Sim, Geok Ngoh v Minister for Immigration

[1988] FCA 796

IN TEE	FEDERAL COURT OF AUSTIULIA	1 1
GENERAL DIVISION	1	No. G1095 of 1988
1
NEW SODTE WALES REGISTRY	1

Re :	GEOK NGOE SIM
-

Applicant

- And : MINISTER FOR IMMIGRATION

Respondent

CORAM: Einfeld J

-	DATE : 14 July 1988
PUCE: Sydney

EX-TEMPORE

The applicant in these proceedings entered Australia	as a visitor on 27
May 1985.	The evidence, as it presently stands, indicates that she was

the holder of a temporary entry permit valid for a stay of six months

been detained at the

and that the permit was endorsed "employment prohibited." No further

temporary entry permit was granted to her and, on the expiry of the temporary entry permit in question, the applicant became and remains a prohibited non-citizen. This is the consequence of the operation in the present case of section 7(3) of the Migration Act 1958.

On 24 February 1988, the applicant was located In Wagga and taken into

Villawood detention centre in New South Wales. On 6 April 1988, an order was made under section 18 of the Migration Act for her deportation.

By letter dated 11 July 1988, the respondent's department notified the

solicitor for the applicant that arrangements had been made for the

applicant's	departure from Australia tomorrow, Friday 15 July	1988.
Upon the	apprehension of the applicant on 24	March 1988, there was
completed a report of interview,	a copy of which is	in evidence as
exhibit 2.	It would appear that It was explained	to the applicant that

she might request the assistance of an accredited interpreter, and	it
was arranged that the interpretation should	be conducted by one Wllliam

S a . I am informed by counsel for the applicant that William Slm is a

minor of some 13 or 14 years of age.	The applicant herself was born in
Singapore on 31 January 1940.

Exhibit 2 contains, In part 6, various pro forma questions under the heading "Attitude to Deportation/Voluntary Departure". The solicitor

for the respondent urged the court to take the view that the material

provided under the heading in part 6 amounted to an application by the

applicant for the grant of a further temporary entry permit, together

with a grant of pemanent resident status because of the existence of strong compassionate or humanitarian grounds within the meaning of section 6A(l)(e) of the Migration Act. Eowever, I am at present by no

means persuaded that that is a correct characterization of what appears

to have taken place on 24 March 1988.

On 18 May 1988, the solicitor for the applicant, having in the meantime

obtained instructions, forwarded to the respondent's department in Canberra an application for permanent residence on the basis I iave

described. and an application for a further temporary entry permit.

These applications were based on the hardship which it was asserted

would be caused to the applicant if she were forced to separate from her

closest relatives in Australia. Eer relatives include her niece and

nephews for whom she has cared and in relation to whom it is said she

occupies the position of a de facto parent.

The applications were refused and the decision was communicated by another letter bearing date 11 July 1988 from the department to the

solicitor for the applicant.	The letter, omitting formal	parts, reads
as follows:

On l July 1988 Miss Sun's applications were considered	by a
delegate of the Minister for Innugration, Local	&vernment

and Ethnic Affairs. The delegate then decided to mintain

the earlier decisions to refuse permanent residence and the grant of a further temporary entry pennit and to order Miss

Sim's deprtation.

Iurangements to effect Miss Sirn's departure from Australia

are proceeding.

The applicant now seeka ordera by way of injunction to prevent her

deportation pending an application for judicial review of all the

relevant decisions.	The question for inmediate resolution is whether
the application for judicial review raises a serious issue	to be tried.
The applicant first directs attention to the second sentence	of the
second paragraph of that letter, and asserts that	there were, indeed, no

earlier decisions which might have been maintained. It is said that

there were no prior applications for permanent residence or for the grant of further temporary entry permits, and that the first such

application was made, as I have described, by the applicant's solicitor

on 18 May 1988. The letter is said to indicate that the delegate was

proceeding on a false basis; in particular, a false basis as to what, in

truth, is	to be drawn from the report of interview, exhibit number	2.
It is also submitted that	the applicant has been prejudiced	by a failure

to exercise the discretlons involved. Accordingly, it is said that there is a serious-case to be tried as to the reviev of the decision

communicated by	the letter of 11 July 1988.
It is also argued that there has been	a failure to take into account the

adverse effect upon the children of the deportation of the applicant from Australia, and that the expression in section 6A(l)(e) of the

Ulgration Act, "strong compassionate or	humanitarian grounds", includes
the Impact of the proposed deportation or proposed refusal	of permanent
status upon third parties, in this case being the children	or those to
whom the applicant stands in loco parentis.

There is perhaps some substance in that complaint but I would prefer to rest my decision on the matter earlier adverted to concerning the significance apparently attached to the maintenance of earlier

decisions, as referred to in the letter of 11 July 1988. In my view

there is at least one serious question to be tried, and the balance	of
convenience is, of course, overwhelmingly in favour of	the applicant.
Accordingly.

1. I order that until further order, and upon the applicant by her

counsel giving to the court the usual undertaking as to damages, the respondent take no steps to deport the applicant from Australia.
2.	I direct hat the applicant file and serve any amended
application and any further affidavits upon which she relies on or before 29 July 1988.
3.	I direct that any affidavits for the respondent be filed and

served on or before 5 August 1988.

1. I note that the solicitor for the respondent expects the section

13 statement requested on 11 July 1988 to be available by 29
July, 1988.

1. I stand the proceedings over for further directions at 9.30 am on 12 August before me. Hopefully a hearing date will be given then.

2. Costs reserved.

3. Liberty to apply on three days notice.