Singh-Dhillon, C. v Mahoney, J.R

. I

CATCHWORDS

Immiuration - applicant an Indian citizen from the Punjab

applicant. who had already been deported on an earlier occasion. entered Australia illeuallp - here as prohibited non-citizen for

5 years

- workinu during this time

deportation order siwed -

applicant arrested but escaped from detention centre - applicant re-arrested in hospital after beinu shot durinu police raid on

house in which he lived

- review souuht of decisions to make

deportation

order

and

execute

- reliance

placed on

Minister's failure to take into account applicant's fitness

travel, his exposure to danger

of arrest or persecution if

returned to Puniab and applicant's

wish to prosecute proceedinqs

auainst

members

the

N.S.W.

Police

Force

for damaaes -

submission that decisions disclosed unreasonable exercise	of
power.
MJ-qration Act 1958. ss . 18. 20
CHHINDA SINGH-DHILLON V. JOHN RICHARD MAHONEY AND OTHERS
No. A.C.T. G22 OF 1986
Coram: Sheppard J. Date : 9 October 1986 Place: Sydney

. I

111 THE ETDEF!! COURT OF “ F A L I A

)

SEW SOUTH WALES DISTRICT REGISTRY

)	m. ACT GZZ of 1986

GENERAL DIVISION

)

BElwEEN

CHHINDA

SINGH-DHILLON

Applicant

AND	JOHN RICHARD M O N E Y AND
OTHERS

Respondents

JUDGE MAKING

ORDER : Sheppard J.

DAm OF ORDER

9 October 1986

ImEFlE MADE

: Sydney

THE COURT ORDERS AS FOLLOWS:

The

xecution of the

deportation order made

April 1986 be

stayed until fourteen days after

the examination of Assistant Commissioner (Crime) Nixon of the New South Wales police force pursuant to Part 3 of the Rules of the Supreme Court of New South Wales.

-l

h .

Upon the conclusion of that examination, order the

Minister, by himself

or his Delegate, to consider

xhether

the

execution

of the deportation order

should be

deferred pending the

outcome of any

proceedings instituted by the applicant against

any

1,'

member of

the New South Wales police force

against a nominal defendant appointed

pursuant

the Claims against the Government	and Crown Suits
Act 1912 (N.S.W.).

The application be otherwise

dismissed.

4. There be no order as to costs.

5. There be liberty to apply generally.

MOTE:

Settlement and entry of orders is dealt with in

Order 36 of the Federal

Court Rules.

! l

J€I THE FEDEPJLL COURT	IF	AUSTRALIA	)
1

JIEW SOUTH WALES DISTI	: d r REGiSTRY	1	MO. ACT	G22 of 1986
GEplERAL DIVISION	)

BEXWEEN

CHHINDA

SINGH-DHILLON

Applicant

.m	JOHN RICHARD MAHONEY AND
OTHERS

I '

l	Respondents
l

SHEPPARD J.

9 October 1986

i , I

HIS HONOUR: This

was

review

judicial

Registry

originally brought

Territory

South	New	but	Court.	of the	Wales
District Registry. It seeks the review of decisions to make

and to execute

a depbrtation order signed

by the Minister's

Delegate on	17	April	1986.	1
I I

It is	not disputed	I hat the applicant is	a prohibited
I 7

non-citizen by

reason

of the operation of

I '

sub-S. 6(1) of the

Misration Act

1958.

Nor are the following facts in issue.

On 22 May 1979 the applican , who is an Indian citizen, entered

Australia as a

visitor unde)r the name of Chhinda. He was

granted a temporary entry permit for one month. Upon expiry

of this permit he became

a	prohibited non-citizen or, more

correctly, a prohibited immigrant, to pick up the language of

the

statute

was

that

time.

The applicant

was

arrested and was deported on 29 May 1980 after the making of

deportation order on 26 May

1980.

The applicant again entered

Australia on 17 March

1981. He had come to Papua New Guinea

from West Irian. He travelled by dingy from Daru in Papua New

Guinea to Thursday Island. He was not granted

an entry permit

and has remained a prohibited non-citizen since that time.

Together with two other prohibited non-citizens, the applicant

chartered an aircraft and. on

17 February 1981, flew from

Thursday Island to Cairns. On 18 July 1985 deportation orders were signed in respect of the applicant and the two other persons with whom he entered Australia. At that time their

whereabouts were unknown.

