Mendoza, R. v Minister for Immigration, Local Government and Ethnic Affairs

[1991] FCA 586

F E D E W COURT OF AUSTRALIA)

S DISTRICT REGISTRY) N o . NG 392 of 1991

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Between: BppoLFO HENDOZA

Applicant

And :

GOVERNMBNT AND ETHNIC

BpFAIRS h ANOR

Respondents

lsxmwu SYDNEY -

There is before the Court a notice of motion and an application brought by the applicant Rodolfo Mendoza against the Minister for Immigration, Local Government and Ethnic Affairs and the northern regional manager for New South Wales of that minister's department, Mr John Davidson. Mr Mendoza has been in Australia since some time in 1985; for most of that time he has not been in possession of any appropriate permission to remain here.

made by or on behalf of the respondent minister, Mr Mendoza	has been subject to a deportation order to return to the
A decision was made yesterday, 17 July, by Mr Davidson, as delegate of the respondent minister, refusing an application by Mr Mendoza for some type of entry permit or other permission to remain in Australia. Whatever the nature of the appropriate permit or licence sought and rejected, it seems quite clear that it was, and remains, Mr Mendoza's intention to seek permanent residence in this country.
The Migration Act requires, as a pre-requisite of permanent entry, that a person be the holder of a valid temporary entry permit of one or other category provided for in the Act and regulations. It was therefore necessary, before he could pursue his desire to remain here permanently, that he first obtain such a permit. Mr Davidson's decision of yesterday was to deny him that necessary pre-requisite to permanent entry.
By reason of undertakings given to the Court in previous proceedings and various other administrative occurrences in the meantime, it appears that Mr Mendoza has given or is bound
today to give himself up to the departmental representatives
and return to the custody of the department from which he was
released by order of Mr Justice Davies on 25 June. At the time of this hearing, which is after 5 pm on 18 July, counsel appearing for Mr Mendoza and his instructing solicitor are not completely aware whether he has as yet been taken into custody by the department, but it seems likely that if it has not already happened, it will occur shortly.
The notice of motion, as amended from the bar table this afternoon to reverse the matter of the applicant's possible present custody to which I have just referred, seeks in effect two orders. One is that there be an injunction restraining the respondents from deporting the applicant pending the determination of his application, and I shall outline in a moment what the application is. The second is that an injunction be pronounced either to restrain the respondents from taking Mr Mendoza into custody or to release him from custody upon various conditions as to residence and reporting.
I am informed that the conditions proposed are the same as or
similar to those which were imposed by Mr Justice Davies on 25 June. There seems to be no dispute that they have been kept by Mr Mendoza since that time.
The purpose of the interlocutory injunctions of the kind to which I have just referred is to support an application under section 39B of the Judiciary Act or under the Administrative Decisions (Judicial Review) Act, seeking to review Mr
the decision-maker erred by not giving appropriate Davidson's decision made yesterday. The application says that
consideration, or in failing to consider the entitlement of the applicant, to an entry permit. Although three different headings are used, they all turn on one particular concept. Effectively, this is that Mr Mendoza has become so important to his employer and his employer's business that there would be what regulation 131A of the Migration Regulations calls "irreparable prejudice or extreme hardship caused to an
Australian citizen" if he is deported or, more correctly, if he is refused permission to remain in Australia. The Australian citizen concerned, as far as I can see from the short access that I have had to the papers in the matter, is a man named William Gale who appears to be the principal figure in the business which employs Mr Mendoza, but there is also another person mentioned in the papers who might also come under the heading of an Australian citizen to whom these disastrous consequences will apply if Mr Mendoza is not given permission to remain.
The application attacks the decision of 17 July on the grounds that relevant considerations were not taken into account, that the decision was unreasonable within the meaning of that term in the Judicial Review Act, and that the decision-maker erred in law in failing to consider relevant issues.
The respondents oppose the notice of motion. A preliminary or threshold matter, which they actually raised not at the
threshold but as they were "pulling out the back door", was
that the Court has no jurisdiction or power to make, in the
sense of entertain, any of the orders sought in the notice of motion. I was informed that the Court's powers to grant orders of the kind sought in this notice of motion were recently challenged in a Full Court of this Court whose decision has not yet been handed down.
There can be no doubt that the Court has over a number of years made many orders of the kind now sought. Without opposition from the same major respondent presently before the Court, virtually every Judge in the Court now and in the past has made such an order. I certainly have made some myself. It is obviously not possible for me to entertain and resolve in detail, in a motion which has been brought before the Court at 20 minutes notice late in the afternoon, an argument of such complexity. I have not had an opportunity even to hear the development of the argument, still less to read the cases to which reference is desired to be made. If in any event the matter is awaiting a decision of a Full Court, it would not be particularly sensible for me to engage in an exercise of this kind at this time.
It has long been held that superior Courts may entertain process to the extent and for the necessary purpose at least of being able to rule on whether they have jurisdiction or power to give the relief in question. Hence my decision to
receive and consider the notice of motion does not imply that I have ruled on, in the sense of accepted or rejected, the
argument that there is no jurisdiction to consider the matter at all. I am advised by the applicant's counsel, and it has not been denied by the respondents, that the applicant may be no more than 48 hours from deportation at this time. The respondents, for some undisclosed reason being unwilling to undertake that deportation will be delayed to permit the proper consideration of the matter, and the resolution of the jurisdictional question being simply not able to be undertaken in this case under such time constraints, I therefore assume without holding jurisdiction.
The substantive argument raised by the respondents in relation to the notice of motion is based upon the long line of decisions which have dictated that in determining whether an interlocutory injunction should be given, a Court should first seek out a serious question to be tried. It should then determine whether, on the balance of convenience, an interlocutory injunction is appropriate to enable that question to be determined or that trial to take place.
This type of interlocutory relief is really not in that category. It would not be possible for me this afternoon to determine whether there is a serious question to be tried in the application for judicial review. Partly this is because of the lateness of the hour, but partly it is also because the evidence which has been presented by the applicant consists of
which was placed before the decision-maker preparatory to the an affidavit by his solicitor, annexing in effect the material
decision in question, as well as the decision-maker's reasons for his decision. I would obviously have to give detailed consideration to that material, but as I raised in argument with counsel for the applicant, on the superficial knowledge I have of it so far, I do not see how I could resolve at least some of the questions raised by the application, without permitting cross-examination of some of the witnesses whose

