Leung, L. v Gibbons, W.J.

[1985] FCA 72

l6 I

m THE FEDERAL COURT OF AUSTRALIA )

)

N E 3 7 WALES SOUTH REGISTRY I No. G 4 1 of 1385

GENERAL DIVISION I

IN THE IQTTER of a n a p p l i c a t i c n f o r m

Order of Revlew pursuant t o Sec t lon 5

of t h e > - d n m i s t r i t i v e D e c i s i o n s

( Jud ic i a l Rev iew) Act, 1 9 7 7 ( C t h . )

LA1 LEUIiG

A p l l c a n t

bIAYNE JULIMT GIBBONS

DELEGATE OF T E MINISTER OF STATE

FOR IMMIGRATION EnTD E T H I J I C WF.4iilS

F i r s t Respondent

AND :

-	ETHNIC AFFAIRS
I4II.JISTER FOR IklMIGRATION ? :D '
Second RespoRdent

orirjEq

Judge naklng o rde r :	Beaumont , J .
Date ordsr made:	11 March 1585.
Hherc made:	Sydney.

??P_ COURT OPDEIIS THAT:

1. App l l ca t lon d i sn l s sed . be

..

2 . AFplicant pay the r e sponden t s ' cos t s .

L.

3 . Operat lon of d e p o r t a t i o n t h e o r d e r d a t e d 11

February 1985 be suspended up t o and includlng 25 March 1985

upon the a p p l i c a n t ' s u n d e r t a k i n g t o c o n t i n u e h e r r e p o r t i r A q

on weekdays untll f u r t h e r o r d e r .

I N THE ' DERAL CO'JRT OF AUSTRALIA )

)

NEW SOUTH	WALES	REGISTRY	)	No. G 41 of 1995
)

GENERAL DIVISION )

I N THE MATTER of an appllcation f ~ r	an
Order of Review pursuant to Sectlon	5
of the Admlnlstrative Declslons
(Judlclal R-.vlew) Act, 1377 (Cth.)

LA1 LEWIG

Applicant

m Y N E JULIAIjJ GIEEOMS

EELECATE OF THE MIbiISTER OF STATE

FOR IMMIGRATION AND E T H N I C AFFAlNS

First Respondent

MINISTEX FOR IMMIGRATIOCJ =AND

ETHNIC AFFAIRS

Second Respondent

CORAM	:	Beaumon t , J .
D=:	11 MzL-Ch 1385.

REASONS FOP. JIJDGMCIIT

This is an application for an int?.rlm ztay oi 2

deportatlon order made p ocssdings in uneer the

Administrative Decisions (Juilicial R m i e w ) Act, 1977 ( "the

Judicial Reviev Act") seeking the review	of the deportatlot]
order.

2

The applicant. who was born in China, ari:*?ed in

Australia from Hong Kcng in March 1982 accompanied by her

husband and her son. Upon her arrival, she allowed a

temporary entry permit authorlslng her stay for a period of

one month. Untll recently, no attempt was made by ths

applicant to IeTitlrnate her stay in thls cauntiy.

The applicant's case both at this interlocutory

stage and in the application for final relief is sought to

be based, In the first instance, upon her personal

circumstances. In particular, she points to the facts that

In July 1983, she qave birth here to a daughter; and thet her grandmother, Chin Fong Yang, who residss in th; same

block of flats as the	applicant's famlly, needs tlie
applicant's asslstance.

On 1 February 1985, the applicant and k r family

xere taken Into custody by officers cf the Cfpartment of

lmmigration and Ethnic Affairs. On 1 2 FeL.rum;r, s€ter coEsulting a sollcitor, the applicant applied to th? Department for the grant of "rssident status" in .hstralia pursuant to s.6B(l)(ej of the Piiarstion Act, 1958.

No statement of reasons under s.13 of the Judicial

Renew Act has been solqht but in respons2 to 2 1Ztt-r

xrittm by the applicant's solicitors, the first iespondent,

by letter dated 15 February 1985, said:

3 .

"I refer to your letter of 1'1 February 1935

in which you made representatlons O!I

behalf of Mr G Mrs Leung xho are

prohibited non-cltizens.

Mr. G Mrs Leunq arrived In Australia on 2 5

March 1982 and were lssued on arrlval wlth

a temporary entry permit authorising thsir

stay for one month.

Persons applying to visit Australia sign

undertakings oversezs chat they wlll not

undertake employment whlle hsre; that they

will not seek permlsslon to settle m

Australia and m 1 1 depart at the end of

their authorised period of stay. Mr & Mrs

Leunq have not adhered to hese

undertakings and have committed offenczs

under the Migration Act f o r which they are

liable to prosecutlon.

The circumstances y u u have outlined in

your submlsslon have been considered

carefully by me. However, I am not

satisfied that either Mr Leunq or Mrs

Leunq fulfil any of the conditions of

Section 6A(1) of th? Migration Act 1958.

which is the only legal bas~s for an

application for rzsldent status for people

presently in Bustralla.

