Parmar, D.S. v Minister for Immigration & Ethnic Affairs

[1986] FCA 567

’ 561 NOT FOR DISTRIBUTION

IN THE FEDERAC COURT OF AUSTRALIA	)
)

VICTORIA	D STRICT	REGISTRY	)	V. No. G 349 of 1986
)

GENERAL DIVISION )

DHANBIR SINGH PARMAR

(also known as DENNIS PARMAR

also known as DENNIS SINGH) Applicant

and

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS Respondent

m: NORTHROP J.

DATE: 23 OCTOBER 1986

W: MELBOURNE

M TEMPORE REASONS FOR JUDGMENT

There I s motion a before the Court that

Interlocutory orders be made restraining the respondent from enforcing an order of deportation against the applicant, Mr. Parmar, and for an order that the applicant be released from the detention centre at Maribyrnong. I shall deal first with

the question of whether	an Interlocutory order should be
made.

The facts of this case are somewhat unusual. Mr.

Parmar is an Indlan of the Sikh persuaslon. He first entered

Australia on 16 March 1983 pursuant to a temporary entry permit for one month. He dld not comply with the terms of

that entry permit and remained in Australia until December

1985 when he was apprehended and was deported in January 1986

pursuant to the provisions of the Misration Act 1958 ("the

Act"). He arrived back in Australia on 20 April 1986 on

transit to Fiji and was granted a temporary entry permit for

24 hours to enable him to stay in Australia until he could

catch the ongoing flight to Fiji. Again, he ignored the conditions of that entry permit and remained in Australia

until he was apprehended on 28 August 1986.

A deportation order was made on 24 September 1986. On 3 October 1986 an application was made to this Court for

an order of review under the Administrative Decisions

(Judicial Review) Act 1977. The decisions sought to be

reviewed in that application were the decisions that the

applicant be refused a temporary entry permit, that the

applicant be refused resident	status and that the applicant
be deported.

The directions hearing fixed by the application was

31 October 1986. One makes a comment that it is strange that

there was such a long delay between the time of the issue of the application on 3 October 1986 and the first directions hearing when regard is had to the fact of the existence of

- 3 -

the deportation order which, under 5 . 2 0 of the Act, has to be

executed. I read that subsection:-

"20. (1) Where the Minister (in this case a

delegate) has made an order for the deportation of a Person. that person shall, unless the Minister revokes the order, be deported accordingly."

One would have thought that the existence of the deportation order was such as to warrant immediate steps for at least the preparation and application for interlocutory relief, pending the execution of that deportation order, until this

application could be heard. Yesterday, 22 October, the

deportee, the applicant, was notified that he would be

deported at 11.00 p.m. today and as a result the present

motion was taken out and notice given to the Australian

Government Solicitor on behalf of the respondent.

To some extent, the speed at which the matter has come on has made it more difficult to resolve the questions, but this is a case where the reasons for the decisions have

been given pursuant to s.13 of the Administrative Decisions

(Judicial Review) Act 1977 and it is on those reasons,

together with affidavits filed on behalf of the applicant,

and affidavit by Mr. Parmar and an affidavlt by Filomena Basile, which form the basis of the present application for a stay.

- 4 -

Before going further, reference should be made to

what I described earlier as the unusual features of this case. Under 5.16 of the Mlqratlon Act, a person who enters

Australia and is not an Australian citizen and who, at the

time of entry, is or was a person belng a person who has been

deported from Australia shall, notwlthstanding s.10, be

deemed to be a prohibited non-citizen unless he is the holder

of an entry permit endorsed with a statement that the person

granting that permit recognises him to be a person referred to in this sub-section. There was no such endorsement on the 24 hour temporary entry permit given to the applicant when he entered Australia on 20 April 1986. As a result of 5.16, at all times since then the applicant has been a prohibited non-citizen.

In the reasons for decision under 9.13 of the

Administrative Decisions (Judicial Review) Act, findings on material questions of fact are set out. I do not propose to deal with all of those, but it is clear that there was a statement to the effect that the applicant had a romantic

relationship in Australia with Mrs. Filomena Basile, an

Australian citizen; that it ensued for three months and that

Mrs. Basile was his fiancee and that they had planned to

marry on 20 September 1986. There are also statements in the reasons to the effect that during a conversation with Mrs. Basile on the morning of the day that the applicant was

apprehended, she claimed she had never slept with the

applicant and later on that day during an interview at the

offices of the Migratl.on Department again statements are said

- 5 -

to have been made by her that they were not cohabitatlng, but

were plannlng to get married.