For at least two of those years he has been employed in a senior management position at a middle-sized metal factory at Brookvale and it appears that he holds there a responsible and important functional position. By reason of various decisions

statements are comprised in the annexures to the applicant's
solicitor's affidavit.

In addition, the applicant might seek to supplement some of that material in any event, although the respondents have argued that in a proceeding such as this, it is not appropriate for the Court to entertain additional material. As I see it, a decision does not have to be made on that matter in the abstract, because to some extent it might depend on what the extra material was. If it merely supplemented the matters placed before the decision-maker, that might be in one category. If, however, it was desired to change the focus of the failure to grant admission to the applicant to remain in Australia, it may be that no decision has been made on any such ground. I do not think that there is a blanket rule that no additional material at all can be contemplated, but obviously having in mind the type of jurisdiction being exercised in such an application, there must be a limit to how much and what content of evidence can be added to the material

placed before the decision-maker.

It is perfectly obvious that if the matter demanded desperate urgency, the Court would sit into the night as necessary to resolve the matter, and I indicated to the legal representatives of the parties that I would be prepared to do so if this were such a case. However, although a deportation order has now been in existence for approximately a month, no reason has been put forward as to why the deportation of the applicant within a 48 hour period or thereabouts from now would, by comparison with the alternative of the Court being able to consider the matter properly and less frantically, cause any serious hardship to the respondents or to the national interest which they represent. In my opinion, where immediate deportation would finally remove from the jurisdiction the person seeking to energise the Court to take action to preserve his position, an urgent reason in the national interest would have to be shown or demonstrated by those who seek to have the deportation order carried out in that way.

