Poursandidis v Minister for Immigration & Ethnic Affairs

IN THE FEDERAL COURT

OF AUSTRALIA

1 1

No.

DIVISION

GENERAL

G 377

1987

N E W SOUTE WAUZS DISTRICT REGISTRY )

Between:

GEORGE

P URSANIDIS

And :

MINISTER FOR IMMIGRATION

AND ETENIC AFFAIRS

CORAM: Einfeld J.

-	DATE:' 22 September 1987

Sydney 28 JAN 2003

PLACE:

EX TEMPORE J[TDGMENT

This is an application for judicial review of

a deportation order signed

on 30 July 1987 by a delegate of the Minister for Immigration and Ethnic

Affairs, the execution of which would mean that the applicant would	be
deported to Greece. The applicant has been in Australia since 1976,

when he deserted

ship in Australian waters and entered Australia

unlawfully. He is a citizen of Greece and is aged about

30 years.

In March 1977

a deportation order was said to have been signed against

the	applicant by the then Minister but the applicant claims to know

nothing about that deportation order, and it may not have been served.

It certainly was not executed. In November 1980,

the applicant lodged

an application for permanent resident status, claiming at the time

that

he was married to an Australian citizen. Although this claim

was

apparently true, and he had

female child by that woman, he does not

appear to have been granted permanent resident status. That marriage

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has since been dissolved, and the applicant has offered no evidence of

any involvement with either the mother of his child or the child

herself.

In July 1984, the applicant was convicted at Waverley Court

of Petty

Sessions of possession of heroin and was sentenced to

months

imprisonment with hard labour, with a non-parole period of nine months.

He appears to have been released after serving seven months. Between

the time' of his arrival in Australia and the time of his conviction, he

engaged in different types of employment and whilst not working received

unemployment benefits. After release from prison, he worked for

period in

a relative's business but subsequently was again on social

security until

in February 1986 he entered hospital for an operation.

He has not worked since that time and has received sickness benefits.

The applicant was arrested

in April 1917 as a prohibited immigrant and

for having failed to pay certain traffic fines, and has been in the Metropolitan Remand Centre at Long Bay ever since. I am advised that when prohibited immigrants have convictions or significant convictions,

they are kept at Long Bay rather than at Villawood Detention Centre. It

seems extraordinary to me that someone can be kept in gaol for five

months without a hearing to determine whether he should remain there or

what his status within Australia is or ought to be.

No other person

could be held

in custody without being brought before a magistrate and

given the opportunity of applying for bail, but this seems to have been

denied to this. applicant.

I do not say that in criticism of the

Immigration Department, but it does seem to be a significant defect in

the law that would permit someone to be kept in prison for five months

without a conviction or any form of trial or court hearing.

- 3 -

Counsel and solicitors

on behalf of the applicant

made application to

on 6 August 1987 for a stay of the deportation order. This was granted,

and the matter was listed

for directions~ on 12 and 26 August.

Ultimately

hearing date was fixed for

1 September, but on

the

applicant's application,	this	was	vacated,	and	today's	date	fixed
instead.

At the directions hearing on

26 August, I gave a number of directions to

facilitate the preparation of this matter for hearing. Notwithstanding that, the application for an order of review, which had been presented

August as part of the application for a stay of the deportation

order, remains incomplete and in relevant respects unparticularised.

In the afternoon of Thursday 17 September, my associate was contacted by

the solicitor for the applicant and informed that legal

aid, which had

thus far been available to the applicant in this application, had been

refused for the hearing.

' A n appeal had been lodged against

he refusal

to grant legal aid; but the solicitor was informed that

the m ter could

not be dealt with in time for today's

hearing to proceed. This meant,

in effect, that

the timetabling by the legal aid authorities was

dictating the court lists, and for that matter, the	Government's
deportation programme as might affect this applicant.

Because this was unsatisfactory, I

asked the

legal aid authorities to

expedite the appeal against the refusal of legal aid.

As a

result

that intervention,

the

legal aid review

was expedited and was heard

yesterday.

The refusal of legal aid was confirmed, and as

a result, Mr.

Poursanidis

appears

today

without

legal

representation.

This

also

9 - 4 -

demonstrates an unsatisfactory state of affairs.

A man is in prison for

five months without

a hearing, without the opportunity of

bail, and

suddenly is confronted with an important hearing

in which his whole

future may

be determined, but he does not have legal representation.

