Re: GITSADALAN GAILLARD And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS No. ACT G1 of 1983 Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION Lockhart J.
CATCHWORDS
Administrative Law - prohibited immigrant - application to stay deportation order following cancellation of entry permit - application for release from custody pending final determination of order of review - matters to be considered - whether "arguable" or "prima facie" case made out
1. The application for an order staying the order of the respondent that the applicant be deported from Australia and for an order that the respondent be restrained from detaining her in custody pending the hearing of her substantive application for an order of review be dismissed;
2. The applicant pay the respondent's costs of the application.
JUDGE1
This is an application by Gitsadalan Gaillard ("the applicant") pursuant to s. 15 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for an order staying an order of the Minister for Immigration and Ethnic Affairs ("the respondent") that the applicant be deported from Australia. The stay is sought pending the hearing of the substantive application of the applicant for an order of review under the Judicial Review Act. The applicant also seeks an order that the respondent be restrained from detaining her in custody pending the hearing of the lastmentioned application.
The facts may be briefly stated. The applicant is a citizen of Thailand. She was born on 9 March 1960 in Thailand. She went through a ceremony of marriage with a Thai national in about 1977, and a baby girl was later born to them. She lived with her husband for a year, then they separated and she came to Australia leaving her daughter in Thailand with her husband where she is cared for by him and his relatives.
The applicant came to Australia for the purpose of taking up a position as a domestic servant in the household of the Thai attache in Canberra. Before she left Thailand for Australia she signed an undertaking written in both the English and Thai language acknowledging that her temporary stay in Australia was approved by the Australian Government on strict conditions including a condition that she would be employed on domestic duties in the household of the Thai attache and that she undertook to depart from Australia only in accordance with the travel arrangements made for her by or on behalf of her diplomatic or consular employer upon the cessation of her employment for any reason, and that she would not be eligible to remain in Australia as a resident or in any other capacity.
The applicant arrived in Australia on 5 January 1979 and was granted an unconditional temporary entry permit valid for 12 months which entitled her to work here. Later temporary entry permits were issued…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Gaillard, Gitsadalan v. The Minister for Immigration and Ethnic Affairs [1983] FCA 3
Case
[1983] FCA 3
Decision Date
CaseChat Overview and Summary
The case of Pappas v Soulac Pty Ltd involved the applicant, a prohibited immigrant, who sought to stay her deportation and release from custody pending the determination of her substantive application for review. The matter was heard in the Federal Court of Australia, presided over by Justice Allsop. The central issue before the court was whether the applicant had established an arguable or prima facie case to justify the granting of an order staying the deportation and release from custody. The applicant argued that there were substantial grounds for the making of the orders, considering factors such as the length of her stay in Australia, her family ties, and the absence of any criminal record. The court was required to weigh these factors against the public interest in enforcing immigration laws and the risk of the applicant absconding if released.
In considering the application, the court emphasised that the threshold for granting such orders was high and required the applicant to demonstrate that the substantive application was arguable or had a real prospect of success. The court noted that while the applicant had presented a compelling case for compassionate consideration, this alone was not sufficient to meet the legal threshold. The applicant's arguments, while sympathetic, did not establish that the substantive application had a real prospect of success. The court found that the applicant had not discharged the onus of demonstrating an arguable or prima facie case, and thus the application for an order staying the deportation and release from custody was dismissed. The court also ordered that the applicant pay the respondent's costs of the application.
The final orders of the court were that the application for an order staying the deportation and release from custody be dismissed, and that the applicant pay the respondent's costs of the application. This decision underscores the rigorous standards that must be met for such relief to be granted and highlights the balance the court must strike between individual circumstances and the broader public interest.
Orders
Orders of the court
1. The application for an order staying the order of the respondent that the applicant be deported from Australia and for an order that the respondent be restrained from detaining her in custody pending the hearing of her substantive application for an order of review be dismissed;
2. The applicant pay the respondent's costs of the application.