In glving the reasons why the deportation order was

made, the person making the decision referred to the fact

that the applicant was a prohibited non-cltizen by virtue of Sub-Section 16(l)(c)(v) of the Act, which I mentioned earlier, and hls earlier history of being deported as

recently as January of	this year and that he accepted there
was a relatlonship with	Mrs. Basile, but made no reference to

the fact that they were living together in cohabitation.

The affidavit by Mrs. Basile refers to the

conversation of the morning of the day that the applicant was apprehended but does not say anything about what was said on

that occasion, but in relation to the meeting at the

Department of Immigration and Ethnic Affairs later that day, she says that she told officers of the department that she and the applicant were living in a de facto relationship and

were to be married on 20 September 1986.

The essential basis upon which the application for

interlocutory relief is sought is that there is a conflict of evidence between what Mrs. Basile says and the facts found by

the person making the decision based upon reports of

interviews by officers of the department. This turns on the very narrow point of whether there was a statement to the

effect that the applicant	and Mrs. Basile were cohabitating
or not.

- 6 -

As far as an application for an entry permit that

is not a temporary entry permit is concerned, s.6A of the

Miqration Act provides that:-

"6A. (1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one OK more of the following conditions is fulfilled in respect of him, that is to say-

(a) he has been granted, by instrument under

the hand of a Minister, terrltorlal

asylum in Australia;

(b) he is the spouse, child or aged parent of an Australian citizen ... ".

In a case where persons are living together in

cohabitation but not married, in law the person who is the

prohibited non-citizen is not the spouse of the Australian

citizen, therefore paragraph (b) has no application to the

present case. This does not deny the fact that in an

appropriate case the decision maker may take into account a

de facto relationship, but that does not of itself justify

the granting of a permanent entry permit under sub-section	I
(1) of s.6A.

The other ground relied on for what is described as

permanent resident status is paragraph (e) of sub-section (1)

of s.6A which reads:-

"(e) (the non-citizen) is the holder of a temporary

entry permit which is in force and there are

strong compassionate or humanitarian grounds

for the grant of an entry permit to him."

- 7 -

In the present case it is clear, because of the fact of s.16

of the Act, that the Minister cannot grant a temporary entry

permit under s.7 but he could grant such a permit under s.16

with endorsement on it and so, for the purposes of this application. I Will assume that there is power In the Minister or his delegate to grant all necessary permlts to enable a consideration to be given to whether the applicant should be granted either the temporary entry permit or permanent residency under paragraph (e) of sub-section (1) of

S . 6A.

But despite all that, for present purposes, one

comes down to the narrow point of whether the fact that there

is no reference in the facts as set out in the reasons under

s.13 of the de facto relationship is such as to give rise to an issue sufficient to justify the granting of interim relief in this case.

As opposed to that, there is the very strong

persuasive effect of the history of this matter. The reasons

why the decision was made are set out in paragraphs 13 to 22

of the s.13 reasons. In that the statement is made that it has not been established that the couple do share a de facto

relationship and that there are serious discrepancies in

their description of the relationship and so, to some extent,

there is a question of fact which might arise there. But as far as the present application is concerned, what I must be satisfied about is whether there is an issue sufficient to

justify the interference of the Court to stay the operation

. - - 8 -

of the deportation order. Is there any basis to support a

case under the Judicial Review Act?

This is a case where there may well be conflicts of fact between what Mrs. Basile and Mr. Parmar say and what the officers of the department say, but one must form the view,

on the affidavits, that there is a certain degree of

ambivalence in them, and having regard to the length of time in which solicitors have been acting for the applicant, one

would have expected far more detailed material before the

Court than what is in the affidavits. In any event, this is

not a case similar to that in Kioa where there was an

allegation of facts which could be used adversely against the

applicant and which were not drawn to his attention so as to

enable the person to answer them if need be. It is a case

where on all the material a relationship between the

applicant and Mrs. Basile was recognised. The fact of the

marriage coming up in September was accepted and, in those

circumstances, I find it difficult to see any argument at all, based upon s.5 sub-section (1) paragraph (e) of the Judicial Review Act, as elaborated upon by sub-section ( 2 )

that the Minister or his delegate took into account an

irrelevant consideration in exercising his discretion or

power or failed	toake	into	account	relevant	a
consideration.

. ' - 9 -

Accordingly, I hold that there is no basis for the

granting of an interim order staying the deportation order.

Further, in those circumstances, it is not necessary for me

to consider the second order sought in relation	to	the
releasing from custody.