Murugasu v Minister for Immigration & Ethnic Affairs

[1987] FCA 429

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IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G347 of 1987

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I GENERAL DIVISION

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I	EX TEMPORE JUDGMENT
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I Between: PERIANNAN MURUGASU

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And: THE MINISTER FOR

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IMMIGRATION AND ETHNIC

AFFAIRS

(Respondent)

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I	W: Ryan J.
i	Date: 4 August 1987
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l	M TEMPORE REASONS FOR JUDGMENT
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1	I	RYAN J.:	This is an application by notice of motion for an
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injunction restraining the respondent from removing the

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I	applicant from Australia until the hearing of an appeal by
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I	the applicant against an order of Wilcox J. on 28 July 1987
I	dismissing an application for review under the
Decisions (Judicial Review) Act 1977 ("the Act")
decisions affecting the applicant.
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I The first decision was to refuse to issue a

entry permit to the applicant. The second decision wasiz i?'

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the effect that the appllcant does not have the status of a

refugee within the meaning of the Geneva and New York

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I	Conventlons.
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On 29 July 1987 a notice of appeal on behalf of the

applicant was lodged in court, but because the applicant did

not have the means to pay filing fees and a request for legal

aid for the prosecution of the appeal had not at that time

been considered, the notice of appeal has not yet been filed.

The notice of appeal	as lodged specifies the following three
grounds :

"1.

His Honour fell into error in finding that

the appellant had not been denied natural

justice.

2.	His Honour fell into error in finding the	i
policy instruction No. 1330 did not apply
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to the applicant.
3 .	His Honour fell into error in finding that the applicant was not a refugee within the meaning of s.GA(l)(c) of the Misration Act

1958. as amended. "

The orders sought in the notice of appeal, apart from the interlocutory order which is the subject of the application presently before the Court are:

"(b) A declaration that breaches of natural

justice had occurred in relation to the

making of the decision of 2 June 1987	by
Denis Richardson.

(c) That the matter to which the decision of

the delegate of 2 June 1987 related be

referred to the respondent for further

consideration in the light of the above

declaration. I'

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The declsion of the Delegate to the Minister to which those

orders are directed was communicated to the applicant by

letter dated 2 June 1987, which was In these terms:

!	"I refer to your application for refugee status in	I '
Australia. Your application for refugee status has been examined carefully by the determination

of refugee status (DORS) committee comprising I .

representatives of the Department of Immigration	l
and Ethnic Affairs, Foreign Affairs, Attorney-	I-

General's Department and Prime Minister and i'

Cabinet. The representative of the United i

Nations High Commissioner Refugees for

participates as an adviser to the Committee. The

DORS Committee recommended against the granting

of refugee status to you. This decision was

taken following consideration of detailed advice

and information available to the committee

concerning the general situation prevailing in I .

Sri Lanka and your known particular circumstances	8	-
in that country as they related to your claims for refugee status. The Minister's delegate has endorsed the Committee's recommendation and it
has agreed that your application for refugee status in Australia must be refused."	i
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Although, as I indicated, the orders which by the notice of	;.'
appeal as lodged are sought to be substituted for the order of Wilcox J. are directed to what his Honour identified as the second decision to refuse to accord to the applicant the

status of a refugee, I have been informed from the Bar table I

by Mr. Wood of counsel, who now appears for the applicant,

that it is desired to amend the notice of appeal as lodged to

direct grounds of appeal to what his Honour identified as the

first decision to refuse the applicant	a	temporary entry	i
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permit.
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The applicant's solicitor on 31 July 1987, deposed that

at the time of swearing his affidavit, a copy of Wilcox J. 's

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reasons for ~udqment on 28 July 1987 had not then been made

available to the applicant or his advisers. I was further

informed from the Bar table that a copy of those reasons was

only made available to the applicant's legal advisers this

afternoon, shortly before the application before me

commenced. Accordingly, Mr. Wood has been embarrassed in

seeking to argue or to demonstrate that the applicant has an

arguable prospect of success on the projected appeal. It was

that embarrassment which led Mr. Hood to seek only an

injunctlon until some time next week when his Honour's

reasons for judgment could be fully considered and

particularly by counsel who appeared for the applicant before

his Honour and who will not	be	available to advise the
applicant until that time.

It further appears from the affidavit; of Mrs. Frankham,

the applicant's solicitor, that legal aid has been granted to

obtain counsel's opinion on the merits of the proposed appeal

by the applicant, which opinion will be a factor in

determining whether or not legal aid is granted to the

applicant to pursue his appeal. My attention was directed by l

Mr. Daley who appeared as solicitor for the respondent to a judgment, - again of Wilcox J., in Percv Roias v. The

Minister for Immisration and Ethnic Affairs (unreported 12

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November 1986) in which his Honour considered that the.'

approriate test to apply on an application such as this for

an injunction pending an appeal by an appellant under threat

of deportation or removal from this country, is to ask

whether the judge hearing the application would be persuaded

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i to grant leave to appeal If It were a case In which leave to

appeal would be required. Reference was also made to another

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I ~udgment of this court in Sheuns v. The Mlnister for

Immiqration and Ethnic Affairs, a judgment of Gallop J. in

!	which, I was informed, his Honour applied the test enunciated
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by Wilcox J. in Roias' Case.

However, as I indicated in the course of argument, the

I	difficulty	which	presently	faces	the	court	in	applying	that
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test is that counsel for the appllcant has been unable,

because of the shortness of time after Wilcox J.'s reasons

for judgment became available and his own lack of familiarity

with the matter, properly to address that question and to

indicate the basis on which the appellant could satisfy the

test suggested in Roias' Case.

In all of those circumstances I consider that it would

be undesirable for me to express any view as to whether the

applicant can demonstrate an arguable prospect of success on

the appeal. One of the reasons why that would be undesirable

is that it would pre-empt consideration by the legal aid

authorities of the applicant's request for legal aid in the

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light of the opinion to be obtained in the near future, as I

I	have been advised, from counsel who was originally retained
in the matter and who appeared for the applicant at first
instance.
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I therefore consider that the appropriate course is to

grant a limited injunction until a time next week which will

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permit a proper analysis to be undertaken of his Honour's

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i	reasons for judgment and counsel's opinion to be obtained
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1	!	either from counsel originally retained in the matter or from
Mr. Wood or other counsel afforded a proper opportunity for
reflection and research.
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I certify that this and the

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preceding five (5) pages are

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a true copy of the Reasons

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for Judgment herein of the

Honourable Mr. Justice Ryan.

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