On 30 October 1985 the applicant

was found in Melbourne. He was taken into custody. He said

that he wished to remain in Australia as it was very difficult

to live and raise children in India.

On 13 December 1985 he

escaped from the Maribyrnonq Detention Centre.

On 4 April 1986

the applicant was found in Griffith.

He was in the Griffith

Hospital where he was receiving treatment for injuries to his legs. He was taken into custody.

The general circumstances in which the applicant came

to be injured are not in dispute, but there is dispute about

the

detail

them.

Originally

counsel

for

the

Minister

claimed that documents relating to this aspect of the matter

were priviledged from production and inspection because their

production might disclose the identity

of a police informant.

As the

hearing progressed, counsel changed her mind and the

documer

Lts were produced and tendered. The principal document

is described as, "Field Report - Griffith, N.S.W.:

2-5 April

1986".

The

document

discloses

that

April

1986

Departmental officers received information that five male

Indian nationals. who were illegally in Australia, were working

on a vineyard at Yenda near Griffith,

N.S.W.

One of the five

was the applicant. The Field Report describes how a raid on the premises was organized with the assistance of members of the New South Wales police. Two officers from the Department

of Immigration and

number of police officers went to the

property at about 5.30 p.m.on

April. The premises were

unoccupled on their arrival and were searched.

A number of

documents were seized. The migration officers waited inside

the house, together with one of the police officers. Outside

five police officers took up positions in adjacent sheds and

buildings. Two other officers had parked their vehicle at an

adjacent property. The Indians returned at about

6.45

p.m.

One entered the house and was arrested after

a struggle. He

shouted a

warning to the others. Mr Johnson, who made the

Field Report and who was one of the migration officers present

in the house, said that he could hear police officers shouting,

"Stop1

' I ,

"Police1

'I and "Stop or I'll shoot

L 'I.

He heard three

shots fired. The police were armed with shot guns as well as

side arms.

In the course of the proceedings two further Indian

males were arrested.

Two others escaped.

A search

was

conducted of the area

but without success.

At about 11.45 a.m. on 4 September.

Mr Johnson

received a telephone call from a Mr McKenzie. a solicitor in Griffith. Mr McKenzie informed Mr Johnson that an Indian male

person had been found in the vineyard suffering what

appeared

to be gunshot wounds to both his

legs. He had apparently been

in the vineyard all night.	The person referred to by Mr
McKenzie was the applicant.	He was taken to the Griffith

Hospital suffering, so Mr Johnson said, a broken ankle and flesh wounds.

In his evidence the applicant agreed he was shot

during the raid. But

he denied that he was given any warning

before the shots were fired. He said that when he returned from work on 3 April 1986 he saw a number of people waiting for him and his companions. He noticed that two had guns. He

continued, "I was shot without any warning.

I then ran away."

In accordance with the Department's usual procedure a

recommendation was prepared recommending the revocation of the

'earlier deportation order signed on 18 July 1985 and

the

signing of a fresh deportation order.

The recommendation was

signed by Mr

J. Stankeuicius, Acting Director, Enforcement

Section, on 16 April 1986.

The recommendation was approved by

the first respondent, Mr J.R. Mahoney, the following day.

To say the least, the recommendation is elliptical as to the circumstances surrounding the applicant's arrest on 4 April 1986. But the Field Report earlier mentioned had been

made to Mr Mahoney, so that

he was in possession of the facts

stated in it by Mr Johnson. At the time Mr Mahoney approved the recommendation. he thus had full information. at least so

far as it could be got from the Department. as

the

circumstances surrounding the applicant's arrest and the shooting of him in the leg. However, he did not have information directly from any of the police officers present. He thus had no eye witness account.

The applicant had to remain in hospital for some weeks in order to receive treatment for his injuries.

However, he

has now recovered from the effects of them, at least to the

extent that he appears able to travel. The applicant wishes,

however, to bring proceedings against members of the New South

Wales police force for damages for the

injuries which he has

sustained.

In order to identify the police officers who were

present and to attempt to identify the police officer who fired the shot which caused the injuries, the applicant has instituted proceedings in the Supreme Court of New South Wales for preliminary discovery pursuant to Part 3 of the Rules of

that Court.

Those

proceedings

were

heard

and

September last.

On 24 September

Master

Hogan

delivered

judgment.

He ordered that Assistant Commissioner (Crime) Nixon

attend before the

Court for oral examination as to the identity

of the officers who shot the applicant.

