Robert William Arthur Spencer Samuels v Honourable Christopher John Hurford, Minister of State for Immigration & Ethnic Affairs
[1985] FCA 384
•01 AUGUST 1985
Re: ROBERT WILLIAM ARTHUR SPENCER SAMUELS and PHYLLIS JOYCE SAMUELS
And: THE HONOURABLE CHRISTOPHER JOHN HURFORD, MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS
No. VG 169 of 1985
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.
CATCHWORDS
Administrative Law - judicial review - immigration - application for stay of deportation order - test to be applied on application for interlocutory injunction - applicant convicted of an offence in New Zealand and sentenced to a period of imprisonment of not less than one year - applicant not required to seek an entry permit for entry into Australia - whether deemed to be a prescribed non citizen under s.16(1) of the Migration Act.
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958 ss.16(1), 18.
HEARING
MELBOURNE
#DATE 1:8:1985
ORDER
The Notice of Motion dated 24 July 1985 be struck out.
The application for a stay of the deportation order dated 31 July 1985 be refused.
There be no orders as to costs.
JUDGE1
This is an application for the stay of a deportation order pending the hearing of an application pursuant to the Administrative Decisions (Judicial Review) Act 1977. The order was made yesterday after a previous order dated 12 June 1985 had been revoked. I also have before me a notice of motion dated 24 July 1985 and returnable today, seeking to stay the previous deportation order of 12 June. That notice of motion has become pointless because of the revocation of the order to which it relates. It will accordingly be struck out and I shall hear submissions as to any orders for costs which may be sought.
Counsel for the applicants has proceeded by oral motion to seek a stay of the latest deportation order, relying on the affidavits filed in support of the notice of motion now struck out. Counsel has informed me that he has a copy of parts, at least, of the relevant file of the Department of Immigration and Ethnic Affairs, obtained pursuant to the Freedom of Information Act 1982. He also has a copy of the departmental submission on which the latest deportation order was based, handed to him this morning by counsel for the Department. None of these documents was placed in evidence before me.
The first applicant is a New Zealander who came to Australia in 1976. It is conceded by his counsel that at the time he entered the country he was a person who had been convicted of a crime and sentenced to imprisonment for a period of not less than one year. This, pursuant to s.16(1) of the Migration Act 1958, was the ground on which the deportation orders were issued.
The evidence establishes that, not long after his arrival in Australia, the first applicant committed several serious offences for which he was imprisoned for 12 years. He was granted parole a short time ago, but is still being held in custody pursuant to the provisions of the Migration Act 1958. The only other important fact to which I need to refer at this stage, is that on 11 July 1985 the first applicant married, at Her Majesty's Prison, Pentridge, one Phyllis Joyce Samuels, the second applicant, a woman whom he had met while in prison at Ararat by reason of the fact that she was the mother of a fellow inmate.
It will be seen from the date stated that this marriage could not have been taken into account at the time when the deportation order of 12 June was made. It was common ground that this provided the explanation for the revocation of that order. Counsel for the applicants has urged upon me four grounds of challenge to the Minister's recent decision to deport, which he says indicate that there is in this matter a serious question to be tried.
It is clear that this is the test which I must apply in determining whether an interlocutory injunction should be granted. See Epitoma v AMIEU (1984) 54 ALR 730 at page 734, and cases there cited. If I am satisfied on that score, there can be no doubt that the balance of convenience would be in the applicants' favour and an injunction should issue.
Two of the grounds advanced for the applicants can be disposed of briefly. They relate to the fact of the marriage, and the other fact that last November the first applicant suffered an injury while working in prison, for which he intends to take civil proceedings against the prison authorities. There is nothing to show that these matters were not before the decision-maker when the decision was made, and given the weight which he saw fit to give them. Although deportation would make the conduct of a civil action more difficult, it would not make it impossible, and I do not doubt that an entry permit would be granted for the purposes of any hearing - which would necessarily be a long way off, because no proceedings have yet been issued.
Neither this consideration nor the consideration of the marriage, in all the circumstances of this case, is of such great weight as to support an inference that these matters were not in fact taken into account by the decision-maker, or that he exercised his power in a way which no reasonable person could have done.
It was next argued for the applicants that a term of the first applicant's parole was that he not leave the state of Victoria, but if he were deported and later was allowed by the Commonwealth to return because of his marriage, he might well be arrested and returned to prison for breach of parole. I can only say that I am not prepared to act on the assumption that the Victorian parole authorities would behave so unjustly.
The main argument advanced by counsel for the applicants was that, because the first applicant did not need an entry permit to enter Australia from New Zealand in 1976, the provisions of s.16(1) of the Migration Act 1958 do not apply to him. That section provides, so far as is relevant, as follows:
"16.(1) Where .... a person who .... entered
Australia .... was not, at the time of that entry, an Australian citizen and who;....
(c) at the time of entry .... was a person
of any of the following descriptions, namely
(i) a person suffering from a prescribed
disease or a prescribed physical or mental
condition;
(ii) a person who has been convicted of a
crime and sentenced to .... imprisonment for a period of not less than one year;....
that person shall .... 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 recognizes him to be a person referred to in this sub-section."
It was argued for the applicants that this section could not apply to the first applicant because he was not required to seek an entry permit when he came to Australia. In my view, that argument is not tenable. Paragraph (b) of the sub-section deals with persons who give false information to gain entry to Australia. Paragraph (c), in contrast, operates on certain objective facts. In the case of a person suffering from a prescribed disease, that fact may not be known to anyone at the time of entry, but in my view the person would still be deemed a prohibited non-citizen unless an appropriately endorsed entry permit was obtained after the disease was diagnosed.
I can see no reason why the section should not be read according to its plain words. It does not exempt New Zealanders, as it exempts Australian citizens, and it makes all persons who have been convicted of serious offences before entering the country prohibited non-citizens liable to deportation under s.18 of the Migration Act 1958, unless they have obtained an appropriately endorsed entry permit. The fact that this particular non-citizen would not have required any entry permit were it not for his criminal record, seems to me to be quite irrelevant to the proper interpretation of the section.
For these reasons I am of the opinion that the applicant has failed to demonstrate that there is a serious question to be tried, and the application for an interlocutory injunction will be refused. I will hear submissions as to costs.
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