Thompson, D.S, & M. v Minister for Immigration & Ethnic Affairs

[1986] FCA 322

RESTRICTED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY	) No. G297 of 1986
GENERAL DIVISION

BETWEEN :

Donald Stanley Thompson	and
Merle Thompson

Appllcants

AND :

The Minister for Immlgration and Ethnic Affairs

Respondent

CORAM :	BURCHETT J
-	DATE :	23 JULY 1986

WHERE MADE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

In this matter, an application has been made for a stay

of the declsion of the Administrative Appeals Tribunal, and of the decision of a delegate which was the subject of the former decision, that the applicants be deported from Australla, pendlng the hearlng of an appeal to the Full Court of this court.

The appllcatlon comes before me pursuant to Order 53

Rule 9. The application is opposed on the ground, as Mr Hyndman

put it, that it appears there has been no error, and he further

2.

put that there cannot be seen any obvious errors of law which would warrant the appeal. Nothlng has been urged, if I should not accept those submisslons, on the balance of convenience. On the other side, it was put that the female applicant has been at large since July of 1984 and the male applicant since July of 1985, and it has not apparently been thought necessary to take

either of them into custody at any stage since those dates.

There thus appears to have been no suggestion, and there

is no suggestion put before me, that they would seek to abscond

during the pendency of an appeal, or if the declslon went against

them. They have not so sought to abscond when the decision of the Administrative Appeals Tribunal went against them.

I have perused the reasons of the learned Deputy President in the Administratlve Appeals Trlbunal, and the notice of appeal. The questlon is not, of course, whether there has been an error. That is the very question which it is for the

Full Court to determine. It does not seem to me that it can be

said of this appeal that it is obviously doomed to failure, or that it is lacking in bona fides. I think that in accordance with the ordinary principles the applicant has made out a case that the appeal has sufflclent prospects to warrant the grant of

a stay.

J,

. _ 3 .

I think that conclusion can be more readlly drawn in a

case where the balance of convenlence is so completely in favour

of the applicants, though, of course, these matters are not

decided by balance of convenlence alone. What I do is, I order a

stay as sought pending the hearing and determlnatlon of the

appeal or further order of the court, but I condition that stay

upon the condition that the applicants will proceed with all due

expedltion In respect of the appeal, and I will grant liberty to

the respondent to apply on three days notice, so that there will

be a remedy should any failure of expeditious proceeding with the

appeal become apparent.

I think the costs of this appllcation should simply be

reserved.