Tamanvalu, I.S (also known as Ille Tabua) v Costello, D. & Minister for Immigration, Local Government & Ethnic Affairs

[1989] FCA 568

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION 1 QLD G88 of 1989

QUEENSLAND DISTRICT REGISTRY

BETWEEN:  ILIVASI SEVIA TAMANIVALU (also known as
ILLE TABUA)

i'dant	- .
..

-

AND: DARIO COSTELLO ,-

First Respondent

AND:  MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND

, ETHNIC AFFAIRS

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.	-
DATE OF ORDER:	31 AUGUST

WHERE MADE:  BRISBANE , L \ D, ' s i n - . c,. .-;

.\ ;./

, '- -,- -- S ' /

THE COURT ORDERS THAT:

1. _--- ./'

l. the requirement to leave Australia signed under the hand of Linda May Urquhart dated 24 August 1989 be stayed until the trial of these proceedings or further earlier order;

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2.    the deportation order in respect of the applicant be stayed until the trial of these proceedings or further earlier order;

3. the applicant's affidavits be filed and served within three weeks of the applicant or his solicitors receiving the statement of reasons under s.13 of the Administrative Decisions (Judicial Review) Act 1977;

4.    the respondent's affidavits, if any, be filed and served within two weeks of service of the applicant's affidavits;

5.   when the parties are ready, they approach the Registrar, who shall fix a date of trial on his being satisfied that the matter is ready for trial;

6.   the costs of today's hearing be costs in the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) QLD G88 of 1989
GENERAL DIVISION	1

BETWEEN:  ILIVASI SEVIA TAMANIVALU (also known as
ILLE TABUA)

Applicant

AND: DARIO COSTELLO -. - -

First Respondent

AND: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT'AND

ETHNIC AFFAIRS

Second Respondent

PINCUS J . 31 AUGUST 1989

REASONS FOR JUDGMENT

This is an application for interim relief in a migration case. The applicant is a young man who entered Australia at the age of 17 on Christmas Eve 1982. He is said to be of good character and a solid worker and a sportsman. However, the

matters before me do not concern whether he should be allowed to	remain in Australia, but merely the rather narrower point whether
the respondents' foreshadowed reasons for refusal to let him stay ~ are prima facie lawful.
I use the expression "foreshadowed reasons", because I have before me the submission on which the first respondent, Mr Costello, refused the applicant's application for permanent

i

resident status; I understand that the s.13 reasons, which are in
the course of preparation, will be based on that submission.

The principal points taken by MS Holmes, on behalf of the applicant, relate to events in 1983, to events in 1986, to the question of concealment and to the question of a de facto relationship.

As to 1983, the situation is not very clear. The submission proceeds on the basis that the applicant was told to leave Australia in 1983. The language used is that he was "formally" refused the grant of resident status in 1983 and "directed in writing" to depart. The material shows that submissions were made on his behalf by a member of parliament, Mr Tom Uren, and the correspondence which I have shows that it was Mr Uren who was told of the requirement to depart. The submission by Mr Sorensen, on behalf of the respondents, is that one should reasonably infer that Mr Uren accurately passed that information on. It is more guesswork than inference, because the applicant was only 17 then, and there is a suggestion in the material that

