Shand, I.G. v Minister for Immigration & Ethnic Affairs

CATCHWORDS

ADf4INISTRATIVE LAW - judicial review - interlocutory application for stay of deportation orders and release from custody - whether sufficiently arguable case - whether Minister has power to deport once person assimilated into community - prior right to citizenship - whether sufficient consideration given to prohibited non-citizens' prior residence in Australia.

Administrative Decisions (Judicial Review) Act (Cth) 1977: S. 5.

G 517 of 1986

LOCKHART J.

18 NOVMBER 1986

SYDNEY

’ .

c	)
)

SOUTH WE3 DISTRICT REGISTRY	)	No.	G 517	of	1986
)

!XNEWL

DIVISION

)

B ! z ! z s N :

JAN GEORGE S

PATRICIA ANN SHAND and

PAUL SHAND

Applicants

m:	MINISTER FOR IMMIGRATION AND FPHNIC AFFAIRS

Respondent

M-TEMPORE REASONS FOR JUDGMENT

LOCKHART J.

This is

application under

the

Administrative

pecisions (Judicial Review) Act 1977 by three people who seek to review decisions of a Delegate of the Minister for Immigration and Ethnic Affairs made on 14 November 1986 to refuse to grant permanent residence status to the applicants and decisions to make deportation orders against each of them. Today the applicants seek an order staying the operation of the deportation orders pending the final hearing of the substantive application for review and an order releasing the two male applicants from custody. They have been in custody at the Villawood detention

centre since 20 October 1986.	The female applicant is not in
Custody.

NEM SOUTH MALES DISTRICT REGISTRY	)	No. G.517 of 1986
)
GENERAL DIVISIOq	)

B ! z m ! z m :	JAN GEORGE S W ,
PATRICIA ANN SHAND and
PAUL SHAND

Applicants

m: ANDm

MINISTER FOR IMMIGRATION

IC AFFAIRS

Respondent

JUDGE WING ORDER:

LOCKHART J.

DATE OF ORDER:

18 NO-

1986

HHERE ORDER m:

SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

That the deportation orders made

on 14 November 1986

against Ian George Shsnd. Patricia Ann Shand and Paul Shand be stayed until the final hearing of this application or further order on condition that the applicants prosecute this application for judicial review with all due diligence.

2. That the applicants, San George Shmd and Paul Shand be released from custody on the following

conditions:

A brief recitation of the relevant facts is called for. Ian George Shand, the first applicant, married

Patricia Ann

Shand, the second applicant, in London, England, on 27 July 1965.

Hhilst in England their

son, Paul Shand, who is the third

applicant, was born.

Hr. and Hrs. Shand applied for the right to

migrate to Australia and that application was approved. They arrived in Australia on 13 January 1969. It appears that their son, Paul, accompanied them, as did a son of Mrs. Shand by a

previous marriage whose name is Anthony Madden.

A daughter,

Joanne, was born to Mr. and Hrs. Shand in Australia on 17

November 1970.

In January 1972 the whole family travelled to

England and stayed there

for about two years before returning to

Australia between April and Hay 1974.

Hr. Shand and Hrs. Shand then decided early in 1978 to

travel to Canada together with the other members of their family.

Ur. Shand has sworn that he loved living in Australia. but that

he wanted to see other

parts of the world:

“We migrated to Canada only because It was

easy to do so, and as we intended to travel

all over Canada we needed to have a long-term

visa. Only migration could enable us to have

a long visa.

I‘

He said he thought the experience would be good for the family, especially the children. Hr. Shand also said that he never

thought he was

“leaving Australia for good’.

He said that he

then considered Australia to be his home as he still does.

(a)	That each of them reports twice weekly on

Tuesdays and Fridays to the office of the

Department of Immigration

and

Ethnic

Affairs,

5th Floor,

C mmonwealth

Government Centre.

Chiflty

Square,

Sydney, between the hours of 9.00am

and

4.00pm.

(b)

That the applicants, Ian George Shand and

Paul Shand

not

change

their

residential address without prior written

permission from

the

D partment

Immigration and Ethnic Affairs

and

without prior written notice by them to

the Department of the changed address and

telephone number, if any.

3. Costs of today's application be costs in the proceeding.

4. The matter is specially fixed for final hearing on 19

December 1986.

5. The evidence at the final hearing shall be primarily by

way of affidavit subject to cross-examination. if required.

The applicants shall file and serve all

affidavits upon

which they propose to rely on or before 2 December 1986.

