Sundar, R.l. v Minister for Immigration & Ethnic Affairs

LIMITED DISTRIBUTION ONLY

CATCHWORDS

ADMINISTRATIVE LAW - Deportation order application for stay

Whether serious question to be tried in relation to validity

of deportation order

- Relevance of pending Federal Court and

Fadly Court proceedings

- Whether delegate adequately took

into account position of Australian citizen for whom applicant

caring - Effect of applicant illegally obtaining employment

upon entitlement to relief	- Whether decision to deport
unreasonable.

Administrative Decisions (Judicial Review) Act	1977 5.15
Miqration Act 1958 5.18
NSW G.65 of 1986

ROSHNI LATA

SUNDAR v CHRIS HURFORD Minister for Immigration

and Ethnic Affairs

Wilcox J.

Sydney

20 March 1986

I	-
i

LIMITED DISTRIBUTION

ONLY

i	I
I
i

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G.65 of 1986

)

GENERAL DIVISION

)

BETWEN:

ROSHNI LATA SUNDAR

Applicant

CHRIS HURFORD

Minister for Immigration

and Ethnic Affairs

Respondent

CORAM :

WILCOX J.

W:	20 MARCH 1986
PLACE :	SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

! !

Pursuant to 3.15

of the Administrative Decisions

(Judicial Review) Act, the deportation

rder made

I	against Roshni Lata Sundar, the applicant, on 13
I I
I
I
i	I
I

L .

March 1986 by Wayne Julian Gibbons, as delegate of

the respondent Minister, be stayed pending the

further order

of the Court.

2. The costs of this application be the applicant's

' costs in proceedings number G.65

'of 1986.

3. Proceedings G.19 of 1986 and G.65 of 1986 be heard together,

NOTE :

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

LIMITED DISTRIBUTION

ONLY

IN THE F'EDERAL COURT OF AUSTRALIA

- 1

NEW SOUTH WALES DISTRICT REGISTRY	1	No. G.65 of 1986
GENERAt DIVISION	1

ROSHNI LATA SUNDAR

Applicant

CHRIS HURFORD

Minister for Immigration

and Ethnic Affairs

Respondent

. CORAM:

WILCOX

DATE:

20 MARCH 1986

PLACE

: SYDNEX

-ORE

REASONS FOR

JUDGMENT

This is an application made.to the Court

by Roshni

Lata Sundar for an order under s.15

of the Administrative

Decisions (Judicial Review) Act

1977 staying the

implementation of a deportation order made against her

Nayne Julian Gibbons, the delegate of the respondent Minister,

on 13 March 1986-

It appears that Miss Sundar is

a citizen of

Fiji.

She arrived in Australia on

27 June 1981, holding

a visitor

visa valid for one month. The visa was endorsed with the

words "Employment Prohibited". She was granted

a number of

further temporary permits, the last of which expired on

October 1983. Each of those permits was also endorsed with	a
condition "Employment Prohibited".

On 27 July 1982 Miss Sundar married an Austra

M a n

citizen, John William McIntyre, but that marriage broke down

and the parties were divorced on

15 October 1984. It appears

that after Miss Sundar separated from Mr McIntyre she obtained

employment as

a housekeeper with

Mr-J H Roach, an elderly

gentleman who is in poor health

nd who lives in Darling

Point. Since that time she

has cared for Mr Roach,

and still

does. In obtaining employment with Mr Roach she was acting in breach of the condition forbidding employment, which was endorsed upon her various temporary entry permits, and she

committed an offence under s.31B of the Misration Act

1958.

Following her separation from Mr McIntyre the

applicant commenced proceedings in the Family Court

Australia in whichshe sought a property settlement. This property settlement extends to an order in relation to he former matrimonial home but also inclhdes certain furniture

and certain jewellery alleged to have been retained by Mr

McIntyre, although owned by the applicant. The proceedings in

the Family Court have not yet been resolved.

I was informed

that there is to be

a formal conciliation conference between

the parties in June and that if this conference is

unsuccessful the matter will then proceed to

a hearing. At

this stage it is uncertain how long it will be before the

Family Court proceedings have been completed.

On 20 June 1983 Miss Sundar made an application for

resident status and on

that day she was interviewed by

officer of the Department of Immigration and Ethnic Affairs.

During the course of that interview she gave

a considerable

amount of information relating to her marriage, including

certain allegations as to the conduct

of Mr McIntyre towards

I her.

I need not go into the details of the allegations but

think that it is a fair comment upon them that, if the

allegations have substance, there

is reason to conclude that

she was seriously exploited by Mr McIntyre during her marriage

and that the facts are such as to provide

a favourable basis

for her application for

a property settlement.

