MacMillan, R. v Eyles, P.B

I N THE

FEDERAL

COURT

AUSTRALIA

AUSTRALIAN CAPITAL

TERRITORY

DISTRICT REGISTRY

GENERAL l3IVISION

BETWEEN :

RONALD VAICMILLAJ

Applicant

AND :

?ETEH BEIAN EYLES

Respondent

O R D E R

JUDGE W I N G ORDER	:	Meaves J.
DATE OF ORDER	:	25 March 1985

WERE MADE

: Canberra

THE

COURT

ORDEXS

THAT:

The

motion

for

a stay of executlon Of the

deportation	order	dated	7 February	1985 be
dismlssed.

2.	The appllcant pay the respondent’s costs	of and
incidental to the motion.

IN THE FEDERAL COURT OF ATJSTRALIA

i )

AIJSTRALIAN CAPITAL TERRITORY

)

)	No. ACT G 10 of 1985

DISTRICT REGISTRY

) )

GENERAL DIVISION

)

BETWEEN

RONALD MACMILLAN

Applicant

AND :

PETER BRIAN EVLES

Respondent.

U:	25 March 1985

This is

a motlon on behalf of Fonald Macmlllan ("the

applicant") for an prder stayina a declsion of Peter Brlan

Eyles ("the respondent") as a deleqate of the Mlnister of State

for Immigration and Ethnlc Affalrs made on

February 1985

under s.18 of the Micrration Act

1958 that the applicant be

deported from Australia.

The deportation order was served on

the applicant on

13 February

l 9 8 5 and

on 2 0

February 1985 an

appllcatlon was

filed

this

Court

on his behalf

under

s .5

the

Adminlstratlve

Declslons (Judicial Review)

Act

1977

("the

Judlcial Review Act") for an

order of revlew ln respect of the

2 .

decision of the respondent to whlch I have referred. '&en

the

motion came on for hearinq

on 2 2 March 1985 the Court was

lnformed that the appilcant was ln custody at Fremantle and

that he was to be deported from Australla on

25 Harch 19R5 at

4.15 p.m.

Western Australian tune. The moclon seeks an order

staying the execution

of the deportatlon order pending

the

hearing and determlnatlon

of the

appilcation for an

order of

revlew under t'ne Judlclal Revlew Act.

There 1 s no doubt as to the Court's power to make such

an order

In W approprlate case: sub-s.l5(1)

of the Judlcial

Revlew Act and 5 . 2 3 of the Federal Court of Australla Act 1976.

The test to be applied In determining whether rellef should be

(panted under sub-s.15(1)

of the Judlclal Revlew Act has been

considered by Bowen

(3.J. ln Colllns 'I. Mlnlster for Immluracion

and Ethnic Affairs !unreported) - 26

November 1992). by Keely

J. in Perklns v. Cutinill (1981) 34 A.L.R.

669 and by Nqrthrop

J. and a

Full Court of this Court In Famcrold v . Zammlt..

The

declslon of

Northrop J. is not reported: the decislon

of the

Full Court is reported (1984) 1 F.C.R. 87.

In Perkins v . Cuthill Keely J. said, at p.671:

"In my

opinion s.l5(l)(a) requires

an appllcant to

satisfy the court that reasons or clrcumstances

exist which make it just that the court should make

the order sought, but It is

not necessary for the

applicant

show

hat

those

reasons

circumstances

are

any

sense

'special'

'exceptional'.

Of course

the discretion must be

exercised ~udicially

and not arbltrarlly."

Northrop J. in Fainuold v. Zammlt thought that the appropriate tevt was that expounded by Gibbs C.J. In The Australian Coarse Grain Pool Ptv. Ltd. v. m e Barlev Marketinq Board of Queensland (1982) 57 A.L.J.R. 425 in decldmg whether an Interlocutory in~unctlon should be granted - that 1 s to inqulre

whether there

1 s a

serious question to

be trled and then to

determine the matter of the balance of convenlence.

On appeal

from the declsion of Nort'nrop

J. the Ful l Court. sald. at p.92:

"In our oplnion

wlil be

difflcuit

for

applicznt to show that reasons

circumstances

exist which make It ?ust that the csurt should make

the order sought unless

it 1s demcnstrated that the

applicant has a Fomt of substance to argue whlch,

1: successful.

wlli

result

m judgment

hls

favour.

In thls respect It does not appear to us

that the two tests

are, in practical terms, very

aif f erent

No different test

is to be applled under

s . 2 3

of the Federal

Court of Australia Act 1976.

The grounds set out m the application for an order of renew under the Judlcial Review Act

are -

(a)

that a breach of the rules of natural lustlce occurred in connection wlth the

making of

the

decision

that

the

applicant be deported; and

(b) that the making of the

declslon was an

Improper exercise of the power contained m s.18 of the Mlcrratlon Art 1958 in that the respondent failed to take lnto account relevant considerations and took lnto account irrelevant conslderatlons.

?articulars

of the above ?rounds were ulven In the

appliation. At

the

hearin?

the

present

motlot?

