law - judicial revlew - application for stay of

deportation order - whether applicant fit for travel - failure to

take into account relevant consideration - reasonableness of

decision - whether applicants should remain in custody.

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

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Miqration Act 1958

TEVITA LATU AND MELE-OLINE LATU V. MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

GRAY J.

16TH AUGUST 1985

MELBOURNE.

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IN THE FEDERAL COURT OF AUSTRALIA )

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VICTORIA	D STRICT	REGISTRY	)	No. VG 189 of 1985
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DIVISION GENERAL )

B E T W E E N :

TEVITA LATU and

MELE-OLINE LATU

Applicants

AND

MINISTER FOR IMMIGRATION

AND FPHNIC AFFAIRS

Respondent

JUDGE: GRAY J.

DATE: 16TH AUGUST 1985

EX TEMPORE REASONS FOR JUDGMENT

This matter first came before me on 8th August 1985. On

that date, an ex parte application was made, seeking orders

restraining the respondent, the Minister for Immigration and

Ethnic Affairs, from implementing decisions to deport each of the

applicants. On that date, I granted such an order. Certain

undertakings were given by counsel for the applicants as to the

I institution proceedings, f pursuant to S . 5 of the

Administrative Decisions (Judicial Review) Act	1977,	and the
service of such an application on the respondent.

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The matter was adjourned until 14th August 1985. When

it came on before me on that day, it became apparent that the

applicants had not complied with thelr undertaking to serve an

application on the Minister by the required time, and had not at

all served the affidavit which was before m on 8th August. The

matter was therefore adjourned for a further two days. The

applicants have now filed further affidavit material. The

respondent has also filed two affidavits.

The applicants are both citizens of Tonga. They are a

married couple. They are both prohibited non-citizens, within

the meaning of the Micrration Act 1958. The second applicant is

currently approximately ten and a half weeks pregnant. She has a

difficult history with respect o pregnancy. The applicants have

three children living in Tonga, with the second applicant's

family. In addition, the second applicant has had two previous

miscarriages, one at four months gestation and another at six

months gestation.

On 17th July 1985 a delegate of the respondent signed a

deportation order with respect to each of the applicants. At

that time it was not known to the Minister, or to his delegate,

or to anyone in the Department of Immigration and Ethnic Affairs,

that the second applicant	was pregnant.	._
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On 23rd July, the second applicant was examined by a Dr.

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Melvani, for the purpose of determining whether she was

acceptable to a commercial airline as a passenger. Dr. Melvani

diagnosed her pregnancy and certified that she was medically fit

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to undertake a journey to Tonga by air. Subsequently, the second

applicant was examined by Dr. Kunstler. His report, dated 31st

July 1985, set out the history of the second applicant's l

miscarriages and diagnosed her pregnancy. Dr. Kunstler then

found the uterus to be enlarged to the size of sixteen weeks

gestation, a much larger period than the period of amenorrhea.

He suspected the presence of a fibroid, which he said would

explain the size of the uterus and the previous history of

miscarriages. He suggested that corroboration of those findings

would require a urine test and an ultrasound examination. This

report was communicated to the Department of Immigration and

Ethnic Affairs. As a result, Dr. Ross was directed to examine

the second applicant for the purpose of determining whether she

was fit to travel by air to Tonga.

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At the stage when the matter came before me on 8th

August 1985, there was only available to the applicants a brief

handwritten note of Dr. Ross's findings, dated 6th August 1985.

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That note indlcated that an ultrasound examination had taken t ,,

place. In it Dr. Ross certified that the second applicant was

fit to travel to Tonga. On 8th August 1985, the delegate of the

Minister examined a submission and a quantity of documents, and

approved a recommendation not to	revoke the deportation order,
and to execute it immediately.

I The full report of Dr. Ross is dated 13th August 1985.

It confirms that an ultrasound examination had been made of the

second applicant. It confirms that her pregnancy was then eight

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and a half weeks, and that no fibroid was present. Dr. Ross

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concluded that, under the clrcumstances, there would seem to be

no bar to the second applicant travelling to Tonga.

The contents of Dr. Ross's handwritten note dated 6th

August were communicated to Dr. Kunstler before 8th August 1985,

and his verbal opinion disagreeing with the conclusions of Dr.

Ross was communicated to the Department of Immigration and Ethnic

Affairs prior to 8th August. A note of a conversation in which

that opinion was communicated was one of the documents considered

by the delegate on 8th August.

Since that time, on 14th August 1985, Dr. Kunstler has

conducted a further examination of the second applicant. He has

had the benefit of another ultrasound examination, as well as a

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urine test. On the basis of the ultrasound examination, Dr.

Kunstler is now unable to say that there is any likelihood of a

fibroid. He also now finds that the uterus contains a ten and a

half week foetus. He also notes that the uterus is slightly

greater in size than the period of amenorrhea. On the basis of

the urine test, Dr. Kunstler diagnosed the possibility that the

second applicant is suffering from pyelonephritis. This is a

condition of inflamation of the kidneys which may well be the

result of some long term earlier infections, and may be

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associated with the second applicant's current condition. In his

report dated 16th August 1985, Dr. Kunstler said as follows:

"It is inadvisable for Mrs. Latu to be deported, because

of her previous history, vomiting	of pregnancy, and
possible pyelonephritis."

