Tooze, G. v Minister for Immigration & Ethnic Affairs - [1986] FCA 183

LIMITED l2ISTRIBUTION

CATCHWORDS

ADMINISTRATIVE LAW - Immigration - Deportation order -

Application for stay

- Whether delegate took into account the

application to review refusal of entry permit and humanitarlan

considerations - Relevance of pending District Court proceedings

- Failure to supply reasons under

s.13 Administrative Decisions

(Judicial Review) Act

- Whether serious question to be tried in

relation to validity of deportation order.

Administrative Decisions (Judicial Review) Act	1977 55.5, 15
Miqration Act 1958 s.18

Slnqh v Minister for Immiqration & Ethnic Affairs (unreported

December 19851, Ertan v Hurford (unreported	29 April 19861
referred to.
NSW G.349 of 1985 and G.193 of 1986

GLORIA TOOZE

v CHRIS HURFORD. Department of Immiqration and

Ethnic Affairs

Wllcox J

Sydney

14 May 1986

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. G.193 of 1986
)	No. G.349 of 1985

GENERAL DIVISION

)

BETWEEN: GLORIA TOOZE

Applicant

AND:

CHRIS HURFORD

DEPARTMENT OF IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM :	WILCOX J
PLACE :	SYDNEY
DATE:	14 MAY 1986

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application for an order under 3.15 of the Administrative Decisions (Judicial Review) Act 1977 be refused.

2 .

The costs of the application be the respondent's filing a fresh Application this day.

AND THE COURT NOTES:

That the undertaking given

on behalf of the applicant

to file this day

a new Application seeking review of

the deportation order made in respect

of the

applicant on

10 April 1986.

2 .

The proceedings instituted in November

1985, that is

number G.349 of 1985, are to be listed for further

mention on 5'June 1986 at 9.30 a.m. and that there

are existing directions as to the filing of

affidavits prior to that date.

AND THE COURT THEREFORE DIRECTS THAT:

1. The new proceedings t o be instituted this day be

listed for directions on

5 June 1986.

Affidavits in the new proceedings be filed in directions in proceedings number G.349 of 1985.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G.193 of 1986
)	No. G.349 of 1985
GENERAL DIVISION	)

BETWEEN: GLORIA TOOZE

Applicant

AND: CHRIS HURFORD

DEPARTMENT OF IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM :

WILCOX J

PLACE	:	SYDNEY
DATE :	14 MAY 1986

EXTEMPORE REASONS FOR JUDGMENT

This is an application under

5.15 of the

Administrative Decisions (Judicial Review) Act 1977 for an

interim order to stay the execution

of a deportation order

made by a delegate

of the respondent Minister requiring

the

deportation of the applicant, Gloria Tooze.

The matter is somewhat irregular from a procedural

point of view in that the only Application which is before the

Court at the present moment

is an Application

which was filed

on 28 November last seeking review of an earlier decision made

on behalf of the Minister to refuse the grant to the applicant

of an entry permit. The Application actually speaks of a

refusal of "resident status" but

I ake this to be a reference

to a permanent entry permit. As counsel for the applicant

acknowledged, the jurisdiction under

3-15 arises in relation

to the implementation of a decision the subject of an

application for review and, as

I say, at the present time

there is no application in regard

to the deportation order.

However, counsel indicated that hTs client proposed to file

new Application which would seek review of the deportation

order made on

10 April last and on his undertaking on behalf

of his client hat an Application would be filed during the

course of today I have proceeded to hear argument in relation

to the application for	a stay of the implementation of that
order.

Counsel for the applicant indicated that the ground

which would be relied upon by his client in relation to

the

new application would be that the Minister by his delegate had

failed to take into account relevant considerations: see

s.5(2)(b) of the Administrative Decisions (Judicial Revlew)

A A .

Counsel nominated three matters which

would be relied

upon in this respect.

I will deal with them in an order

differing from

that in which they were mentioned by counsel.

The first matter is that it is said

that the deleqate

failed to take into account the fact that the applicant had

pending in this Court the Application filed on

28 November

1985 and her entitlement to have that application heard and

determined according

to law. It does not appear to me that it

is likely that the applicant can make out a case that the

delegate failed to take into account the pendency of the

existing application. There was tendered in evidence by

counsel for the applicant a Minute dated

8 April 1986 prepared

by Mr J J Stankevicius, the Acting Director, Enforcement of

the Department of Immigration and Ethnic Affairs, in which he

made certain recommendations to the delegate in respect of

deportation. That Minute makes speciflc reference in para.11

to the making of the application to this Court and to the

nature of the relief sought. It refers in para.12 to the

content of an affidavit in support sworn by the applicant and

dated 27 November 1985.