7. The respondent shall file and serve all affidavits upon which he proposes to rely on or

before 9 December 1986.

The applicants shall serve

and

file all affidavits in

reply on or before 12 December 1986.

3 .

Each party is at liberty

to apply in the meantime on

hours notice.

10.

"he transcript of my reasons for judgment

and of the

orders made today be expedited.

-'	NOTE	Settlement and entry of orders I s dealt with in Order 36 of
the Federal Court Rules.

3 .

Mrs. Shand's passport was not endorsed or stamped with

an "exitfre-entry" visa when the family left Australia. Mr.

Shand said that he does not know if his passport was so stamped

as he does not have it

in his possession, although a copy of it

appears to be attached to the report to the Minister which is nov

in evidence.

In order to

come back to Australia, the family

had

discussions with officers of the Australian Consul General in

Ontario, Canada.

They were granted re-entry visas in January

1981 on the basis that they had to return to Australia within a limited time. This varied in the case of each of the Shands but was approximately two months from the date of the issue of the re-entry visas. The applicants decided not to leave Canada and return to Australia within that time. The step-son of Mr. Shand

and the son of

Mrs. Shand, Anthony Madden, returned

to Australia

in April 1981. He is now an Australian citizen.

Paul Shand, the

son of the marriage, returned to Australia in September 1982, Mr.

Shand in February 1983

and Mrs. Shand and the daughter Joanne, in

April 1983. Joanne is an Australian citizen.

Mr. and Mrs. Shand and their son. Paul Shand, came back to Australia as the holders of visitor visas

because their

re-entry

visas

had

expired.

Each of them, upon entry,

was

granted a temporary entry permit which was valid, in the case of

Hr. Shand, for three months; in the case of Mrs. Shand for six

months: and in the case of Paul Shand also for six months. The

* .

permits were endorsed in each case "Employment prohibited without

written permission of an authorized officer." However, since

they have returned each has engaged in employment which, prima

facie, appears to be contrary to the terms of the endorsement on

the temporary entry permits.

On 20 October 1986 the

applicants were interviewed by

officers of the Department of Immigration and Ethnic Affairs and, following the interview, Mr. Shand was arrested under s.13 of the )Jiffration Act 1958. He is now held in the Immigration Detention

Centre at Villawood.

Mr. Paul Shand was also arrested on the

same day. Hrs.

Shand, according to the Departmental file, has

not been in custody but

has been required to report twice-weekly

to the Department.

Hrs.

Shand

presently

lives in rented

accommodation at Cammeray with her daughter, Joanne,	who attends
school in Sydney.

The grounds for the application for review are not applicants says that this is because, at this stage, the appropriate evidence is absent and, at the tine the application was formulated, accees to the report of the Minister or his Delegate was not available. The legal advisers of the applicants should consider the application with a view to applying to amending it further so that the Minister (or his Delegate) and the Court know precisely the alleged grounds which are said to vitiate the decisions to which I have referred.	clearly	stated	in	the amended application. Counsel for the
I

* .

I shall, however, briefly summarise the grounds as they have been advanced by counsel for	the applicants in support of
the application for review.

First, it is said, relying on the judgment of the High

Court in m e Uinister for Immicrration and Ethnic Affairs v.

Pocchi 149 CLR 139, that

the case is a plainly arguable one

because a serious question arises as to whether the Minister has

power to deport a person in valid exercise of the migration power

conferred upon the Commonwealth by 9.51 of the Constitution once

they have been assimilated into the Australian community. It is

sought to be argued in this case that the three applicants were

assimilated into the Australian community

not long after their

first arrival here in 1969 and that their intervening sojourns in England and Canada, notwithstanding the length thereof in each

case, has not adversely affected their

status of being persons

who have been assimilated into the community. The applicants, so it is said, did not abandon Australia as their place of residence or domicile of choice.

Second, it is said that the conduct of Australian consular officials in Canada is such that they misconceived the true status of the applicants by not allowing them to re-enter Australia in that they had acquired, so it is said, a prior right to citizenship.

Third, it is said that the Minister erred in

exercising

his discretion by not taking into account or not giving sufficient weight to considerations operating in favour of the applicants from their prior residence in Australia.

say, as the evidence stands at the moment, although it may change in the future, I see little substance

I must

the second and third grounds of attack and I am not persuaded on the material before me at this stage that there is a sufficiently arguable case to support those matters but this may change as the evidence unfolds.

The first ground of challenge, however, is

of a more

substantial nature. The only supporting evidence I have before

me is that of the applicants themselves and I have already

referred to the evidence which is relied upon to support this ground of challenge. Sparse though the evidence is, it is

sufficient to establish a reasonably arguable case.

