Matthews, M.G. v Minister for Immigration & Ethnic Affairs

[1986] FCA 550

NOT CONSIDERED SUITABLE FOR CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW	SOUTH	WALES	DISTRICT	REGISTRY	)	No. G.474 of 1986
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DIVISION	GENERAL	)
BETWEEN:

MARY GILLIAN MATTHEWS

Applicant

- AND :

MINISTER FOR

IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

This is an application for interlocutory relief brought

in circumstances of extreme urgency. The applicant is subject to a deportation order, and is presently, I am informed, in the holding room at Kingsford Smith Airport, due to be placed on an

aeroplane at 3 o'clock this afternoon.	It 1s now twenty-five
past one.

In those circumstances, it is understandable that the

application itself is somewhat defective, but very properly no

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point is taken on the formulation of it. At any-lr-gate,.in-my

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view, it does sufficiently raise questions' under the

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Administrative Decisions (Judicial Review) Act 1977 in respect

both of the refusal of an entry	permit and the maklng of the
deportation order.

Material has been placed before me which clearly shows a

powerful balance of convenience in the applicant's favour, but of

course before I can come to that it is incumbent upon the

applicant to satisfy me that there is a serlous questlon to be tried within the well known principles of the Coarse Grams case.

The applicant has tendered two affidavits deallng with

the situation, from which it appears that she is married to an

Australian citizen and that, though apparently the parties are

not currently living together, all tles have by	no means been
severed.

The submission under which the deportation order was

made has also been tendered, together with certain of the

attachments, and it is not suggested that there are any further

attachments which would throw any light on the interlocutory

questions. It seems to me that a number of issues of law are

raised, both under s.6A(l)(b) and under s.6A(i)(e) of the

Migration Act 1958, but it is not necessary for present purposes

to consider any of them, other than an issue which is raised

particularly by paragraphs 15 and 23 of the submission which

place particular emphasis upon what is described in paragraph 15

as "a comprehensive policy on illegal immigrants".

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The statement about the policy goes on to refer to the

publlc interest in respect of "queue jumping"; the detriment to

prospective migrants of permitting persons to remaln illegally In

Australia: and to assert that the presence of such queue jumpers

is inimical to government control of migration programmes and

"their breaches of immigration law will weigh heavily against

them and when located they should expect to bear the full welght

of the law and face the prospect of deportation."

Mr. Orr, who appeared for the respondent, told me, from

the bar table, the Department's view in this particular matter is

that if the marriage is a true marriage there is nothlng to prevent the applicant applying "in the proper course", as he put it, to enter and reside in Australia.

It seems to me that a serious question is inevltably

raised as to whether there was a failure in this case to pay due

observance to the law as laid down by the Full Court of this

Court recently in Tang's case, unreported, Evatt, Davies and

Pincus JJ., 4 July 1986.	It may be that that decision is too
recent for the full impact	of the interpretation the malority of

the Full Court placed upon s.6A to have been sufficiently

appreciated. Be that as it may. doing the best I can at this

urgent interlocutory stage, I think that there is a serious

question to be tried on that basis and since, as I have said, the

case presents several unusually strong features bearing on the

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balance of convenience in favour of the appllcant, I propose to

grant interlocutory relief unless some appropriate undertaking	is
proffered.

Having regard to the time, I do not think that I should take up time discussing other issues which, in view of my decision on the issue I have discussed, It is not necessary to detail. But I will mention that there is a question in my mind whether there was a failure also to take into account a relevant

consideration in respect of the situation of the applicant's on. Certainly some aspects of the impact of the decision in relation to him were considered, but the material placed before me leaves me in the position where I think it may be queried whether any

real consideration was given to the full ramifications of the

decision in respect of him. However, as it is not necessary to do so, and I have not heard full argument in relation to that aspect of the matter, I have not come to any conclusion one way

or the other upon it.

Mr. Orr, in other matters that I have been concerned

with, when I have indicated that I was prepared to grant relief, an appropriate undertaking has been forthcoming, and where a

minister of the Crown is concerned I would act upon that. Is

this a case where that can be	done, or is it necessary to make an
order?

MR. ORR:

Yes, your Honour. I just need one minute to ensure

that I get proper instructions.

5.

HIS HONOUR:	By all means.
m. ORR:	Yes, your Honour. My client has indicated that we would be able to give an undertaking that Mrs. Matthew will not be deported today.
HIS HONOUR:	And are you able to give it in the form that she
will not be deported until further order?
MR. ORR:	Yes.
MR. BARLOW:	Your Honour, if I mlght just be brlefly heard on
that point. I am concerned, given the
circumstances. She is at the airport at the moment
and .. .
HIS HONOUR:	Well, Mr. Barlow, given those circumstances, the important thing is that we do not take up a lot of time, and the Court office has - I assume you have done enough of these cases to be aware of this - has been furnished by the Department with a list of
officers who can be contacted to ensure that urgent
interlocutory relief, when it is granted, is put
into effect. But in this case Mr. Orr is here and
has people instructing him. I would imagine there
is not going to be any great problem, but I think
it is more important that the matter be acted upon than that we take up a lot of time talking about it. Unless there is some specific matter you want added, I would be prepared to accept an undertaking
to the Court proffered on behalf of the Mlnister.
MR. BARLOW:	I have had undertakings from officials from the Department before and they have been denled in Court. This, I appreciate, is in a different
category, it is an undertaking to the Court: but I
am just still concerned about any possible room for
danger that this woman is placed on that plane.
Once she is on the plane that is the end of the
matter. If a Court order is made ...
HIS HONOUR:	What are you asking me to do, Mr. Barlow?
MR. BARLOW:	I am asking you to make an order of the Court, your
Honour, that the order be communicated to the Federal Police.
HIS HONOUR:	Mr. Barlow, I have been given a clear undertaking by someone briefed by the Australian Government Solicitor - is that right, Mr. O r r ?
m. ORR:	A solicitor with the Australian Government.

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HIS HONOUR: By asolicitor of the Australian Government

Solicitor, and I am prepared to accept such an undertaking, and I do not think it is approprlate that your submission should be put in the terms in which it was put.

MR. BARLOW:	I d o not question my friend's good faith, but perhaps if my friend could personally communicate
with the relevant officers then I would be more
than happy with the matter to be dealt with on that
basis.
HIS HONOUR:	As I have already pointed out, Mr. Rarlow, the Court has a list of people to be contacted, and there is no reason why you cannot obtain from the
Registry the appropriate name and contact him
yourself as a double check; but I have no doubt Mr.
Orr, having given that undertaking, will be having
a communication made as urgently as possible. Is
that right, Mr. Orr?

MR. ORR: Yes, your Honour.

HIS HONOUR: Very well, I accept that.

MR. BARLOW: That satisfies my question, your Honour.

I certify that this and the

preceding five ( 5 ) pages are a

true copy of the Reasons for

Judgment herein of his Honour

Mr. Justice Burchett.

&m &Q& Associate U

Dated: 17 October, 1986.