The examination is to

take place on a date to be arranged between counsel.

Mr Nixon

is not availble until some time

later this month.

Since I reserved my decision, I have been informed by

counsel for the applicant

that

he has drafted and sent to his

instructing solicitor a petition under the Claims Auainst the Government and Crown Suits Act 1912 (N.S.W.) praying for the appointment of a nominal defendant who may be sued by the

applicant in respect of the shooting.

A delay of one to two

months is expected before a nominal defendant is appointed. Counsel has informed me, with the consent of counsel for the Minister, that he proposes to advise the joinder of so many of

the police officers who were involved

in the shooting as are

eventually identified, as well as

of the nominal defendant.

Counsel for the applicant

based his attack on the

decisions which are in question on two grounds provided for

the Administrative Decisions (Judicial Review) Act 1977, namely those provided for in paras. 5(2)(bl and 5(2)(g), as applied by

para. 5(l)(e).

In short, counsel submits that the decisions

were made without taking relevant considerations into account and were, in any event, such as to disclose the unreasonable

exercise of

the power to deport the applicant.

Three matters

were!

relied

upon. These were: -

i	I
i

At the time the

deportation order was made the

I ‘la)

applicant was not fit to travel.

This should

; I	have been known to the Minister’s	Delegate who
j /

! I	should not have signed the deportation order
! I	I	before satisfying himself that the applicant
I
I	was fit to be returned to India.
I

(b)	The Minister’s Delegate either knew, or ought to have known, that to return the applicant to India was to expose him to grave danger. This was because the applicant was a Siwl and there

is at the moment, and has been at all relevant

times, a substantial risk of persecution of Sikhs in India, particularly in the Punjab, from where the applicant comes and to which he could be expected to return if h e were deported.

The Minister’s

Delegate ought to have

realized

that the applicant might wish to institute proceedings to recover damages against those

‘ I

who were resnonsible for his iniuries.

It is first necessary to say something of the nature of the grounds upon which counsel for the applicant relies.

The ground of failure to take a relevant consideration into

account was recently the subject of consideration by the High

Court in Minister for Aboricrinal Affairs v Peko-Wallsend

Limited (31 July 1986, as yet unreported). The position is

summarized by Mason J. in paras. (a) to (e) on pp. 12-16 of his

judgment. I do not quote the entirety of what his Honour

there said but all is relevant and important for the purposes of this case. I do, however, quote the following passages from these paragraphs:

I' (a)

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ...

(b)	What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute

conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors

to refer to the factors which the d cision-	- and in this context I use this expression
maker is bound to consider - are not	expressly stated, they must be determined

by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant consider- ations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in

the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ..."

No criteria are provided for in s.18 of the Misration

The Minister's discretion is at large.

Counsel for the

applicant was unable, during the course of argument, to point to any matters arising from the subject-matter, scope and purpose of the Act which would lead to the conclusion that the Minister was obliged, as a matter of law, to have regard to any

of the matters upon which

reliance was placed in order to

attack the decisions in question. Counsel did refer me to a paragraph on p.8 of the current Ministerial Policy in relation to deportation. It is there said that the Minister or his Delegate may take into account a number of factors including the personal details of the illegal immigrant. But the use of the word "may" plainly indicates that the Minister has not obliged himself to take personal details into account in every

case. Furthermore, the policy cannot be relevant to the proper construction of the Act. For the purposes of this argument, the policy must be found within the Act itself and not elsewhere; the judgment of Mason J. in Peko-Wallsend makes this clear. In my opinion there is no warrant for concluding

that the considerations relied upon by counsel €or

the

applicant were matters which the Act, by reason of .its subject-matter, scope and purpose, obliged the Minister to take into account.

10.

So far as the ground

of unreasonableness is concerned,

the authorities are, with respect, usefully collected by Wilcox

J. in Prasad

v Minister for Immisration

and Ethnic Affairs

(1985) 6 F.C.R. 155; see pp.167-170. In short, the applicant,

in order to succeed on this ground, must demonstrate that the decision is so unreasonble that no reasonable official could ever have come to it; see Associated Provincial Picture Houses v Wednesburv Comoration C19483 1 K.B. 223 per Lord Greene M.R.

at p-230. One of the matters discussed by Wilcox J was the

question of whether

evidence of matters not before

the

Minister, actually or constructively, was relevant to the issue of reasonableness. Wilcox J. concluded, tentatively as he said, that the Court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker

would have learnt but for any unreasonable

conduct by him; see

pp.169-170.

