Stephenson, A.P. v Minister for Immigration, Local Government & Ethnic Affairs

[1989] FCA 181

Re: ALAN PAUL STEPHENSON and PAULINE ANN CHISHOLM
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. NSW G205 of 1989
FED No. 181
Migration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Migration - application under Judicial Review legislation - interlocutory stay of deportation order in urgent case where reasons for decision were unavailable - serious question to be tried not in such a case necessarily required to be shown - but a serious question was shown by evidence that the existence of an earlier application for an entry permit was ignored by the Department simply on the basis it had no record of it - effect of marriage to an Australian citizen after deportation order - power of court to order release from custody pending hearing and circumstances where such an order was appropriate.

Migration Act 1958, s.6A

Administrative Decisions (Judicial Review) Act 1977, s.15

HEARING

SYDNEY

#DATE 28:4:1989

Counsel for the Applicants: Mr A. Robertson

Solicitors for the Applicants: Craddock, Murray & Neumann

Appearing for the Respondent: Mr A. Markus

Solicitor for the Respondent: Australian Government Solicitor

ORDER

Until further order, the decision to deport the first applicant be suspended and all proceedings under that decision be stayed.

The first applicant be released forthwith from custody and remain at liberty until further order of the court on condition that he report each Monday, Tuesday, Wednesday, Thursday and Friday, excepting only holidays, between 9-00am and 12 noon at 5th Floor, Zenith Centre, Pacific Highway, Chatswood.

The first applicant undertakes not to engage in paid employment until further order.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application for an interlocutory stay of a deportation order, and for an interlocutory order for the release of the first applicant, pending the hearing of proceedings under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act). The first applicant, who had arrived in Australia from Great Britain (he is a British citizen) on 2 November 1983, when he was granted a temporary entry permit for a period of six months, was arrested on 7 April 1989 as a prohibited non-citizen. The second applicant is his wife, whom he married after his arrest but pursuant to arrangements made with a marriage celebrant on 31 March 1989. They had been living together since 1987. She is an Australian citizen.

1. A deportation order was made against the first applicant on 20 April 1989. The applicants' solicitor learned of it by telephoning an officer of the department. The solicitor asked for the reasons for the rejection of his application for residence and for the decision to deport, but was told: "You will have to lodge an application under section 13." He then asked for an undertaking that the deportation would be delayed, but the only undertaking given was not to deport the first applicant without telling his solicitor. Reasons have been requested under s.13 of the Judicial Review Act, and access to the immigration file has been sought under the Freedom of Information Act 1982. Neither application has been answered as yet. At the hearing on 27 April of the application for interlocutory relief, the evidence indicated that the first applicant was to be deported the next day.

2. For the Minister, it was submitted that, no reasons being available, it was not possible to identify any error within the purview of the Judicial Review Act, so that the court could not find a serious question to be tried. Especially where the applicants' solicitor has not acted precipitately, but made a request for reasons and delayed his application until advised that his client would be deported the next day, this submission is high-handed and unmeritorious. If it were correct, it would go far to negate the evident intention of Parliament when the Judicial Review Act was enacted in respect of administrative decisions of this kind, and to make a mockery of the rule of law. I agree respectfully with the views expressed by Morling J. in Kumar v. Minister for Immigration, Local Government and Ethnic Affairs (unreported, 16 March 1989). Morling J. held that, in a case in which the legal advisers for an applicant have not had a real opportunity to consider the circumstances, a short stay may be granted to enable them to do so, even though a serious question has not been demonstrated within the principles explained in Australian Coarse Grain Pool Pty Ltd v. Barley Marketing Board of Queensland (1982) 46 ALR 398. Morling J. granted a stay for a period of seven days to enable the facts to be ascertained and the case prepared. See also Tuncak v. Minister of State for Immigration and Ethnic Affairs (unreported, French J., 29 July 1987); Allen Allen & Hemsley v. Deputy Federal Commissioner of Taxation (1988) 88 ATC 4424 at 4426; Sharp v. Deputy Commissioner of Taxation (1988) 18 FCR 475 at 484; Aboriginal Development Commission v. Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159 at 163-164.

3. There are, however, other considerations in the present case. According to the evidence in support of the application, which has not been effectively challenged, the first applicant, in about April 1984, applied for a further temporary entry permit, paying a fee of about $30-00 for which he was given a receipt. He was told by an officer of the Department of Immigration in Sydney, in answer to his question what would happen if his visa ran out before he heard from the department, "Don't worry, until we notify you you're legal to stay." (Cf. Akers v. The Minister of State for Immigration, Local Government and Ethnic Affairs (unreported, Lee J., 22 December 1988) at 3, where an almost identical statement was made by the department in writing.) Thereafter, in about September 1984, he went back to the department to apply for permanent residence, paying a further fee of about $90-00 or $100-00. Not having heard anything by the middle of 1985 in respect of either application, he telephoned the department and was told to come in. At Chifley Square, he saw an officer to whom he handed the receipts he had received and was told to wait. He was still waiting in the waiting area when the office closed, and he was told that he would have to come back the next day. Being upset, he contacted the British Consulate and arranged for an officer of the consulate to deal with the department on his behalf. The result was he was told that the relevant file had been shredded, which left him in the position of an illegal immigrant. Mr Stephenson was very perturbed, and took no further action, waiting for the department to sort out the problem. I infer he simply did not know what to do. Of course, I do so only provisionally, as is usual in an interlocutory hearing.