As not infrequently happens when such a problem arises on interlocutory proceedings, this case involves a consideration of a number of issues of law and fact which could not be disposed of, as I see it, in just a few minutes or even a few hours of argument from the bar table. From my knowledge of the matter so far, it seems that in terms of hearing time, the issue of whether the application raises a serious triable

question will occupy time of the same order of magnitude as	the application.
I make no finding that this application does raise a serious question, but like the jurisdiction to consider the notice of motion, I do think it is of sufficient substance to warrant a hearing at the earliest possible moment. I have certainly not even considered let alone resolved the respondents' argument that the Court has no jurisdiction to order that W Mendoza be retained in the country pending the hearing of the application. Accordingly, I propose to adjourn the notice of motion to the hearing of the application and set down the hearing of both for Thursday, July 25 at 10 am.
That leaves the question of the applicant's actual custody between now and then. Superior Courts have always had an inherent or implicit jurisdiction to prevent action which would itself act as a determinant of legal issues before them for consideration and determination. In order for it to be clear that I am not foreclosing the submission that there is no jurisdiction to make the orders in the notice of motion, I will exercise this jurisdiction to restrain action which would itself foreclose the possibility in a practical and not a moot sense of considering important legal issues which the parties wish to bring before the Court. In this case, these include a determination of legal issues raised by the respondents themselves. There is obviously no point in considering an application by a party for the Court to disqualify itself from
the hearing of the matter on the grounds that it has no jurisdiction or power to make orders, whilst at the same time
permitting the very same party to render the whole proceeding moot by removing the subject matter of the proceeding from the Commonwealth of Australia.
For that purpose I order that the respondents be restrained from deporting the applicant up to and including the end of the Court day on July 25 next or until further order. I

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further order that the respondents be restrained from taking the applicant into custody or that they release him from such custody into which he has already been taken upon the following conditions:

(a) that until further order he reside at unit 2, 25 Sturdee

Parade, Dee Why;

(b)	that he give 24 hours notice of change of address to an
officer nominated by the first respondent's department to the solicitor for the applicant within 24 hours of now;
(c)	that between 9 am and 4 pm next Tuesday, 23 July he

report to an officer of the first respondent's department at Chatswood nominated by that department to the solicitor for the applicant within 24 hours of now;

(d) that the applicant not engage in employment without the

written permission of the secretary of the firat

of a firm called A.F. Bambach Pty Limited at their respondent's department other than as production manager

premises at Pittwater Road, Brookvale;

(e) that he either deposit afresh or leave in its present

deposit the sum of $5000 and agree to forfeit such sum in the event of a breach of these orders, subject to an order of the Court that it is appropriate that such sum be forfeited; and

(f) that he attend this court next Thursday, July 25 for the

hearing of the application and the notice of motion.

I order that the costs of today's proceedings be reserved and

give the following directions concerning the preparation for

the hearing of the matter:

(a)	that the present or any amended application or notice of
motion be filed and served by not later than 4 pm on Friday 19 July;
(b)	that any additional affidavits upon which the applicant
wishes to rely be filed and served by not later than 4 pm on Monday 22 July;
(c)	that any affidavits upon which the respondents wish to
rely be filed and served by not later than 12 noon on Wednesday 24 July;

(d) that the parties exchange and provide to my Associate an

outline of the arguments which they respectively wish to advocate, together with a list of authorities upon which reliance is intended to be placed, by not later than 4 pm on Wednesday 24 July;

(e) in the event that the parties agree that evidence upon

which any wishes to rely can be dealt with on the basis

of statements or letters as opposed to affidavits, such

decision is to be notified either in general or in

respect of specific witnesses to me by leaving a letter

to this effect with my Associate by not later than 4 pm l

on Wednesday 24 July;

t

(f) in the event that such agreement is reached, the

directions that I have given in respect of affidavits will apply in respect of such less formal mechanisms of producing evidence as are agreed.