In this regard Wilcox J said (p.170):

“But. in a case where it is obvious that material is

readily available which is centrally relevant to

the decision to be made,

it seems to me that to

proceed to a decision without making any attempt

obtain that information may properly be described

as an exercise of the decision-making power in a

manner so unreasonable that	no reasonable person
would have so exercised it.	It would follow that

the court, on

judicial review, should receive

evidence as to the existence

and nature of

that

information.

I’

With these principles in mind

I proceed to

consider

each of the matters relied upon by counsel €or the applicant.

I do not think that it could be said that the making of the

11.

deportation order at a time when the applicant was not fit to	I
travel was so unreasonable as to warrant the interference of the Court. Sub-section 20(2) of the Act indicates that the execution of a deportation order may not be an automatic.	I ,
affair. It ought to be assumed that the applicant would not be deported until he was well enough to travel.	I .

In any event

he is

now fit. If

this were the

only ground relied

discretionary considerations would militate against upon*/

the

granting of relief.

In support of the second matter there was evidence,

which I admitted over the objection of counsel for the'

Minister, from Mr T.B. Smith, Senior Lecturer in South Asian,

Politics at the Australian National University.

He has lived,,

studied and travelled in India for the last twenty years and has followed events in Indian politics closely during that

time.

He said the Punjab district of India is one of the major'

trouble spots of that country.

Recent reports indicate that

there are no signs of the situation improving. He said that the Funjab area is now under military rule and martial law has replaced basic civil liberties. In February 1986 it was reliably estimated that some 3,000 people were in detention and

there were numerous reports of arrests, torture, intimidation and press censorship. Mr Smith said that anyone thought to be involved with Sikh politics would be likely to be put under detention. He also said that the situation was compounded by

violence between Hindus and Sikhs

and between militant and

12.

moderate Sikhs.

Against that background he referred to the '

facts of this case.

He said that, if the applicant had been ~

labelled as a Sikh	extremist or as an associate of Sikh	j
I

extremists. he would be likely to be detained on his arrival

in I

India and be the subject at least of

interrogation and possibly

detention or torture. Mr	Smith was not cross-examined and I;	1
1 ;

accept the general purport of his evidence.	! I , I
I ,
I
!
Counsel €or the applicant also relied upon the evidence of a Mr White, a journalist in the employ of Macquarie Broadcasting Holdings Limited. He is the Deputy News Director

at Radio Station 2GB in Sydney.

He referred to news reports

of the circumstances in which the

applicant and his compatriots

were arrested. During one of these reports on 7 April 1986 it:

was said that a Long Bay Gaol official had reportedly said that

the applicant was suspected of being a Sikh terrorist. In another report it was said that the applicant was thought to be a Sikh extremist. Similar words were used in a later

broadcast on 7 April and in a broadcast on 8 April 1986. Statements to the same effect were made in some newspapers,

clippings from which appear in the

Departmental file.

In counsel's submission it was a wholly unreasonable

exercise of the power to decide to deport the applicant without taking into account the circumstance that he, having been labelled a Sikh terrorist or extremist in news broadcasts in Australia, would be in serious physical danger if he returned!

13.

to the Punjab.

In' counsel's submission the relevant officials

of the Department should be imputed with actual or constructive knowledge of the state of unrest which has existed in the

Punjab for some years. Not to have regard to this matter,

particularly in the light of the way the applicant had been

described in news broadcasts, was to act in a fashion so

unreasonable that the exercise of the power could not be

supported.

In my opinion this submission should be rejected. Regrettably there are great numbers of trouble spots in the world. It would impose on officers of the Department and the Minister an impossible burden if it were held that they were bound to investigate the potential danger to a vast number of prohibited non-citizens if they were returned to their home countries pursuant to deportation orders. Furthermore, the deportation of the applicant is not to the Punjab, but to India. There is no evidence of what his position may be if he goes to a place in India other than the Punjab. In the circumstances I do not consider that the applicant has demonstrated that the decision to deport him was at all unreasonable. After all, he came here quite deliberately flouting the immigration laws of this country, laws with which he had some familiarity because of his previous deportation.