I should add that the interviewing officer accepted

that Miss Sundar had

in fact been ill-treated for some months.

He commented that this was evidenced at the interview, that

she was a "nervous wreck", continually twitching and crying during the interview. He commented, "It appears obvious that

her spouse exploited Miss Sundar to finance his	drinking and
possibly gambling traits."

At that time Miss Sundar revealed that she was

employed by mr Roach

as a live-in housekeeper and that

she had

commenced that employment in April

1983. Various other

comments were made by the officer, who was clearly sympathetic

to the situation in which Miss Sundar had been placed. In his

summary at the conclusion

of his report he said this: "Miss

Sundar may have

a case for consideration under 6A(l)(e).

Her

parents recently migrated to Canada with just one brother

still residing in Fiji."

Despite that report Miss Sundar's application for

change of status was rejected

by a letter dated

30 June 1983.

The letter informed.her that she may be -in

a category of

persons eligible to seek

a review of her application from the

Immigration Review Panel, and gave her advice as to the way	in
which this could be gone about.

Miss Sundar did not in fact seek

a review. Neither

did she leave Australia. However, from time to time her then

solicitors were in contact with the Department

of Immigration

and Ethnic Affairs, largely

in relation to the proceedings in

the Family Court. There were various interviews

at which Miss

Sundar gave information in answer to requests. There

is no

suggestion that at any time she has attempted to Conceal her

true identity or her whereabouts or failed	to keep in contact
with the Department.

Miss Sundar apparently made several requests.

although possibly informally, to be allowed to remain in

Australia pending the finalisation of her proceedings against

her husband. These -requests seem to have been rejected on

each occasion. As 1985 wore on the Department became more

insistent about a departure date being set. Miss Sundar

changed her solicitors late in 1985 and her new solicitors

wrote a letter on 11 October 1985 in which they summarised the

grounds upon which they submitted that Miss Sundar should, on

;

humanitarian and compassionate grounds, be permitted to stay

in Australia and be granted residency. This seems to be

clear reference to s.tiA(l)(e)

of the Micfration Act.

Shortly after that letter there was forwarded to the Department a letter signed by

Mrs Georgie Swift who claimed to

be the daughter of Miss Sundar's employer,

Mr Roach. Mrs

Swift said that her father was aged 80 years, that he was

stroke victim and had been in hospital for two years. He had

been advised by the hospital administrator at Royal South

Sydney Hospital that it was necessary for

him to have

housekeeper. Mrs Swift said that "we" advertised several

times in the local papers and in the "Sydney Morning Herald"

for a housekeeper but found it difficult to find someone

prepared to take on the responsibilities involved

in caring

for her father. Miss Sundar applied and, according to Mrs

Swift, since that time "She has not only been

a housekeeper,

but does all his cooking, shopping and banking. She also

takes care of his personal hygiene and outward appearance,

thus helping

him to still feel dignified despite his

inabilities." Mrs Swift went on to refer to Mr Roach's

medical condition and to claim that

he has dizzy spells when

he is unable to stand or sit up. She said that the dizzy

spells come on regularly and quite unexpectedly and that he

has fallen over on

a umber of occasions and has needed to be

assisted. On those occasions he has to stay in bed. Mrs

Swift gave thekelephone number of two doctors in practice at Double Bay in order that the reader

of the letter might

confirm her claims. Mrs Swift went on to say that, as her

mother had died seven years ago, she was the only member of

the family responsible for

her father but that, as she was

working woman with

a family, she would find it impossible to

cope with

him. The ietter goes on

to praise the quaiity of

the service provided to Mr Roach by Miss Sundar and to

emphasise the great hardship to her father

if he has to be

instifutionalised because Miss Sundar is no longer able to

look after him.

Notwithstanding'the letter of

11 October and the

letter from Mrs Swift. the Department took the view that Miss

Sundar should be required to leave Australia.

An application

for a temporary permit was lodged on

3 Deceher 1985 but this

was refused by letter dated

3 January 1986.

On 20 January 1986

Miss Sundar's solicitors wrote to

the Department requesting

a statement pursuant to 5.13 of the

Administrative Decisions (Judicial Review) Act in relation to

the decision to refuse

a temporary entry permit. This letter

was acknowledged on

22 January 1985 with

a promise that

reply would be made within the time frame set down in the

legislation. In fact the reply was late, it not being

provided until 13 March 1986; but I do not think that

anything turns on that fact.