The result is that

he has had to conduct his

own case with an imperfect

understanding of English

and

with

little understanding of the

technicalities

involved

application

for

review

under

the

Administrative Decisions (Judicfial Review) Act	1977 (the Judicial Review
Act).

Tde decision to deport was accompanied by

a number of other decisions.

The applicant was also refused the grant of

emporary entry permit, he

was refused a permanent entry permit pursuant to what is known as

"the

regularisation of status programme", he was refused any other category

of entry permit, and according to the application for an order of

review, was refused the concession of

a Supervised voluntary departure.

In the statement of reasons given by the decision-maker, who is

the

Regional Director of the Sydney office of the Department of Immigration,

Local Government and Ethnic Affairs and the delegate

of the Minister,

there is, so far as I can see, no reference to

a refusal of supervised

voluntary departure. As I understand it, this has significance in

that

a person deported is in general, at any rate, not allowed to return

Australia or even make an application for residence or citizenship here for a five-year period after the deportation. This does not apply when

there is

a voluntary departure.

- 5 -

Nonetheless, no part of the application as set out in the grounds of the application for review, nor any matter raised by the applicant today, suggests that this matter has played any relevant part in the situation

as applies at the present time. There are three gounds that are put

forward for judicial review.

It is firstly said that there was

a breach

of the rules of natural justice in

the making of each of

the decisions

to which I have referred. The relevant definition

of natural justice is

by now well known and is set out in

a number of decisions of the Eigh

Court.

this

Court

and

Giving the best attention that I can to the principles laid down

those decisions and to the facts

of this particular case, I

quite

unable to see how there has been any breach of

natural justice in this

matter. The application for review has

a heading "Particulars" under

the ground of natural justice with the words "to be provided". In other

words,

no particularisation has conuuended itself to the solicitors who

filed this application and who were

still in charge of the matter

until

the refusal of legal aid at the end of last week. I can find no breach

of the relevant rules

of natural justice. It seems to

me that the

applicant was given considerable opportunity

to put whatever view

wished and whatever argument was available

and to promote any person or

persons who could assist in

the departmental deliberations on his case.

It seems to me that the decision processes of

the

department in this

case extended to him every opportunity to put arguments or

points

view or documentary material relevant to

a decision in his favour. This

argument under section 5(l)(a)

of the Judical Review Act fails.

The second ground of

the application is that the making

of each of these

decisions was

an .improper exercise of the

power conferred by the

- 6 -

Migration Act. This objection is made possible by section 5(l)(e) of

the Judicial Review Act. There is then provided'section 5(2)

of this

Act which in substance defines an improper exercise of power under

number of different headings, one of which is relied upon here,, namely,

that

the

respondent

failed

take

into

account

the

relevant

considerations that the applicant is the de facto spouse

Australian citizen. The failure to take

a relevant cons~ideration into

account in the exercise of

a power such as this is provided as

basis

for asserting an improper exercise of power by kection	5(2)(b) of the
Judicial Review Act.

The

situation

concerning

Mr. Poursanidis'

personal

life

that

following upon his divorce in June 1982, he seems some time later

have

commenced

a relationship

with a MS Sharni

Harrison.

This

relationship persists to the present day, and there seems no reason not

to accept that the relationship is

a genuine one, even though it seems

to have undergone some rather unusual and stressful pressures. The

friendship of the applicant and

Us Earrison appears to have commenced

some time after the applicant's release from hospital in February 1986.

By May 1987, when Us Earrison was interviewed by an officer

the

Department of Immigration, it was said that the relationship had existed

for the past

months.

MS Earrison is an Australian citizen. She

appears to have become pregnant at some time in 1987 but subsequently lost the child after a traumatic experience and the nervous pressures

and tensions involved

in the arrest of the applicant earlier this year.

MS Earrison was born in August 1971. That means that at the time when

the deportation order was actually signed, she was

a few days short of

her slxteenth birthday. I am advised that there was a

policy followed

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by the department in relation to de facto spouses that if the female

party is under sixteen years

of age, the de facto relationship is not to

be recognized for the purpose of granting resident status.