I say no

more about it at

this stage.

The question then arises as to what should be done in this case. It is a somewhat unusual case. Mr. and Mrs. Shand migrated to Australia in 1969 and they stayed here for some few years with the intention of remaining in this country. Then they developed migratory habits, taking them for about two years to England and then, after some years again in Australia. to Canada from where they returned to this country.

., d

0 .

l .

Mr. and Mrs. Shand have been married for 21 years.

The

son of Hrs. Shand and the step-son of Mr. Shand has lived with them for much of his life and he is now an Australian citizen. The son of their marriage, Paul Shand, the third applicant, is 21 years of age and has lived with them all his life and the

daughter, Joanne, who is now only 16 years of age and attends

school, is an Australian citizen by reason of her birth in this

country. The impact upon the family of their forced departure

from this country would be profound if not shattering. These

matters have no doubt been taken into account by the Minister and

it is not for the Court to substitute its discretion for that of

the Minister, nor would

I attempt to do so. All this Court is

concerned with is to correct any errors of law which may have been made by the Minister or his Delegate in the making of any of the relevant decisions.

However, I am considering the matter today purely on

interlocutory footing. Mr. Shand is a skilled motor mechanic and, sparse though the evidence is, he appears to have pursued that vocation in this country, although illegally, since his return to Australia in 1983. Apparently Mrs. Shand has also resumed employment since her return in the same year, again illegally, but nevertheless they have in fact worked and have not been a financial burden upon this community. There I s no suggestion by the solicitor who appears for the Minister of any criminal activity on the part of any of the applicants. Also,

8 .

once interviewed by officers of the Department of Immigration and

Ethnic Affairs,

it is not suggested that the applicants were

other than completely frank with them.

I think in the

interest of justice this case should

brought to a

speedy final

hearing before the end

of term this

year. In

the meantime the deportation orders should be stayed.

So far as the

question

of release from custody is

concerned, there are decisions of this Court which consistently state that in cases of this kind the Court should not interfere with the policy of the Misration Act. That policy is that

prohibited non-citizens should be held in custody in the

absence

of exceptional or special circumstances; see for example Piroslu

v. The Minister of State for .Immisration and Ethnic Affairs 55

FLR 99, Unlusenc v. The Minister for Immisration and Ethnic

Affairs 43 ALR 569.

Special circumtances do exist in this case

and I have referred to them. Provided appropriate conditions are imposed namely, that Mr. Shand and Paul Shand, report to the Department and pursue this application with all due diligence and

that the Commonwealth retains the relevant

passports,

the

applicants should be released	from	custody	pending	the
disposition of their case.

-Y

* ..

* \

The Court makes the following orders:

1. That the deportation orders made on 14 November 1986

against Ian George

Shand, Patricia Ann Shand and Paul

Shand be stayed until the final hearing of this

application or further order on

condition that the

applicants prosecute this application for judicial

review with all due diligence.

That the applicants, Ian George Shand and

Paul Shand be

released from custody on the following conditions:

That each of them reports twice weekly on

Tuesdays and Fridays to the office of the Department of Immigration and Ethnic Affairs. 5th Floor, Commonwealth Government Centre, Chifley Square,

Sydney, between the hours of 9.00am	and
4. OOpm.

That the applicants, Ian George Shand and

Paul Shand do not change their residential address without prior written permiesion from the Department of Immigration and Ethnic Affairs and without prior written notice by them to the Department of the changed address and telephone number, if any.

3. Costs of today’s application be costs in the proceeding.

The matter is specially fixed

for final hearing on 19

December 1986.

5. The evidence at the final hearing shall be primarily by way of affidavit subject to cross-examination, if required.

10.

6. The applicants shall file and serve all affidavits upon which they propose to rely on or before 2 December 1986.

7. The respondent shall file and serve all affidavits upon

which he

proposes to rely on or before 9 December 1986.

8. The applicants shall serve and file all affidavits in reply on or before 12 December 1986.

Each party is at liberty

to apply in the meantime on 24

hours notice.

10.

The transcript of my reasons for judgment

and of the

orders made today

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Couneel and Solicitors for	J. lladdox instructed by
the Applicants	McGrath & Associates
Solicitor fo the Respondent	C. Williams from Australian Government Solicitor's Office
Date of Hearing:	18 November 1986
Date Judgment Delivered:	18 November 1986

[1986] FCA 585

18 Nov 1986