Mousallem, M. v Minister for Immigration Local Government and Ethnic Affairs

[1990] FCA 799

W E FEDERAL COURT OF )

NEW SOUTH WALES DISTRICT REGISTRY )	)	No G 549 of 1990
1 1

WTWEEN:  MOHAMED MOUSALLEM
Applicant

ziu?:	MINISTER FOR IMMIGRATION
Respondent

ixww	HILL J
DATED :	20 SEPTEMBER 1990  FEDERAL COURT OF
E u u x :	SYDNEY

PRINCIPAL

B TEMPORE REASONS FOR JUDGMENT

The applicant, Mr Mousallem, moves the court for interlocutory relief restraining the respondent Minister for Immigration, Local Government and Ethnic Affairs from, in effect, implementing a deportation order made on 29 April

The substantive proceeding commenced by the applicant in which interlocutory relief is sought is an application made under the u s t r a t i v e Decisions IJudiciaL Review) Act 1977 to review what are said to be two decisions made under the provisions of the w t i o n Act 1958 ("the Act"). The first of the so called decisions is described as being "the decision of the respondent that the deportation

of the respondent of 17 September 1990 not to revoke the	deportation order or reconsider it under the piaration Act 1958".
The background to these proceedings commences as already appears no later than April of 1989 when a deportation order was made. Mrs Skaf applied to the Administrative Appeals Tribunal for a review of that decision. The Tribunal after hearing evidence and submissions made inter alia on behalf of counsel for Mrs Skaf dismissed the application.
It appears from the reasons of decision of the Tribunal that on 11 April 1985 when returning to Australia from Tripoli not long indeed after she had first come to Australia, she was arrested with luggage containing more than 400 grams of heroin. This subsequently brought about a charge for importing a prohibitive import on which she was convicted.
The Tribunal considered in particular the ministerial policy dealing with persons who have been convicted of offences and it would seem that its decision was in part at least influenced by that policy.
At the time of the hearing in the Administrative Appeals Tribunal it was clear that Mrs Skaf had formed a relationship with the present applicant and indeed had a child with him, Dib Mousallem, who was born in Australia. Indeed the application to the Administrative Appeals Tribunal was in part based upon the consequences which deportation was said to potentially have upon Mr Mousallem and the child, Dib.
Mrs Skaf then appealed to a judge of this court, as she was entitled to do under 8.44 of the &!&,nietrativg
m e a l s Tribunal Act 1975. That appeal, as Mr Justice Davies
before whom it came pointed out, is an appeal limited to questions of law. His Honour carefully considered the submissions that were made on behalf of Mrs Skaf by counsel for her and was of the view that no error of law had been conmitted by the Tribunal. Indeed his Honour said that he was satisfied that the Tribunal had given attention to all relevant factors and although his Honour made criticisms of the Tribunal's reasons, nevertheless the decision as a whole was one to which the Tribunal could reasonably have come and the weight to be given to any particular factor was a matter for the Tribunal itself to consider and not for this court.
Mrs Skaf then appealed to the full court of this court which heard the appeal on Friday 14 September last. An extempore judgment was delivered on behalf of the court
unanimous view of the court that the appeal be dismissed. comprising, Wilcox, Gummow and Foster JJ and it was the
It is against the background of that application that the applicant now seeks once more to defer the deportation of Mrs Skaf. The substantial basis said to exist for the appeal was twofold: firstly, that the respondent had failed to consider the matters prescribed under s.63(1) of the

order of 29 April 1989 in respect of Samira Said Skaf be

implemented". The second decision is said to be "the decision

tion Act 1958 and secondly, that the respondent had

failed to take into account certain relevant considerations
said to be that:

" (a) The deportee is pregnant with the applicant's child and the wishes of the Applicant, that it be brought up in Australia as an Australian citizen.