I can see no

justification in

the legislation for such

a policy, although I can

understand

that

department

might

look

with

somewhat

perceptiveness and precision than otherwise might be the case to

the

permanency of relationships between 30-year old men and 15-year old

women. In this particular case, the delegate of the Minister stated

very properly that because MS Earrison was almost

16 y e b

of age at

the

time of his decision, he gave this aspect of the policy little weight in

the decision-making.

MS Elarrison was interviewed at some length by a

departmental officer,

and the applicant was interviewed on more than one occasion about his

relationship with

MS Earrison.

It cannot be said in the light of the matters contained

the reasons

for the decision

o f the Regional Director as delegate for the Minister

that he failed to take into account that the applicant is the de facto

spouse of MS Earrison, an Australian citizen. It is clear that he did

take it into account. It is also clear that he did not exclude the

relationship by reason

of any departmental policy of the kind to which

have referred in view of the fact that she was almost

16 years of age.

In these circumstances,

I cannot find that the making

of the decisions

in this case was an improper exercise of the power conferred by the and 5(2)(b) of the Judicial Review Act.

- 8 -

In the application for judicial review,

after

identifying that the

relationship with MS Harrison was the basis on which the decisions were attached, there is a statement "further particulars will be provided". Not only are there no such further particulars in the documents; I can

find none in any

material which has

been~brought

forward by Mr.

Poursanidis or

MS Earrison today.

The third stated ground in the application

for judicial review is

that

the decision involved an error of law.

The allegation in subsdance is

that

the delegate of the Minister in effect treated

MS Earrison's age

under 16 years as

a disqualifying factor on

Mr. Poursanidis' application

to remain in Australia.

For the reasons I have previously given, it is

clear that this attack on the decisions also fails

because. whatever be

the status

of the departmental policy in relation to

de facto spouses

under the age

of 16 years, this decision was not affected by

it.

One ground upon which an entry permit may be granted

non-citizens

after entry into Australia is provided

by section 6A(l)(e)

of the

Migration Act. This provides that

the holder of

a temporary entry

permit may be granted

a permanent entry permit

or residence if there are

strong compassionate or humanitarian grounds for the grant of such

permit to him. Although this ground is not

stated in the

application

for judicial review,

it was a matter that was adverted to

by the

decision-maker in this decision. The Minister cannot therefore

adversely affected by

my addressing the matter briefly now. In

this

case, the decision-maker found that there were no such grounds for the grant of a permanent entry permit to the applicant. Although it is sad that intimate relationship should be broken by deportation orders, the question is whether the decision-maker was entitled to find that in this

- 9 -

case there is insufficient evidence to establish strong compassionate or

humanitarian grounds for permanent resident status.

Both MS Earrison and the applicant ,say that their relationship

is close

although the applicant now describes their relationship as being that

friends. It is true that both of them state that they wish to marry.

can understand that at the time when the application for	a permanent
entry permit was being considered and even at the time when the

deportation order was signed,

MS Harrison did not seriously have the!

opportunity of marrying without some difficulty because she was under

years of age and was not in contact with her parents to approve her

early marriage. She has now been

16 years of age for something of the

order of six

or seven weeks. No application to marry has been filed, no

notice has been given, and.the matter is still left in the air.

The applicant and

Barrison informed me that they have received

"advice" from such legal giants

as the prison authorities and, in some

case, from other members of

the civil service as to their rights

marry now and/or marry at the prison, and the effect of such marriage on

Mr.	Poursanidis' right to remain in Australia. Without placing any

weight on their hearsay accounts of the advice

which they had been

given, it is significant that they were legally represented until two or three working days ago and did not apparently seek the advice of their solicitor on this Important matter.

Section 6A(l)(b)

of the Migration Act entitles

' a non-citizen to the

opportunity of permanent residence in Australia after entry into

Australia if he is the spouse of an Australian citizen.

Mr. Poursanidis

and MS Earrison are not presently married and, as

I see it,

Mr.

~	- 10 -
I
i

Poursanidis is not entitled to permanent residence in Australia unless

he is the spouse

of an Australian citizen pursuant to that sub-section.

Therefore, the only basis upon which permanent residence

in Australia

could have been granted~ would have been if the circumstances of his

relationship with

Harrison and perhaps the Imminence of their

marriage might have given rise to

a finding that there were strong

compassionate or humanitarian grounds.

It is not for me to determine whether the facts in this matter amount

such grounds.

sole task is

to determine whether there has been

demonstrated any

error of law in the finding by the decision-maker

that

such grounds did not exist.