4. The applicants' evidence also includes evidence of a telephone conversation on 21 April 1989 by a solicitor acting for them with an officer of the department, when the solicitor referred to Mr Stephenson's claim that he had made "an earlier application for grant of resident status". The officer replied: "We have no record of an earlier application having been lodged. We are dealing with it on this basis."

5. It seems to me this evidence raises a serious question whether the refusal to grant a further temporary entry permit and resident status, and the decision to make a deportation order, were not each made in conscious disregard of the earlier application, simply on the basis that the department had no record of it. In answer to this consideration, reference was made on behalf of the Minister to Minister for Immigration and Ethnic Affairs v. Maitan (1988) 78 ALR 419. But that was a case presenting no special considerations whatever. As Fox J. said at 424:
   

"(R)elevant and irrelevant circumstances for the purposes of s 5 need to be something more than incidental factual matters no matter how important they can be made to seem. Relevant facts to be taken into account must be those required by the relevant Act (expressly or impliedly) to be considered. This can be put another way by saying that they must be required by the purpose and scope of the legislation in question. One is looking to legality. A converse position applies in relation to considerations taken into account, but submitted to be irrelevant."

In Maitan's case there were no such factors. At 428 Beaumont and Gummow JJ. in their joint judgment said:

"In other words, the discretion (ie the discretion to grant or refuse a temporary entry permit) is to be exercised in the light of what, in the judgment of the Minister, is in the best interests of Australia. In deciding what is in the public interest, the Minister will need to balance the competing claims of possible advantage on the one hand and of possible detriment on the other so far as the national interest is concerned ... ."

This was not to exclude, in a particular case, the need to consider a particular matter; but in that case there were no such matters, required to be considered, which could be shown to have been omitted from consideration. At 429, the joint judgment makes it clear that, in another case, even the matter there regarded as insufficient to attract any remedy, particular skills possessed by the applicant, might require to be considered, so that a decision made without reference to such skills might "amount to a failure to address the real question required by the legislation to be addressed ... ."

1. In the present case, I should think it plain that a serious question is raised whether the making of a much earlier application is not a matter which was required to be taken into account in the making of the decisions in question. It would make the difference between a person who had at all times ignored his obligations, after the expiry of the temporary entry permit, and a person who had made a real attempt to comply with the law and had been frustrated, at least in a fairly significant measure, by shortcomings on the part of the department itself. The weight to be given to such a consideration, if demonstrated, and whether in fact it has been demonstrated, are both matters for the decision-maker to determine upon all the material available; but a serious question is raised by evidence, upon which it could be found that he has put the matter out of his mind altogether just because of the absence of a departmental record of it.

2. There is another basis on which Maitan's case is distinguishable. There is a serious question whether there are in existence earlier applications on which Mr Stephenson was and is still entitled to have decisions. A decision in his favour upon either of those applications might have rendered the later application for a temporary entry permit unnecessary, and have removed the ground for the deportation order.

3. A special aspect of the case is Mr Stephenson's marriage to an Australian citizen. Assuming the marriage is valid, this changes the ground of his eligibility for an entry permit (see s.6A(1)(b) and see Chumbairux v. Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480). Of course, there has not been much time for the impact of the marriage between the applicants to have been considered as yet; but it would ill accord with the policy demonstrated by Parliament's enactment of s.6A(1)(b) for the deportation to be carried out with such haste as to impede the making of a further application under that provision.

4. The balance of convenience clearly favours the applicants, who would be gravely prejudiced if the deportation order were carried out before the matter could be heard, and indeed before the grounds of the decisions are even stated to them.

5. The last matter to be considered is the applicants' application for an interlocutory order, pending the hearing of the principal application, for the release of Mr Stephenson from custody, subject to such undertakings as the court sees fit to require. In Watsana Singthong v. Minister for Immigration and Ethnic Affairs (1988) 18 FCR 486, I considered such an application in relation to a person held in custody purportedly pursuant to s.36A of the Migration Act 1958. I applied the dictum of Lockhart J. in Unlugenc v. Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569 at 571, where he asserted the existence of power to make an order of this kind. In the present case, the evidence indicates that the applicants have formed a settled home, that Mr Stephenson is not a person who has simply defied the law with respect to immigration, and that there are no circumstances suggesting he would abscond if released. He has offered to submit to the condition that he report each Monday, Tuesday, Wednesday, Thursday and Friday, other than public holidays, between the hours of 9-00am and 12 noon to the Immigration office at Chatswood nominated by the department. No more stringent conditions have been suggested on behalf of the Minister. In the circumstances, it seems to me that Mr Stephenson should be released, and should remain at liberty until further order, upon that condition.

6. It was for these reasons, which I now publish, that yesterday I made orders staying the execution of the deportation order and for the release of Mr Stephenson on the condition I have stated.