On 23 January

1986, an Application was filed in this

Court, being number G.19 or 1986>seeking review under the

-Administrative Decisions (Judicial Review) Act

of the decision

to refuse a temporary entry permit. That Application has not yet been heard. although it does appear

that it could be heard

at a relatively early date. The Application came into the

directions list before Burchett

J on.14 February

1986 and it

was adjourned to the directions list on

14 March 1986. On the

preceding day, 13 March

1986, the s.13 statement in relation

to the decision to refuse the application for

a temporary

entry permit was provided to the applicant and, also on that

same day, the deportation order was made. On 17 March 1986

Application number G.65 of

1986 was filed, seeking review of

the decision to order deportation.

For the purposes of the present application,

I do not

have to reach any firm conclusion as to whether there is

any

legal invalidity in either of the decisions which are under

challenge in this'court.

It is necessary only to determine

whether there is

a serious question to be tried in relation to

the validity of the deportation order.

A number of matters

have been argued on behalf of the applicant in support of the

proposition that there is at least one serious question.

I 1 I think that, of the various matters which have been

raised, there are three which warrant some consideration. The

first of these matters is that the document which went to Mr

Gibbons at the time of his decision

to make the deportation

order, and which was

Departmental case summary prepared

by-

an officer

of the Department, Miss Nicholl, contained no

express reference to the fact that proceedings number G.19 of

1986 would be affected if Miss Sundar

was deported. It would

not be correct to say that there was no reference whatever to

those proceedings in the case summary. As part of the history

of the matter

it was noted that, on

23 January 1986, an

Application for

an order of review had been filed in this

Court, see para.19, and in para.23 recerence was made to the

directions hearing in respect of that matter on

14 February

1986.

However, it is correct to

say that, in the material

supplied to Mr Gibbons in support of what Miss Nicholl called

"the above findings", there was no reference

to the pending

Federal Court proceedings, and that this matter received no

consideration in the section of the summary headed

"assessment", wherein Miss Nicholl set out the matters that

she thought needed to be considered by

Mr Gibbons in making

the decision whether or not to order deportation. It may well

be that Mr Gibbons was aware of the situation in regard

to the

pending proceedings; but there is no evidence of'that fact.

It is doubtful whether the omission of reference to

the pending Federal Court proceedings in the section of the

document called "assessment"

is sufficient in itself to

provide an arguable case that the decision to deport was

invalid: However, it is a matter which must

be taken into

account in considering the other two questions which have been

advanced for consideration and which are matters of more	-
serious concern.

The second matter relates to the Family Court

proceedings. There is no doubt that Mr Gibbons was made aware of the fact that Family Court proceedings were pending. This matter was specifically referred to in the section of the document headed "assessment",and in particular in para.13

where Miss Nicholl summarised three circumstances which she

recommended should receive consideration. Unfortunately,

however, the nature of the Family Court proceedings was not

spelt out. In para.9 of the document Miss Nicholl included in

a summary the fact that the applicant "had

a civil claim

against her husband for

loss of jewellery and furniture".

10.

This statement was not incorrect, but it was very much less

than the full story. The statement did not suggest what was,

to the knowledge of the Department, the fact, namely that Miss

Sundar's claim included

a claim in respect

of the former

matrimonial home. In two separate letters from her

solicitors, reference had been made

to the "matrimonial

property". Nor was there anything said about the prospects of

success in those proceedings or the fact that there was

material in the possession of the Department	which suggested
that the claim had some validity.

It is true that amongst the documents which went

Mr Gibbons, and included in

a substantial bundle of

attachments, was the report of the officer who conducted the

interview on

20 June 1983 to which

I have made reference. It

is possible that

Mr Gibbons read each of those attachments and

thus became aware of the officer's view but there

is nothing

before me to enable me to reach

a conclusion that he read

those documents. There is no affidavit filed by

Mr Gibbons.

The s.13 statement which was subsequently provided,

and which

is in evidence as exhibit

B, contains the Departmental case

summary. It consists of a formal certificate signed by

Gibbons, in which e said that he based his decision upon the submission of Miss Nicholl and the annexures thereto, that he

adopted the findings at part

A of that submission

as his

findings on material questions of fact, that

he ccepted these

findings of fact on evidence before him as set out in part

11.

of that submission

and that he adopted the reasoning set out

in the assessment of part

C of that submission and that this

sets out the reasons for his decision. However

Mr Gibbons

does not in terms say that

he read each of the annexures.

While it may well be that

he did I cannot be satisfied that

this is	so.
--

The third matter

I regard as the most significant

all and that relates to the position

of Mr Roach. There is no

direct evidence as to

Mr Roach's position. He is apparently

an Australian citizen, or at least

a person who is entitled to

reside here indefinitely. The only information before the

Court as to his medical condition is that contained in the

letter from Mrs Swift, supplemented by some references

other documents, including the interview material.

I was

informed by the solicitor

for the respondent that the

Department accepts the factual correctness of the claims made

by Mrs Swift. So far as the file indicates, the Department

has never challenged the accuracy of what Mrs Swift has said

and it seems not to have made enquiries from	any person as to
Mr Roach's condition.

