S.L. Williams v The Minister for Immigration and Ethnic Affairs

[1984] FCA 467

FURTHER DISTRIBUTION UNNECESSARY

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THE	FEDERAL	COURT OF	AUSTRALIA	)
1

VICTORIA	DISTRICT	REGISTRY	)	No. VG 331 of 1984
1

GENERAL D I V I S I O N 1

B E T W E E N :

S .L. WILLIAMS and OTHERS

A N D :

THE MINISTER FOR I?@IIGRATION

AND ETHNIC AFFAIRS

21 DECEMBER, 1984 KEELY J.

ORAL REASONS FOR JUDGMENT

HIS HONOUR: The applicants have lodged an application under

section 5 of the Adminlstrative Decisions (Judicial

Review) Act to review what I see to be eight decislons

made by the Minister of State for Immigration and

Ethnlc Affairs (The Respondent) and/or by hls offlcers

and/or by his delegates, including the making of

deportation orders in respect of the first and second

named applicants. The three applicants are persons aggrieved and they seek various orders includlng

an order that the deportatlon orders are vold or

invalid. The applicants have taken out a notice

of motion seeklng orders that:

1. The operation of the decislon of the respondent

or his delegate made the 14th day of November that the first-name& and secondLnamed applicants be deported from Australia be stayed and suspended until further order.

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2.

All proceedings to deport the first-named be stayed until further order.

I accept that the harmful consequences to the

appllcants of a fallure to make an order staying

the orders of deportation would outwelgh any

harmful consequences to the respondent, if such

a stay were granted, and that it may well be that

the enforcement of the deportation orders would

render nugatory any success by the appllcants

in the proceedings.

' However, as the full court sald In Faingold

and Others versus Zammit and Another, in an

unreported declslon on 20 January 1984, I quote

from that decision at page 10:

In our opinion it will be difficult

' for an applicant to show that reasons

or circumstances exist-which make It

just that the court should make the

order sought unless It 1s demonstrated

that the applicant has a point of

substance to argue whlch, If successful,

wlll result in judgment in hls favour.

There are two broad bases on whlch Mr Rose

of Counsel for the appllcants contends that there

is "a point of substance to argue". The flrst 1s

that the flrst-named appllcant was the holder of

an entry permit for some years. On the present

state of the evidence, it 1s not entlrely clear

whether she was formally the holder of such an

entry permlt or whether she was slmply permltted

to reside In Australla with her mother.

However, the respondent conceded that she

had validly entered Australia in 1967 and remained

here until 1972. Accordingly, for present purposes,

I shall assume that she was the holder f a valid

entry permlt during that period. Mr Moshlnsky of

counsel, on behalf of the respondent, submitted that

section 9(1) of the Migration Act 1958 operated to

deprive the first-named applicant of any benefit

for present purposes flowlng from the holding of

such a valid entry permit in those earlier years.

section 91 is in the following terms:

Where a non-citizen who is the holder

of an entry permit leaves Australia,

the entry permlt has no force or effect

in relation to him upon-or after his

re-entry into Australla.

wilmin 21.12.84	39
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Notwithstanding the submissions to the contrary,

put by Mr Rose, I accept Mr Moshinsky's submisslon

that the first-named applicant at the materlal time

fell within the words of section 9 (1) :

permit leaves Australla . . . . . . . . --- who is the holder of an entry

and accordingly that her entry permit had "no force

or effect in relation to her upon or after her

re-entry Into Australia."

It appears that since the period 1967 to

1972 the first-named appllcant has, on three occasions,

been granted an entry permlt, each for a period of

six months. Those permits were granted In 1974,

1975 and 1983 respectively. In my opinion, nelther

the material presently before the court, nor the

submissJons put on behalf of the applicant, show

any point of substance to be argued on thls aspect.

Secondly, Ur Rose relies upon a number of grounds,

which are the same as or substantially the same

as the grounds rejected by this court In Kioa versus

the Minlster for Ethnic Affairs 1984 53 Australlan

Law Reports 658. An appeal from that declslon was

dlsmissed unanimously by a full court on 3 October

1984. See also a declslon of another full court in

Smlth versus the Mlnister, reported In 1984 53

Australlan Law Reports 551.

Mr Rose has sought to rely upon the fact that

special leave to appeal from the declslon of the

full court of thls court in Kioa's was granted by the

High Court of Australla on 16 November 1984 and that

that appeal is to be heard by the full court on

5 February 1985. However, in my opinion, the

application for a stay must be determined upon

the

matters at present before the court and upon a

present state of the law.

The law, on those matters, dealt with by the

full court in Kioa's case, and in Smlth's case,

is blnding upon me as a single judge of thls court,

add-that law is contrary to the proposed contentlons

of the applicants. In my view, it would not be proper

for this court to stay the operation of a deportation

order made under the Migration A c t simply on the basis

that the full Hhgh Court might at some future date

authoritatively determine that the relevant law is

different from that acted upon by the full court in

those two cases.

wilmin 21.12.84	40
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.

In those circumstances it is not necessary

f o r m e to cons ider the o ther submiss ion put by

M r Moshinsky on behalf of the respondent, namely,

tha t the mater ia l before the cour t does not

suppor t the conten t ion tha t there was i n f a c t any

denia l o f na tura l j u s t i ce t o t h e a p p l i c a n t s . A s

l

t o t h a t submission it was made c l e a r from the ba r

t a b l e t h a t t h e r e would be a d i s p u t e a s t o the f ac t s .

Accordingly the motion by t h e a p p l i c a n t s is dismissed.

H I S HONOUR: The app l i can t s a re o rde red to pay the respondents

cos t s of and i n c i d e n t a l t o t h i s n o t i c e of motloq.

HIS HONOUR: Thank you, gentlemen. The court is adJourned

s ine d i e .

AT 4.52 PM THE MATTER WAS ADJOURNED

INDEFINITELY

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