Shamsabad v Minister for Immigration & Ethnic Affairs

[1992] FCA 531

JUDGMENT NO. sg! ..._I ..L

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 237 of 1992

1

GENERAL DIVISION 1

BETWEEN:  JAHANGIR AHMADI SHAMSABAD

Applicant

AND :  MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS

Respondent

C O W :	FOSTER J
MW:	30 APRIL 1992
PLACE	X SYDNEY

REASONS FOR JUDGMENT

(Extempore)

--

HIS HONOUR: 22 April 1992 the applicant in these proceedings was refused the grant of a border visa of Visa Class 773. He has commenced proceedings in this Court by way of application for an order for a review of that decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The application has been filed and served and is relevantly listed for a directions hearing in the near future. The application was brought on the basis that the result of the refusal of the application for the visa could result pursuant to relevant regulations, in his

immediate deportation from Australia. Indeed, in view of the

fact that he has never had a relevant visa, he is not currently an entrant into Australia at all, and he is merely being held in custody pursuant to the relevant regulations until his status is determined.

The matter comes before me today as a result of a notice of motion taken out urgently and in respect of which short service was granted. That notice of motion seeks that the respondent be restrained from removing the applicant from Australia prior to a decision being made by this Court on his application. It also seeks an ancillary order dealing with the matter of authorisation under s 89(5 ) of the Miaration Act 1958 (Cth) ("the ) in respect of the relevant airline company. The question that has been argued before me on the notice of motion is whether or not there exists a serious question to be tried, it being contended, of course, that in the event of there being no such serious question then the respondent should not be restrained from taking the course that it proposes, namely deporting the applicant notwithstanding the existence of his application to this

Court.

Presently, I do not have anything before me that could be described as the full material that would necessarily be placed before the Court at the hearing of the application.

I have a quite full memorandum of the decision-maker,

Ms Ratano, detailing her deliberations and ultimate conclusions as to the non-granting of the border visa to the

applicant. In the application for review, and in the submissions that have been made to me, those reasons and the reasoning process have been challenged as showing relevant errors of administrative law.

As I have come to the conclusion after some hesitation that there is sufficiently demonstrated to be a serious question to be tried, it is undesirable that I go into any depth at all as to the reasons that I have come to. The ultimate question as to whether the decision was flawed for the reasons advanced must of course be made on a full consideration of the matter. It is apparent that a full consideration will necessarily involve a consideration of further material placed before the Court by the decision-maker in support of the minutes of decision which have been placed before the Court at this stage.

There are questions raised as to whether the

decision-maker merely adopted views expressed as to the

credibility of the applicant and of the reasons advanced for his failing to obtain a visa in Iran at the time he originally	left that country. Also, it is said that the decision-maker
merely adopted the reasons provided by the tribunal that determined a prior application by the applicant for refugee status. It is not clear on the material before the Court at this stage whether she may have been influenced on questions of credibility by those findings, rather than by performing an independent assessment.

There is also the question whether in determining whether the applicant had a good reason for not holding a visa under reg 111(2)(a)(iii) of the Migration Regulations, she failed to take into account the fact that the attempt to enter Australia without a visa on the last occasion of the applicant presenting himself for entry at Mascot did not originate simply from the fact that he was sent to Australia involuntarily having been refused admission by the British Authorities when he arrived in England.

There is some prima facie indication that these matters were not considered. There is also a question as to whether they should, as a matter of law, have been considered. It is not appropriate for me to determine those matters at this point of time. I merely note that they are to be raised and state that, in my view, they do raise serious questions to

be tried. There is no argument put to me on the balance of

convenience. The balance of convenience clearly favours the

applicant.

I therefore propose to grant the orders sought in the notice of motion, as amended by me. In so doing I express the view that clearly this matter, as indeed all matters of this kind, should be disposed of as rapidly as possible. When the matter comes before the Court for directions it may be anticipated that the Court will be anxious to ensure that outcome is achieved.

I therefore make order 1 as asked, but delete the words "taking any action to remove" and substitute the words "from removing".

I make order 2 as asked, but delete the words "allowing the said master . . . " to " . . .specified by the Court"

and substitute the words "extending the period for complying
with the requirement until the further order of the Court."

It is also to be noted the Court accepts an undertaking in the terms of order 2. I order that the costs of the ex parte appearances before me today and the costs of today be costs in the cause.

I certify that this and the preceding four

(4) pages are a true copy of the reasons

for judgment herein of the Honourable Mr

Justice M. L. Foster.

Associate: F I & ~ L	!.
Date:	30 APRIL 1992

A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:	MR G. CRADDOCK
INSTRUCTED BY:	LEGAL AID COMMISSION
COUNSEL FOR THE RESPONDENT:	MS D. WATSON
INSTRUCTED BY:	AUSTRALIAN GOVERNMENT SOLICITOR
DATE OF HEARING:	30 APRIL 1992
DATE OF JUDGMENT:	30 APRIL 1992