It seems to

me impossible to argue

that the delegate was ignorant

of the existing Application

when he made his decision to deport. The weight to be given to that matter was a matter for the delegate to determine,

unless the situation was such that

it could be said that a

decision to deport was under the circumstances an exercise of

a power in a manner

so unreasonable that no reasonable person

could have so exercised the power: see s.5(2)(g) of the Act. category,

_ .

The second matter is a submission that

the decision

was invalid because

it failed to take into account what

counsel called the humanitarian considerations referred to in

a letter dated 10 April

1986 from the applicant's solicitors'

to the Department. It appears from

Mr Stankevicius' Minute

that the applicant was interviewed by a Departmental officer

on 21 March 1986, when certain information was given as

recorded in para.13 of his Minute.

In para.14 of the Minute

the statement is made that at the interview the applicant's

solicitor advised that the written submissions to be provided

by her would be made available

to the Department within seven

days.

I take it from this that the solicitor was present at

the time of the interview. The paragraph goes

on to say that

on 2 April 1986. in the absence of such submissions, a

telegram was forwarded to the solicitor referring to his

undertaking and inviting lodgment of submissions by close of

business on 3 April 1986, but no submissions were received.

Mr Stankevicius then went ahead and prepared his Minute.

However, as it happened, the decision to deport was not taken

until 10 April 1986. I am informed by Mr Roberts, counsel for

the respondent. that his instructions are that the letter from

Mr McCourt. the solicitor, which bears date 10 April 1986 was

in fact received and placed before the delegate before the

delegate reached his decision. If those are the facts, then

the position is that the delegate had the benefit of

McCourt's written submissions

on behalf of the applicant at

the time he took the decision to deport.

Z have no reason to doubt the correctness of Mr

Roberts’ Lnstructions, but

I comment that if those

instructions were mistaken and the fact was that the deleqate

took the decision before Mr McCourt‘s letter arrived. then

on the basis of what is said

in para.14 -- the fault would

rest entirely with Mr McCourt. This might be small comfort to

the applicant, if there was no default on her part, but the

delegate was entitled to proceed to make

a decision after

. having given

a reasonable opportunity to the applicant to

place further material before him. If his decision was taken

before the applicant put other matters,

it could not be said

that his decislon was invalid

for failure to take into account

relevant considerations. In this respect I refer to what I

have said in two recent decisions in regard to the

responsibility for applicants to put before the decision-maker

matters within their personal knowledge: see Sinqh

v Minister

for Immisration and Ethnic Affairs (unreported

4 D cember

1985) and Ertan v Hurford (unreported

29 April 1986). The

extent to which the matters set out in Mr McCourt‘s letter

should be taken into account was entirely	a matter for the
delegate.

The third matter seems to me the only matter which

may be said to have any real substance.

It appears that the

applicant was injured

in a motor accident which occurred on

April 1984.

There is material before the Court.

In the form

- ,

of an affidavit sworn by Mr McCourt

today, from which it

appears that the accident was reported to the police. The traffic accident report gives reason to assume that the

applicant will be successful

in establishing negligence

against the driver of the vehicle

in which she was riding when

the accident occurred. There is also

a medical report of Dr W

G Taylor relating to her injuries. Neither the traffic

accident report nor

Dr Taylor's report was before the delegate

at the time of his decision. All that he knew was that the

applicant had been involved in

a motor accident, and that

relation thereto she had embarked upon proceedings for damages

in the District Court which were still pending.

It is,

however, important to note that he was made aware of these

-facts. In para.12 of the Minute reference was made to this

matter in the context of summarizing the applicant's affidavit

of 27 November 1985.

The following passage appeared:

'Ir

'she suffered injuries following

a motor

vehicle accident

in April 1984 and was

pursuing a claim for damages which if not

resolved at a conference on 18 February

1986 might not be resolved

until 1987;

if her claim for damages was delayed

and

she was required to leave Australia she would be unable to save sufficient income to return to Australia to pursue that

claim;

In para.23 under the heading "Assessment",	Mr Stankevicius
returned to this subject. He said this:

"The Applicant has

a compensation claim in

respect of injuries

in a motor accident in

1984 and her solicitors have estimated that

she will be seekina maintenance and

property

settlement through the Family Court. She says

that if she has to return to the Philippines

then she would not be able to earn sufficient

income for a ticket to return

o Australia for

the hearina

of the claim. Leual Branch has

advised that her legal claim can be

pursuedldetermined by her solicitors in her

jbsence overseas. but that this could be

preiudicial to her. Therefore, while her

compensation claim and any other

l ual claims

are a relevant consideration in

deciding

whether to deport the Applicant, they are only

one out of a number of relevant considerations

and you may decide that the Applicant's legal

claims are not sufficiently compelling to

restrain you from ordering her deportation."

The information which

is disclosed in this Minute is the whole

of the information which was within the knowledae

of the

Department at the time when the Minute was prepared. This

again is a case where the applicant has not put before the

Department matters within her knowledge and which she might

have wished to have taken into account.