I am unable to find any such error of law.

The decision-maker drew

a balance between those factors which militated

in favour of the grant of permanent residence to the applicant and those

factors which weighed against. He seemed to do

so open-mindedly and

with fairness. He even revoked an earlier deportation order which was

still extant and available

for execution, in order to enable him to

consider the whole of the facts unfettered by the previous refusals

Mr. Poursanidis to leave the jurisdiction

any other much earlier

events which might have militated against his chances of remaining here.

In these circumstances, there has not been demonstrated, and there

not available, as

I see it, from the facts which are in evidence, a

basis for suggesting that the delegate of the Minister made an error of

law in holding that there were no compassionate

or humanitarian grounds

for the grant of

a permanent entry permit to the applicant.

The applicant claims that he feels and is Australian, that Australia

his home and that the length of time he has been in this country would

represent

serious hardship were he now deported. In express terms,

- 11 -

these factors do not appear to have been impressive

to the delegate of

the Minister as a ground

for

considering

permanent

residence

Australia.

I can understand such a conclusion. It would meant that all

an illegal migrant has to do to be permitted to

remain in Australia is

to escape

the

authorities for long enough to create some type

prescriptive right to stay. This cannot

be and is not the law.

On the other hand, it seems

to me that the department

may well feel that

this is a case in which some additional considerations might be called

for before deportation is finally confirmed and carried out.

I have

said that

I do not believe that there is

or has been demonstrated any

ground for challenging the decisions under review. It does

not appear

from the papers made available to

me that voluntalfy departure has been

considered,

but I do

not

doubt

these

matters are

regularly

considered, that the matter did not escape

attention

completely.

seems to me that

would

appropriate

that

especially

considered in this case, if only

for the reason that

if MS Harrison does

travel to Greece for the purpose

of marrying

the applicant,

the

applicant and

MS Harrison should not be prevented

from returning to

Australia as soon

as convenient if they

do marry.

However, it also seems to me that the department might well consider

this to be

a case in which other considerations might militate in favour

of a further consideration. The first is that

the appiicant has been in

Australia. since 1976. In that time, that is

between

1976 and the

present day, there have been three deportation orders signed against

him: one

in 1977, which does not appear to have been served; the second

in 1982; and the third one in July

of this year. During that time

the

applicant has engaged in employment, has paid income

tax

and has,

- 12 -

according to him, never failed to be employed under his

own

name. Be

has also received various categories of Social Security beneflts when he has not been employed. Be has been interviewed by the department on a

number of occasions since 1984

and,

as long ago as 1980, lodged an

application for permanent resident status to which

the

department

responded in writing some nine months later.

In 1983, he lodged

citizenship inquiry form, and the department invited him to

submit

further information in support of his application for

resident status.

It apparently treated the citizenship inquiry	as an	inquiry as	to
resident status.

From the department's

own statement of reasons,

the next contact was

initiated by

the applicant himself by telephone, when he advised

March 1984 of the break-up of his then marriage, that he was facing the

drug

charges and that he would provide

the department with some

statement of his then circumstances. In other words, the

applicant has

been available to the department virtually at all times

for the last

eleven years, even

in difficult and embarrassing circumstances. It

true that the contacts between the department and him have been at times

sporadic, but there is no allegation,

nor are there any facts to support

an assertion, that

he has at any time, or for any appreciable time,

attempted to avoid the department

or go into hiding.

In addition,

welght might be given to

a consideration that deciding

on marriage by a

30-year old male from Greece and

a 16-year old female from Australia who

has been

separated

from

her

parents

and

family

circle

for

some

considerable time, would be an event causing trauma to both parties, and

would not be

an easy matter to

deal with, especially while

the applicant

was in gaol for so many months.

b v *

- 13 -

These matters might also be treated as background to the fact that

virtually no steps have been taken to solemnize the marriage. The

department might consider whether they represent any basis upon	which
the deportation order might not be executed.

Having said that,

I must, however, do the duty which is imposed upon me

by the Judicial Review Act and the interpretation of its terms to which

I have earlier referred. No ground has been made out

for a review of

the debision in

. this case to deport the applicant and with the

recommendations and urgings to which

I have earlier adverted,

I must, in

the circumstances, dismiss

the application.

[1987] FCA 823

22 Sep 1987