It was

foreshadowed

that.

the

hearlnq

the

substantlve

application, the applicant would seek

to rely on addltlonal

particulars and on two additional

grounds, being -

!c)	that, the decision lnvolved errors of law
as to the interpretation of s.6A ar.d sub-s.l6(1) of the Mioratlon Act 1958;
and

(d) that

there

was

no evldence or

other

material to justify the makina of the	.
decision.

In support of

the motion, the appllcant relied

on the

affidavit of Richard Christopher Refshauge sworn

14 March 1985.

Mr Refshauqe is the appllcant's solicltor.

He deposed that,

although he had received extensive wrltten instructlons from

the applicant, he had been unable to have an affldavit sworn by

hlm. Annexed to the affidavit was a draft of an affldavlt

which he had prepared In accordance wlth the Instructions he

had received.

Pjo explanation

was

offered

as to why an

affidavit could not have been obtained

from the appllcant prior

to the hearing. Also annexed

EO Mr Refshauge's affldavit was a

document. he had recelved from the respondent belng

a copy of a

submisslon dated

7 February 1985 made to the respondent prlor

to the making of

the decislon

that the applicant be deported

from Australia and upon which

that declsion was made.

An objection by the respondent to the use

of the draft

affidavit as provlding proof of the matters set out thereln

was

upheld.

I have, however, t&en it

into account as lndicatlng

the sub~ect matters upon which tine appllcant would wish to adduce evlrlence on the nearln? of the substantlve appllcatlon. hlether such evldence Qould be admissible on the hearing of

that appllcation IS not a matter that need

now be addressed.

The respondent relles on the two several affidavits of Andrew John Everard sworn respectively

20 and 22

March 1985.

Annexed to the first

of those affidavits are copies of the

deportation order and of the submission dated 7 February 1985,

together wlth

its annexures, whlch was before the respondent

when he made the decision under challenge.

The decislon that

the applicant be deported from

Australla was made on two grounds each of which is independent of the other. Both grounds involve the applicant being deemed to be a prohlbited non-citizen by virtue of sub-s.l6(1) of the Miqration Act 1958. The first uround relied upon, whlci.. is

based on sub-paragraph

16(l)(b)(l) of the Act, is that -

. at

he t m e of h.-s entry lnto Australia on

Decemoer 19R2. he was not an Australian cirlzen;

he was a person who, at the tlme of that entry,

produced to an offlcer, in respect

of that entry,

a return endorsement that was obtained by false

representation: and

. he was not the holder of

an entry permit endorsed

wlth

a stat.ement that

the person grantlng that

permit recognised him

to be a person referred to

in sub-s.l6(1)

of the Migration

ACE 1958.

The second

uround,

whlch

IS based on sub-paragraph

16(l)(c)(iii) of the Act, IS that -

. at the time

of his entry lnto Australla

on 12

December 1982, he was not

an Australian citizen;

7 .

. he was a person who, at the time

of that entry,

had been convlcted

two or more crlmes and

sentenced to

mprisonment for periods aqgregatlng

not less than one year; and

he was not the holder of an entry permlt endorsed

with	a statement that the person granting that

permlt recognised him to be a person referred to

rn sub-s.16(1) of the Miaratron Act

1 9 5 8 .

In support of the motlon for a stay

of executlon of

the

deportation order, counsel for the

applicant

relled

principally

three

matters.

First,

he said

that

applicant did not fall withln sub-paragraph 16\1)(b)(i) of the Mlqratlon Act 1 9 5 8 and that there was no evlaence before the respondent or before che Court to establish that the provlslon

applied.

referrep to Naumovska v. Minister for Immlqration

and Ethnic Affairs

( 1 9 8 2 ) 41 A.L.R. 635 at p.643.

Secondly, it

was

sald

that

a conslderation of the

submlssion

dated

February 1985 upon which

the respondent made the impugned

decision demonstrated that the respondent

had Improperly based

his decision upon

an earlier decision to deport the applicant

made by another delegate of the Mlnister

for Immlgration and

Ethnic Affalrs.

Thirdly,

it was submltted that there had been

a denial of naural justice.

In relation to tne thlrd

submission, the appllcant has

not demonstrated thaE he nas an:7

pcict of substance to

arque

whlch, If

successful, wlll result

In Judgment in his favour.

The material that was Sefore the respondent

at the tlme the

decislon was made included records

1r.tervlesJs wlth the

applicant by officers of the Department of Inmigratlon and. Ethnic Affairs on 9 Sept?nber 1983 aria 5 October 19E4, records of interviews wlth the applicant's wife on 22 September 1983, 1 Map 1984, 18 June 1984 and I! October 1994 ar.d several letters wrltten by the appllcsf?t to the Cepartsent dated respectlvely 19 September 1983, 20 September 1983, 29 September 1983 and 7 October 1984. Assum-nq, contrary to a number of authorltles ln the Xigh Court and in this Court, rhat the applicant may I?. a

case such as this rely an

tine vlew thar; the rules of natural

justice apply, It

cannot, I think, be seriously contended that

the appllcant did not

have

ample opportunlty to place before

the respondent whatever

' material he consldered relevant to the

question whether

he should be deporced

from Australla.