Mrs Swift's letter was one of the annexures to the case summary prepared by Miss Nicholl

w ich went up

to Mr

Gibbons for his consideration. But, once again,

I have no

.idea whether he read the letter or not.

12.

It is true that Mr Roach's position was expressly

referred to by Miss Nicholl in the case summary. This occurs

both in her references

to the substance of the

representations, which had been received by the Department

from Miss Sundar's solicitor, and, once again, as

a relevant

matter for consideration in para.31.

However, the case summary does not really spell out the significance of the matter from

M Roach's point of view.

I interpret Mrs Swift's letter as making the claim that it has

been extremely difficult for the family to find

a person to

care for her father; that personal care from

a live-in

housekeeper is essential if he is

t o avoid going back into

hospital or some other institution indefinitely, and that to

return to hospital or some other institution would have very

serious consequences for him.

It is not difficult to understand that these claims may be justified. The Department was not, of course, bound to

aqcept Mrs Swift's assertions; but it appears that the

officers handling the matter have done

so.

I think that it is

at least arguable that the significance of these matters was

not properly put before the decision-maker, Mr Gibbons. Once again, it is pos'sible that he did, in fact, read Mrs Swift's Letter, appreciate the significance of the points that she

made, and, nonetheless, regard those matters as being

outweighed by other considerations pointing in favour of

13.

deportation. But on the material presently before me,

cannot feel satisfied about that matter, and

I think that

there is a serious question to be tried as to whether the position of Mr Roach was taken into proper account.

In saying this,

I do not overlook the matter that has

been put by the solicitor for the respondent; namely.

that by

engaging in employment in the first place Miss Sundar was

acting in breach of the condition of her temporary entry

permits, and was committing an offence under the Misration

m. It is submitted that any deficiency in the

administrative decision which arises out of an initial illegal

act by an applicant, cannot.be availed of in proceedings

commenced by that person- The analogy is the equitable

principle summarised in the maxim that	a plaintiff must come
to equity with clean hands.

I am not sure that this analogy is of much assistance

in the realm of administrative

law, where the emphasis is not

upon personam rights but rather upon the validity of

decisions made in the public interest.

I reach no conclusion

about the matter but

I think that it is reasonably arguable

that the fact that the employment

was illegally commenced does

not, in itself, deprive Miss Sundar of an entitlement to argue

that, nonetheless, the delegate

of the respondent was obliged

to have regard to

Mr Roach’s position in making his decision.

14.

I add that, if the evidence had indicated

o me that

Mr Gibbons had, in fact, read

Mrs Swift’s letter, and was

therefore apprised

of the position of her father, but,

nonetheless and accepting its accuracy, had made

a deportation

order, a question might arise as to whether his decision to

deport was unreasonable in the relevant sense; that is to

say, a decision which could not be arrived at by

a person

acting rationally in the exercise of his discretionary power. I make no finding upon that matter, but simply remark that a question may arise on that score.

Having regard to the three matters

I have mentioned,

and particularly the third matter,

I am of the conclusion that

the applicant has made out

a case for

a-stay of the

deportation order. It seems to me that there are several

arguable points, and that the appropriate course

i s to

exercise the discretion

of the Court

to stay a deportation

until the matter can be determined. There is no element of convenience against granting relief. There is no suggestion that Miss Sundar is in any way an undesirable person, or that

her continued presence in Australia poses any problem. From her own point of view, the consequences of deportation would be extremely significant, even if she were subsequently

successful in having the decisions made held to be invalid.

15.

I propose, therefore, to order, pursuant to s.15	of	I /
i

the Administrative Decisions (Judicial Review) Act that the

1 -

deportation order made on 13 March 1986 by Wayne Julian

Gibbons, as delegate of the respondent Minister,

be stayed

pending the further order of the Court. The costs of this

application will be the applicant's costs in proceedings

I	number G.65 of 1986.

It is,

I think, appropriate to make some directions

I '

to consolidate G.19 of

1986-

and G.65 of 1986, and to ensure ;

that they are heard at the earliest possible date and	I invite
suggestions about directions.

I certify that this and the fourteen

(14)

preceding pages are

a true copy of

the Reasons for Judgment herein

his Honour Mr Justice Wilcox.

Associate:

A 1

Date:

16 April 1986

Counsel for the applicant:

Mr J S Hilton

Solicitors for the applicant: Messrs Ebsworth

& Ebsworth

Appearance for the respondent:

Mr R Plibersek, Solicitor

Solicitors for the respondent: Australian Government

Solicitor

Date of hearing:

20 March

1986

[1986] FCA 127

20 Mar 1986