To put the matter at its lowest from the Minister's point of

view, I ad satisfied that the Delegate's exercise of power to

I i	I	14.
1 '

make

the

order did not disclose the degree of

unreasonabl	before this Court will interfere.
relied upon concerns the shooting of

the applican'.'on

3 April 1986 by the police, the circumstances

vas later arrested on 4 April 1986 and the in which he

suggested nee!+

for an inquiry into the circumstances of the

shooting, toc'ether

the applicant's

right to bring an of the injuries suffered by him particular matters relied upon,

action for d

as they

and in amendments made

re to ensure that the circumstances in which tihe applicant was shot are determined by an acceptable forum and that the applicant be I

available to testify at such inquiry.

A failure to make enquiries as to the

possible

existefice

of liability in officers of the

! I

Deparqment of Immigration and Ethnic Affairs and

in th /New South Wales police force in respect of th injuries suffered by the applicant when 1:

he was1 shot by one or more officers near

Yenda,

N.S.W.!, on 3 April 1986.	I
!
i
1
i
!

15.

The loss by the applicant of any real prospect of success in efforts or proceedings to recover compensation, for the injuries he suffered when he was shot, if he is deported from Australia.

The Departmental file shows that the shooting incident was referred to in telexs sent to the Attorney-General and

the

Minister for Immigration by a Mr Urban. Mr Mahoney was asked to provide details of the incident by an officer of the Attorney-General's Department. This occurred on 15 April

1986. Mr Urban is the Chairman of an association known as the Pan Ethnic Republican Party of Australia, New South

Wales State

Assembly, Migration Committee.

U ban's

telexs were

received about 15 April 1986. By that

time Mr Mahoney had Mr

Johnson's Field Report to whlch I have made reference.

On 14

April 1986 he sent a memorandum to the Regional Director of the Department in the Australian Capital Territory. He referred to the fact that a copy of the Field Report had been provided

to the Secretary of	the Department who had annotated his copy
as follows:

"Somewhat less than illuminating. Were the police equipped with shotguns? Was the discharge a

shotgun?

Did the may lay out over night?"

Mr Mahoney asked that these questions be answered and also for further information generally about the incident. The reply from the Regional Director was dated 16 April 1986 and was as follows :

16.

"FIELD REPORT - GRIFFITH, NEW SOUTH hW;ES:

2-5 APRIL 1986

I refer to your memo

of 14 April and to the

Secretary's request for

further

information

concerning the Griffith

operation.

In answer to question one, the Pollce were equipped

with shot guns. We

have received no

official

report from the Police

as to whether or not

shotgun or a handgun

was

discharged.

The

Immigration officers in Griffith were told

that the

weapon fired was a shot gun. In answer to the

second part of the question, the Police searched

the vineyard

with the aid of spot lights and

found

no one. The first that either the Police or Immigration officers knew of Mr Chhindadhillon's plight was some time during the following day when

the hospital reported

that they had admitted an

Indian male suffering from

a broken ankle and

flesh

wounds.

The report was made to the Police by the

hospital

the

standard practice

these

cases.

The verbal report, again we have nothing

writing, was that he had been taken to the hospital

by a property owner and that he had spent the night

in the vineyard.

As soon as we receive any

formal advice from the

Police we will

bring it to your attention."

Subsequently solicitors acting for the applicant wrote

to the Department foreshadowing a claim for damages.

These

letters

did not reach

the

Department until

after

the

deportation order was signed on 17 April 1986.

Since then the

matter has developed in the way

that I have described.

satisfied that there was no unreasonable delay on the part

the applicant's solicitors.

The examination of Assistant

Commissioner Nixon pursuant to the provisions	of Part 3 of the
Rules of the Supreme Court of New South Wales	is still to take
place.

17.

In the entirety of the circumstances of this case I do not think it was wholly unreasonble for the Minister's Delegate to sign the deportation order on 17 April last. As I have said, the applicant was in flagrant breach of the migration laws of this country. He had been deported once before. He had returned in a most deliberate fashion, entering the country illegally and remaining unlawfully here since then. During

that time he worked,

something which he was prohibited by

law

from doing. At the time the decision to deport him was made, there was no claim foreshadowed by any solicitor. Mr Mahoney had the report which had been prepared shortly after the incident had concluded on 4 April 1986 and he had the further memorandum of 16 April 1986. Unquestionably the matter was serious, but enquiries were to be conducted within the New South Wales Police Department and no officer of the Department

had been involved in the shooting.