does not really know whether the facts are as Mr Sorensen invites	his older brother was looking after any immigration problems. One
me to assume them to 'be. It seems to be arguable that the Court will ultimately find 'that that was a little overstated; that is, the impression that the innocent reader gets is that the applicant personally got a formal direction to'depart and the facts are not quite as simple as that. The present application is not such as to require me to reach a final conclusion on that point, that is, whether or not tqere was an error in that respect.
The events of 1986 are somewhat clearer, in that there is unequivocal evidence from a Mr Sloggett which indicates that in 1986 he was asked about the applicant, and told the department that the applicant was available for interview and the department did nothing about it. Mr Sorensen says that his material shows, and it is correct that it does show, that no record of that contact with Mr Sloggett has been located in the department. It is, again, not necessary for me to rdach a conclusion as to what happened, but what Mr Sloggett says does not, on the face of it, seem likely to be fabricated and it is odd that there is no record of it, if events happened as he says. The Sloggett contact is perhaps a little more significant than the earlier point, which I mentioned, because the flavour of the submission (exhibit N to the applicant's affidavit) and the letter (exhibit M) is that here one has a skulking immigrant keeping away from the authorities.
The third point, the question fo concealment, is shortly stated. The submission says that Mr Taminivalu might have used a shorter name, at least in part, for the purpose of concealment, and MS Holmes says, in effect, there is nothing to base that on. The applicant says he did not, and there is no present reason to
disbelieve him. It is, as it seems to me, a relatively minor
point, but the three points have a cumulative effect. It appears that one of the main areas in which the submission and consequent decision are to be attacked is the notion there contained that the applicant has been a particularly elusive and covert person.
The last of the four points I propose to deal with, made by Ns Holmes, isi that the submission does not adequately explain
the position as between the applicant'and his girlfriend. . I - have .
considered what MS Holmes says about that, but I do not think there is a great deal in it.

.-.

The main contentions made by Mr Sorensen, on behalf of the respondents, are two. The first is that the law is such that it is extremely difficult for such a person as the applicant to qualify for consideration under s.6A of the Migration Act 1958 and that the facts simply disclose a person who came in on a temporary entry permit and overstayed, and that such people can scarcely succeed under s.6A. The answer is that some people in those circumstances, do ultimately succeed in being allowed to stay in this country lawfully; it is not impossible, however difficult it may be.

The second point which Mr Sorensen makes, which seems to me to have some substance, is that as one or two cases in this area have stated, and other cases in other administrative law areas have also stated, the law does not require, for a decision to be valid, that the information on which it is based be

unimpeachably accurate in all respects. The law has not required	perfection on the part of administrators, who may have to deal
with a great number of decisions in the course of a working year. I£ it did, then statutes of this sort may become very difficult to administer.
The second point taken by Mr Sorensen is the one which has concerned me most. It seems to be the case, as he implies, that there is no, egregious error even alleged to be contained in the submission or in the decision based on it. In answer to that, MS Holmes points out that all I have to determine today is whether or not there is a serious question, and I have come to the conclusion that it is impossible to hold otherwise. That is, there are arguable points which one could not describe as other than serious, about the validity of what was done.
One comes to the balance of convenience. The circumstances are such that once one gets to that point, the applicant must, it seems to me, succeed. He has a relationship with MS McRitchie. He is a person who would suffer seriously, as apparently she would, if he -were deported, and in those circumstances I think there has to be a stay.
The decisions to be stayed, according to MS Holmes, include the refusal to grant permanent residency. I do not see that that is a decision which should be stayed. It seems to me that the refusal simply stands for the present and one cannot sensibly grant interlocutory relief in respect of it. To stay a refusal does not turn it temporarily into a grant of permanent
status undealt with. residency status; that would simply leave the application for that
The orders will therefore be, firstly, that the requirement to leave Australia signed under the hand of Linda May Urquhart dated 24 August 1989 be stayed until the trial of these proceedings or further earlier order; secondly, that the deportation order in respect of the applicant, be stayed until the trial or furtherjearlier order.
I order that the applicant's affidavits be filed and served within three weeks of the applicant or his solicitors receiving the statement of reasons under s.13 of the Administrative Decisions (Judicial Review) Act 1977; and I order that the respondentsr affidavits, if any, be filed and served within two weeks of service of the applicant's affidavits.
I order that, when the parties are ready, they approach the Registrar, and he shall fix a date of trial on his being satisfied that the matter is ready for trial. Costs of today's hearing will be costs in the proceedings.

. 'c" i l iy !/>a! this and the

PrGCgding

PT""' -a ar2 a tru= - COPY of t ! l p reasons for

atld:7fi1ent hciein OF His Hone*

Mr. Justice Pincus