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In an affidavit sworn on the same day, Dr. Kunstler L i ,

expressed	the	opinion that the travel involved in the proposed	I .
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deportation of the second applicant would possibly be injurious

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to the health	of both herself and the foetus. Because of the	I
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ambiguous nature of these conclusions, particularly the use of	! .~	I.
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words such as "inadvisable" and	"possibly", I took the unusual	i :
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course of allowing the applicants to call the oral evidence of	t.:
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Dr. Kunstler.
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Having heard his oral evidence, which I do not need to	I
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detail, I have reached the conclusion that there is some risk	to	!:
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the second applicant and her foetus from undertaking	a journey by	i
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air.	In	essence, this risk arises from the combination of her	P ,
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pregnancy, the vomiting associated with it, which Dr. Kunstler

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finds to be at	an	unusually	high level, and the possible	I'
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pyelonephritis. On the evidence before me there is a significant

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possibility that the second applicant may suffer, and that her

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foetus may suffer, by reason of undertaking	a journey in	a	!I .,
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commercial airliner to Tonga. Dr. Kunstler's view is that such	a	I ..
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journey may aggravate the vomiting, from which the second

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applicant	suffers, to the	extent	that	she	may suffer	some	i I
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dehydration. The effect	of this,	associated	with	possible	I:.
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pyelonephritis,	or	possible	kidney	damage,	could	in	some	l,.'
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circumstances be drastic and could lead to furthe; miscarriage. I

The possibility of further miscarriage is all the greater because of the second applicant's previous history of miscarriages.

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To the present time the Minister or his delegate has not	1 .2
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had placed before him any evidence which suggests that the second	1-
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applicant suffers from pyelonephritis, in conjunction with her

pregnancy. Nor does it appear that the Minister or his delegate

has had placed before him any evidence of an unusually high level

of vomiting associated with the second applicant's pregnancy. To

that extent, it can be said that there may be matters which ought

to have been taken Into account in determining whether to execute

the deportation order with respect to the second applicant, and

which the Minister or his delegate has not taken into account.

I should emphasize that it is no part of the function of

the Court to take out of the hands of the Minister a decision

whether a deportation order is to be implemented. This is so

notwithstanding that there might be a conflict of medical

evidence before the Minister or his delegate. It is not for the

Court to decide the questions of fact which are involved;

rather, it is for the Minister or his delegate to reach a

conclusion. It may be that, in reaching a conclusion, the

Minister or his delegate acts so unreasonably that the decision is not to be regarded as a proper one in law. It may, of course,

be that wrong matters are taken into account,	r relevant matters
are not considered.

In my view this case, at the present time, raises a

serious question to be tried as to whether the Minister or his

delegate has taken into account all matters which ought to have

been taken into account in making a determination. It has become

plain in argument that the applicants do not see themselves as

being able to make a case for review of the decisions to deport

them. No evidence has been put forward to suggest that those

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decisions are in any way subject to review. The decisions which

are of Importance in these proceedings are those concerned with

the precise date of implementation of the deportation orders. At

present there is a serious question whether some severe injury to

the health of the second applicant might not occur by reason of

implementation now.

Plainly, in such circumstances, the balance of

convenience lies heavily in favour ofestraining the

implementation of the deportation decision with respect to the

second applicant at the present time.

As to the first applicant, the position is much more

difficult. He suffers no direct danger from being deported at

any time. On the other hand, it must be recognized that he and

the second applicant are married, and that he is naturally

concerned for her condition. It seems to me, in the

circumstances, that if I am to restrain the deportation at the

present time of the second applicant, I should also restrain that

of the first applicant. Such an order is as much for the benefit

of the second applicant as it is for the first applicant. If and

when the second applicant is to be deported, then it seems that a

proper consideration of the circumstances may lead to the view

that the first applicant should travel with her. In the

meantime, such a proper consideration may lead to the conclusion

that the first applicant should be allowed to remain with her, to

assist her, and to give her peace of mind.

For those reasons, I propose to continue the order which

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was previously granted ex parte, and which was continued on

Wednesday of this week, restraining the Minister from

implementing the decision to deport each of the applicants.

A further matter which arises is the question of whether

the applicants should remain in custody, or should be released

from custody, pending the hearing and determination of their

application to review. It is put in the affidavit of the first

applicant that their release from detention would enable them to

seek adequate medical treatment for the second applicant. They

are able, so it is said, to live with the second applicant's

cousin in Deer Park, and are prepared to put up their assets in

Australia as security for their release. In my view it is

presently not shown that the second applicant would necessarily .,

receive better medical treatment by being released from

detention than she will receive in the detention centre.

The authorities, such as they are, suggest that the

Court should lean in favour of the detention of prohibited

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non-citizen5 who are the subject of deportation orders. In

!	circumstances where the applicants recognize that they will not
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be able to remain in Australia permanently, the temptation for
them to disappear may be too great. Accordingly, I do not
propose to order their release from detention.

I give the following directions and make the followlng

orders :

1. That until the hearing and determination of this

matter, or further order, the respondent is

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restrained from implementing the decision to deport

each of the applicants.

2 . That the respondent flle and serve any further

affidavits upon which he may wish to rely within

seven days of this day.

3. That the appllcants file and serve any affidavits

in reply upon which they may wish to rely within

seven days of the service of the respondent's

affidavits.

4 . That the matter be placed in the next callover list

and be given a speedy trial.

5. Liberty is reserved to any party to apply on 48

hours notice in writing to each other party.

6. The costs of this day are reserved.

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