The two officers were

inside the building and did not witness it.

It remains to consider the second decision which is impugned, namely the decision to execute the deportation order. It was suggested during the course of the hearing that the Minister was indeed reconsidering the matter in the light of the applicant's desire to pursue action against members of the New South Wales police force. In those circumstances I suggested that perhaps the matter might be adjusted without the need for the Court to resolve it. But I was told that this could not be done because there was a question of who should

18.

pay the costs of this application.

The parties were unable to

agree on this matter and, as I understand what I was told,

for

that reason alone the matter was

not pursued.

I think this is

regrettable but the material before me

does not enable me to

say whether one party or the other is to blame for such	an
unfortunate situation.

What the applicant really seeks

to achieve is

remain long enough in Australia to prosecute his claim.

agree with submissions made

by his counsel that once he leaves

the jurisdiction, it will be, from a practical point of

view,

quite impossible for him to prosecute it.

Unlike the decision

to make the deportation

order whereby the applicant would be

deported, the decision to execute the order involves

continuing process.

The order may be executed at any time.

The fact that the reason why it has not been executed is because of a stay of proceedings granted by this Court in May last is not to the point.

Just as

it would be lawful for the Department,

although a deportation

order were in existence, to leave it

abeyance

until

deportee

was

fit to

travel, so, in my

opinion, would

it be

lawful to

delay its execution until a

deportee in the position

of the applicant here had had

opportunity of prosecuting his claim.

This course was adopted

by Lockhart J. in Laremont v Minister for Immiqration

and

Ethnic Affairs ( 6 December 1985, unreported).

In that case

19.

the applicant wished to maintain proceedings for workers

compensation against his employer. Lockhart

J did not set the

deportation order aside but referred the question of whether

the applicant should actually be deported to the Minister for

further consideration

and directed him not to execute the order

prior to that consideration being given.

Because the position is

a continuing or developing

one. I think it appropriate to look at the position as it is

now. In

my view it would be wholly unreasonable to decide to

execute the deportation order forthwith without giving the

applicant an opportunity at least

of seeing the outcome of the

examination of Assistant Commissioner Nixon which is to take

place later this month. Whether, in the light of what emerges

from that examination, it would be unreasonable to deport the

applicant until he had had an opportunity of prosecuting his

claim is,

I think,

a matter for the Minister to decide, no

doubt

with

the

aid

what

emerges

during

.Assistant

Commissioner Nixon's examination. Without binding him in any

way, I

would expect that the willingness of the applicant's

solicitors to act expeditiously in the prosecution of any claim

would be

a matter to which he would have regard. If the

Supreme

Court

willing

so,

the

hearing

any

proceedings should be expedited.

I would also express the

tentative view that the Minister would be well justified in

requiring the applicant to remain in custody during the period

of any deferral of the execution of the deportation order. The

20.

applicant's record makes it clear that he is not to be trusted to abide by any conditions set in relation to the grant of bail.

In the circumstances I propose to dismiss the applicant's claim €or judicial review in relation to the decision to sign the deportation order but to uphold it in relation to his claim that the decision to execute the deportation order should be reviewed. The order will be stayed until fourteen days after Assistant Commissioner Nixon's examination has been concluded. Whether any further stay of it is granted will be a matter €or the Minister to decide in the light of the then circumstances.

The parties have had mixed success in the proceedings

and I think there

should be no order as to costs.

The orders I make are:

1. The execution of the deportation order made on

17 April 1986

be stayed until fourteen days

after the examination of Assistant Commissioner (Crime) Nixon of the New South Wales police force pursuant to Part 3 of the Rules of the

Supreme Court of New South

Wales.

21.

2. Upon the conclusion of that examination, order

the Minister, by himself or his Dblegate, to

consider whether the execution; of the

deportation order should be deferred pending the outcome of any proceedings instituted by the l

applicant against any member of th& New South	, l
I !

Wales police force or against I a nominal

defendant appointed pursuant to khe Claims

against the Government and Crown Suits Act 1912

(N.S.W.).

3. The application be otherwise dismisaed.

I j

4. There be no order as to costs.

5. There be liberty to apply generally.

! :	i
1 ,
l

I Certify that this and t h e m

preceding"

pages are a true copy of the reasons for

judgment herein of The Honourable

Mr Justice Sheppard.

Assoclate

9 o c f o a s m 6

' I

[1986] FCA 442

10 Sep 1986