In support

of the second

of the above contentlons

counsel

relled

upon

references

the

submission

dated

February i985

to the respondent to the clrcumstance that on 5

December 19R4 Mr L.B.

Woodward, a deleqate of the Mlnister for

Immigration and Ethnlc Affairs, had made

a decision

that the

applicant be deported from Australla.

It was submltted

that

the mere fact that thls circumstance had been disclosed to the

respondent was sufficlent

to vltiate his

declsion. Reference

9 .

was made to Collins

v. Minlster for Immlaratlon and Ethnic

Affairs (1981) 36 A.L.R. 5 W .

In my opinion thls argument

has no reasonable prospect

of success.

The references to the declslon made by

Mr Woodward

were necessarlJ because the respondent was belng asked to revoke

that declslon and to conslder the matter afresh. Indeed,

the

submisslon refers to the institution

of proceedlngs in thls

Court und?r the JudicTaI Renew Act following the service upon

the applicant

of the deportation order slgned by

Mr ‘N‘oodwarci

and to che advice given to the

appllcant’s sollcltors that no

further actlon would be taken under that deportatlon order and

that the matter would be considered

afresh taking into account

the matters that were referred to 1n

the appllcatlon f-Lled In

those proceedlngs. There

1 s nothinq In the material before the

Court to suggesc that the respondent dld not consider the

matter for himself. Cdllins

v. Minlster for Immluration and

Ethnlc

Affairs

( upra)

concerned

a different

set

clrcumstances.

I turn

now to the submlssion that the applicant dld

not fall within sub-paragraph

16(ll (b)(i) of the Misratlon Act

1958.

1 s common ground that the applicant is a citizen

the United Kingdom and that he first entered Australia

on 14

June 1978. Attached

the

materlal

that was

before

the

respondent

was an applicatlon to the

Department

dated

November 1978 signed by

the applicant seeking evidence

10.

resldent status

In Australla.

The applicatlon set out his

name, partlculars of

birth. details of his entry to Australia,

his residentlal address and passport detalls.

The appllcatlon

contained the following

"I.

the applicant, declare that

the

details above

are trlle and correct. and that I am a resident of Austcalla holding authorlty to rernaln ln Australia

without llmltatlon as

to time lmpcsed by law."

A return endorsemenL was qranced to the appircant who

celled upon It when returning to Australla

on some i+ occasions

between November 1978 and i':

December 1982, the date when he

last entered Auscralia; The basis of the declslon made by the

respondent that the jpplicant fell within paragraph

16(l)(b)(1)

of the

Micrration Act, 1958 1 s that the statement set out above

was false, the applicant

at the time having

authorlty to

remaln In

Australia without limltation as to tune lmposed by

law and that the lssue'of the return endorsenent was obtalned by that false representatlon. In support of thls conclusion

the

respondent

relied

the

statements

contained

the

materlal before him that the appllcant entered Australla on

June 1978 as a visitor and was granted

a temporary entry permit

for one week and

that no further temporary or other entry

permlt was granted to him prior to 8

November 1978. Although

the copies of the handwricten correspondence received

the

Department from the applicant is difficult

o read, I have been

unable to discern in lt, or in the records of Interviews

wlth

the applicant

- and I was not referred by counsel

to any

11.

relevant passages - any macerlal whlch casts doubt on the

correctness of those statements.

Nothlng in the materlal that was before the respondent

In any way supports

a conclusion that there 1s a matter of

substance to be

argued on the substantive appllcatlon that

the

concluslon

reached

the

respondent

was not ~ustlfled.

Further, If It be,

as the apFlicant contends (tb-ough I express

no oplnlcn on the polnt), that It would

be a matter for the

Court to determlne on the

substantive appllcation whether he

fell within

the provislons of

the st-cute relied upon by the

respondent to support

hls declslon, I am not- convinced that

there 1 s a sufflciently arguable case to warrant the grant

of a

stay

In exerclsing m:7 d~scretzon

whether to grant a stay of

execution I have al.so had regard to the addltlonal ground

relied on the respondent based

on paraqraph 16(l)(cl of that

Act and to the circumstance that nothing

has been put

to the

Court to warrant the concluslon

that there is a matter of

substance to be argued in relation to that ground.

I should also notlce a submisslon

by counsel for the

applicant that

a stay of execution of the deportatlon order

should be granted because the appllcant

is qualified to apply

for an

entry permit under s.GA(b) of the Pliqration Act

1958.

Such an

application has

apparently been made but

was not

made until after the present proceedlngs were lnstituted. Its

existence can, therefore, provlde no basis for an attack on the

validity cf the decislon to deport. In any event It appears

that the respondent in fact save conslderatlon tc the question

when making his decision.

m e motion for a stay of execution of the deportation

order 1s dismissed. The applicant must pay	the respondent's
Cost5 of the motlon.

I certlfy that this and

the preceding 11 pages are

a true copy of the Reasons

for Judgment herein of tine

Honourable Mr Justice

Neaves.

Dated: 25 March 1985

[1985] FCA 102

25 Mar 1985