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

RESTRICTED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

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

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

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.

. _

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.

CaseChat Overview and Summary

The Federal Court of Australia heard an application from Donald Stanley Thompson and Merle Thompson for a stay of their deportation order, which was made by the Administrative Appeals Tribunal and upheld by a delegate. The Minister for Immigration and Ethnic Affairs opposed the application on the grounds that there was no apparent error in the decisions and no obvious errors of law. Burchett J accepted the applicants' argument that they had been at large since 1984 and 1985 respectively without attempting to abscond, suggesting a low risk of flight during the appeal process. The judge also found that the appeal was not obviously doomed to failure and had sufficient prospects of success. Therefore, the court granted the stay pending the appeal, on the condition that the applicants proceed with due expedition and that the Minister could apply to lift the stay if necessary.

Burchett J considered the legal issues involved in granting a stay pending appeal, which included whether the appeal had sufficient prospects of success and whether the balance of convenience favoured the applicants. The judge concluded that the applicants had made out a case that the appeal had sufficient prospects of success and that the balance of convenience was heavily in their favour. The judge also noted that the application for a stay was not decided solely on the balance of convenience but also on the ordinary principles of whether the appeal had sufficient prospects of success.

In reaching his decision, Burchett J reviewed the reasons of the learned Deputy President in the Administrative Appeals Tribunal and the notice of appeal. The judge noted that the question was not whether there had been an error but whether the appeal had sufficient prospects of success. The judge found that the appeal was not obviously doomed to failure and that it had sufficient prospects of success. The judge also noted that the applicants had not sought to abscond when the decision of the Administrative Appeals Tribunal went against them, suggesting a low risk of flight during the appeal process.

The court granted the stay pending the appeal, on the condition that the applicants proceed with due expedition and that the Minister could apply to lift the stay if necessary. The costs of the application were reserved.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established