A s 14r G Mr3 Leunq did nat depart

voluntarily as they flrst indlcatsd they

would, I decided on 11 February Chat it

appropriate was to enfJrc? their

departure. Accordlngly I signed o r l e r s

ior thelr depcrtatlon."

I note that it is contended by t!\e applicant t h t

the deportation order which bears date 11 February 1984 was

prepared by the Department in anticipation of the receipt S;r

It oi the applicant's request for the ?cant of "resident

status". However the legal significance of this cont?ntion,

even If it could be established a s a mztter zf fait, ;as n ~ t

aeveloped in arqment.

4.

The applicant attacks the deportaticn older made

under s.18 of the Kicrration Act on two q r o m c s : first, that

the first respondent falled toake all relevant

consideraticns into account when maklnq h s d?cisions;

secondly, that the flrst respondent elther eserclsed his

diszretionary power in accordance with a rule or policy

without regard to t'ne real merits of the particular cLse or

eserclsed his power so unreasonably that no reasonable

person could have so exercised that power.

The present application 1 s made under 5.15 of the

Judlclal Review Act. Althouqh the respondents make no issue

of the balance of convenience, they say that the deportation

order should not be suspended because the applicant h s been

unable to make out an arquable point of substance ~n het

favour i s ? e Faincrold v. Zamnlt (1934,) 1 F.C.R. 87 at p.32).

In m:r cpinicn, the respondents' ccntenticns must be

UFileld, at this stage at lcast. No aoubt because t:?e

appllcatlon was necessarily brought forward at short notice.

apart from the letter dated 15 Februarzr 1384, there! is CO

evidence as to the matters taken m t o account or not taken

Into account by the first respondent ;?hen he decided t3 make

the deportatlon orders. No attempt was made to Eubpoena t%

relevant materla1 and no statenent of reasms under 5.13 of

he Judiclal Review Act is available.

The applicant sought to find comfort in some

observations made by [.Jllco:<, J. in Prasad v. The Minister,

unreported, 26 February 1985 where, In the context of

Judicial review of a deportatlon order challenped as

unreasonable, the learned judge held that tile Court is

entitled tc ccnslder those facts which were knom to the

decislon maker, actually or constrwtlvely, togeth2.r only

wlth such additlonal facts as the decision maker xould have

learned but fcr any unreasonable conduct by him. Eut

accepting that statement as the proper test to he adopted

for present purposes, its applicatlon m th? present case 1 s

not open, at this stage at least, because the material that

was before the first respondent 1 s not known: in Prasad,

Nilccx. J. 17as concerned with a deportation file which was

held to be ccnstructlvely before the Minister ( s e e t l s

reasons at p . 1 2 ) . X o r could it lje suiigested that thc

declslon under attack is inher?ntl;r unreasonable.

Althouqh, l n exercising the power to order

deportation utider 5 . 1 9 of ths lmation Act, the Pllnlst?r c r

his delegate is ur.der a duty to take into accomt relevmt

consideratlons and cannot execclse his discretlonary power

in accordmce wlth a rule or policy withaut regard to the

merits of the particular case (see Minister f o r Immoratizn

and Ethnlc Affairs v. Taale (1983) ,113 A . L . R . 5 5 6 ) . there is

no evidence befGre the Ccurt that the first rejpondent erred

6.

in any of these respects. The situation is simpl:~ one of an

absence of material on th3 questions raised and since the applicant bears the onus of proof, her gresent applicstlon must fall.

Reference should be made to one other matter. On

7 February 1985, the applicant wrote to the Human Rights

Commission s?ekinq its intercesslon on her behalf. She

referred in the letter to her personal clrcumstances as

justiflcation for her emaining In thls country. The

attitude of the Commission is not knom. In Arqbal v.

Minister, unreported, 21 December 1984, Lockhart, J., in

granting an in-cerim stay of a deportation order relied, to

sone extent, upon the clrcumstance that the applicant's

position had been the sub~ect of an inquiry by the Fiuman

Rights Commission ;Jhich had k e n on foct for some 1 2 months

and had not then been resolved. No attempt iJa5 made in the present case ts develop an aruument based on the Human

Rlqhts Cmmisslm Act, 1381 and for that reason. it is

unnecessary for m? to deal ;nth this aspect cjf the x a t t e r

save to sag that, at the rnorne:lt at least, the applicant's

letter to the Conmisslon is irrel?vant for present Furposes.

TL? application must be dismlssed nth COSLS.

However. In the event that the ap_nlicant may m s h to pursue

tkt? application f u r t k r , it is appropiiate that a furtk.5.r

Interim s ta :~ be ,?ranted for tkis purFcse. I ;:ill,

7.

therefore, extend the existinq stay for a further period of

two weeks upcn the applicant's undertaking to continue her

reporting on weskdays.

I make the following orders:

1. Appllcatlon be dlsmissed.

2 .	Applicant pay the respondents' costs.
3 .	Operation cf the deportatlon order dated l1

February 1985 be suspended up t o and ir.cludlnq 25 March 1995

upon the appllcant's undertaking to continue her	reportmy
on weekdays until further order.

I certlfy that this and the 6 preceding

pages are a true copy of the reasons for

judgment herein of The Honourable

Associate