(b)	the rights of the child en ventre sa mere.
(c)	the changed circumstances since the making of the deporta tion order.
(d)	the health of the deportee and the effect of the deportation upon her health whilst pregnant.
(e)	the health of the child en ventre sa mere and the effect of the deportation of the deportee upon it."

In considering whether to grant interlocutory relief of this kind, it is clearly enough established that I must consider whether there is an arguable issue to be tried and whether the balance of convenience favours the interlocutory

relief sought. As has been often said, these two matters are	not independent of each other; they to a great extent,
interact.
The applicant submits that the decision to implement the deportation order is a decision to which the

. .

mU R v' c applies with the consequence that it is open for review in this court. The meaning of the expression "decision" is dealt with in some

detail in the judgment of the Full High Court recently in the
Broadcastina Tribunal v Bond and ors (1990) 94 ALR
11. From that judgment it is clear that for a decision to be
a decision made under an enactment, the decision must be one
which generally at least would entail a decision which is
final, operative and determinative. In a practical sense of

the issues falling for consideration, it must be a

"substantive determination".

The scheme of the Miaration Acf as is illustrated by 8.63 of that Act, is that once the Minister has made an order for deportation the person (the subject of that order) shall, subject to one qualification, be deported. There is no further decision necessary to be made subject to the matter of qualification to which I will return. Although the Act contemplates that deportation might be delayed, the validity of an order for deportation is not specifically to be affected by a delay in the execution of the order, see s.63(2).

In my view the applicant has not made out an arguable case that there is a decision to be reviewed in the giving effect to, or the implementing of, the deportation order. The qualification to s .63 to which I have referred is that the Minister may revoke a deportation order. That decision, if requested, is clearly enough a decision under an enactment for purposes of the Administrative decision^

It is an arguable issue which I do not need to determine in these proceedings whether the applicant has or has not applied to the Minister to revoke the deportation order. For present purposes I am content to accept the submission that the Minister has been requested to revoke the deportation order. The question that then arises is whether there is an arguable issue thereafter arising.

By force of s.63(1), the Minister in the event that he considers revoking the deportation order, is directed to consider "the prescribed matters and no other matters". The prescribed matters are those to be found in reg.180 of the Migration Regulations. That regulation refers essentially to four matters, three of which are clearly enough irrelevant. The fourth matter is the question "whether there has been a prescribed change in the person's circumstances" as referred to in sa.36(l)(a) or 37(2)(a) of the Act.

That question, it is accepted by counsel for the applicant, must be determined in accordance with reg.40 which prescribes the relevant changes in circumstances for the purposes of ss.36(l)(a) and 37(2)(a) respectively of the Act. I have anxiously sought to find in the facts applicable to Mrs Skaf any circumstance which falls within reg.40, and counsel for the applicant ultimately conceded that there was nothing in reg.40 to which he could point in showing a change of circumstances.

The consequence of 8.63 requiring that no matters, other than the matters to which I have already referred be taken into account, is that various matters which the applicant claims the Minister failed to take into account are all matters which the Minister has been directed not to take into account. Therefore, the Minister can hardly be in error by failing to take them into account.

Even if they were matters which were relevant otherwise to take into account, a matter upon which I do not wish to comment, they may not, under the Act, be taken into account by the Minister or hie delegate.

For these reasons I am of the view that the applicant has not established an arguable issue for trial, so that it is unnecessary to consider the issue of balance of convenience.

In these circumstances I would decline to grant the

interlocutory relief sought. I would dismiss the application

with costs.

I certify that this and the
preceding six (6) pages
are a true copy of the Extempore
Reasons for Judgment herein of

his Honour Mr Justice Hjl;.

Aesociate s

Dates 20 septembe/r 1990. +A

S .

.L ' c *

Counsel and Solicitors	J.J. Fernon instructed by
for Applicant:	John Sarroff h Co.
Counsel and Solicitors	D.M. Yates instructed by the
for Respondent:	Australian Government Solicitor
Dates of Hearing:	20 September 1990
Date Judgment Delivered:	20 September 1990