The matter of the motor accident was referred to

Mr McCourt in his letter of

10 April and to this extent the

material in the Minute was supplemented. Mr McCourt said this

in para.6 of his letter:

"Our client is

the plaintiff in a claim for

damages for personal injuries arising out of a

motor vehicle accident which occurred in April

1984.

The claim for damages

i3 unlikely to be

resolved until 1987.

We would submit that our

client is entitled

to pursue her ci*Jil

remedies. If she is required to leave

Australia she will not be able to afford a

return airfare to Australia for the hearina

her claim and her civil rights will be if not

eliminated severely prejudiced."

At para.12 of that letter Mr McCourt commented in relation to

the applicant's health. His comment includ3s the following:

"Apart from minor disabilities arising out of her motor

vehicle accident she

is in sound health".

' It

seems to me that there is

no basis upon which it

can be said

that there is a serious question to be tried as to

any failure by the delegate to take into account the pendency

of the District Court litigation or the adverse consequences,

so,far as

the applicant is concerned,

of deportation prior to

the hearing of that claim. The delegate

was informed of the

existence of the claim and its general nature both by Mr

Stankevicius and by

Mr McCourt.

It was pointed out to him

that if the applicant was deported then she would not be able

to earn sufficient income to return

to Australia for the

hearing of the claim and that this was likely to be

prejudicial to her. The only inference I can draw is

that the

delegate was aware of the situation, insofar as the Department

had been informed by or on behalf of the applicant of the

details, and that he took it into account. What weight he

should give to that matter was. once again,

a matter for him;

in the absence

of some attack on the basis that the decision

was unreasonable. No such attack has been made.

Counsel for the applicant drew attention

to the fact

that no reasons had been supplied under

s.13 of the

Administrative Decisions (Judicial Review)

Act in relation to

the decision to deport.

In fact. no application for

Statement of Reasons has yet been made; despite

he fact that

the relevant decision was made on

10 April.

I was informed by

counsel that notice of

the making of the deportation order

was

not served on his client until

28 April 1986. This partly

explains why an application was not made at an earlier point

of time, although it would have been-appropriate to seek

8.13 Statement immediately after notice was served. However

that may be, no request has been made and no Statement has

been supplied. Counsel for the respondent indicated that

s.13 Statement would be likely to be available within five

days of a request being made. and counsel for the applicant

thereupon requested an adjournment of the. present application

for a period of about five days

with an interim order being

made in the meantime staying the implementation of the

deportation order.

I am not prepared to accede to

that application. It

seems- to me

a necessary foundation of any interim order that

the Court reach

a positive conclusion that there is

a erious

question to be tried. The amount of material which is

necessary to constitute

a serious question to be tried will

doubt vary according to the information which

is before the

Court.

I mean by that that there may be an occasion upon

which there is extremely little information before the Court

but there is enough to raise concern and, under the

circumstances. the proper exercise of discretion is to make an

order until there

is opportunity for

a fuller picture to

emerge, By contrast there may be cases where, although the

application is one for interim relief, the Court can feel

confident that the whole

of the relevant material,

or at least

the vast bulk of the material. is in fact before

it. I think

that the present case falls into the latter category.

It is

true, as counsel for

the applicant points out, that

the Court

does not know the reasons of the delegate, as distinct from

the material put before him. However, it seems to me

extremely probable that the reasons will adopt the material

put before him. It is highly improbable that

he eschewed

consideration of matters which were clearly relevant and which

were contained in

the document prepared for his guidance.

think that nothing would be gained

by an adjournment. On the

material before me

I do not think that there is any serious

question to be tried as to the validity of

the deportation

order.

I am therefore not prepared

to exercise the

jurisdiction of the Court

by making an order under

5.15.

L refuse the application for

an order under s.15 of

the Act. The costs of this application are to be the

respondent‘s costs in

the principal proceedings to be

initiated by filing a fresh Application today.

I note that

the proceedings instituted last November. that

is number G.349

of 1985, are to be listed for further mention on

5 June 1986

and that there are directions as to the filing of affidavits

in the meantime. It seems to me appropriate that the new

proceedings also be listed on that day.

It would be desirable

that the affidavits in the new proceedings be filed in the

meantime so that the two matters will be

in a position to be

dealt with together on that day; as regards the fixing	of a
date for a final hearing.

1 . -

I certify that the ten

(10)

preceding paqes to be a true copy of

the Reasons for Judgment of

the Hon Mr Justice Wilcox

Associate: iiva>s/he A

Date :

20 May

1986

Counsel for the Applicant:

Mr M Elkaim

Solicitors for

the Applicant:

Messrs McCourt Ward-Harvey

Counsel for the Respondent:

Mr P Roberts

Solicitors for

the Respondent:

Australian Government

Solicitor

Datecs) of hearing:

14 May

1986