Topuz, M. v Minister for Immigratio & Ethnic Affairs

[1985] FCA 523

Re: MAHMUT TOPUZ; HATICE TOPUZ and ENDER TOPUZ
And: THE HONOURABLE CHRISTOPHER JOHN HURFORD, MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS
No. VG184 of 1985
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.

CATCHWORDS

Administrative law - judicial review - notice of motion seeking order that previous order staying deportation be discharged - serious question to be tried - failure to take account of relevant consideration.

Administrative Decisions (Judicial Review) Act 1977

HEARING

MELBOURNE
#DATE 9:10:1985

JUDGE1

This is a notice of motion in relation to an application for a review under the Administrative Decisions (Judicial Review) Act (the Act). An order was made ex parte on 5 August 1985, restraining the respondents from deporting the first and second named applicants. That order was not, in terms, limited as to time, being made "until further order". but it reserved liberty to any party to apply. The subsequent history of the matter reveals a number of unusual features.

First, the respondents' notice of motion, which was not supported by any affidavit, was issued on 15 August 1985, returnable on 23 August 1985 and on that date adjourned until 13 September 1985 - apparently to enable the preparation of a statement of reasons under s.13 of the Act. On that latter date it was adjourned by Northrop J to a callover list on 27 September 1985 and was then fixed for hearing on 7 October 1985.

Second, no directions were sought on 5 August 1985 or on any later occasion as to the future steps to be taken in relation to the application.

Third, on the first day of the present hearing (7 October 1985) the respondents were under the misapprehension that the hearing was for the substantive application as well as for the respondents' notice of motion. However, the respondents' counsel accepted the statement by the applicants' counsel that on 13 September 1985, in answer to a specific question from counsel for the applicants, Northrop J said that he had only referred the respondents' notice of motion to the callover on 27 September and that it was not his Honour's intention that the applicant's substantive application for a review should be referred to the callover list.

Fourth, a statement of reasons was supplied by the respondent Minister to the applicants on 13 September 1985 but, contrary to the Department's usual practice of supplying a copy of each annexure referred to in it, none of those annexures were supplied to the applicants at any time before the date fixed for the hearing.

Fifth, the officers of the respondent Minister's department were under the misapprehension, until the first day of the present hearing, that those annexures had been supplied to the applicants with the statement of reasons. Upon discovering that they were mistaken in that belief, the respondents then supplied the annexures to the applicants.

Sixth, the respondents were also under the misapprehension that the s.13 statement of reasons had been filed in the Registry by the applicants as required by Order 54 Rule 3(1)(b) of the Federal Court Rules.

On the first day of the hearing Mr Rose, of counsel, for the respondents tendered the s.13 statement of reasons and also tendered all of the annexures to it. Mr Johnston, of counsel, for the applicants objected to the tender of the annexures; they were voluminous and he had not had any opportunity to examine them. The respondents initially stated that they wanted to rely upon those annexures in support of their notice of motion. After an adjournment to enable a brief examination by the applicants' legal advisers of the annexures, the court was informed that the applicants maintained their objection to the tender. The respondents' counsel then decided not to seek to tender any of the annexures but submitted that the hearing of the notice of motion should proceed despite the fact that the annexures would not be in evidence. .

On the hearing of the respondents' notice of motion the applicants addressed first, as a matter of convenience, so that the respondents would know on what basis the applicants contended that the stay granted on 5 August 1985 should continue. On the second day of the hearing, after hearing the applicants' case, the respondents sought to tender the annexures to the s.13 statement of reasons but an objection to that tender was upheld. In the result the court has not seen any of those annexures other than certain medical reports, tendered by the applicants. That tender was objected to by the respondents but they were admitted in evidence having regard to the earlier reception into evidence (without objection by the applicant) of a medical report, tendered by the respondents, by a Dr Ryan who had been asked by the respondent Minister's department to "comment" upon matters dealt with in the medical reports tendered by the applicants.

Mr Johnston submitted that, having regard to the balance of convenience, there is a "serious question to be tried", sufficient to support the continuance of the stay until the hearing and determination of the substantive application. One of the bases for that submission was, in essence, that the Minister's delegate had not considered the effect of the deportation order upon the third named applicant in the present proceedings who, as the Australian born child of the first and second named applicants, is an Australian citizen. Paragraph 9 of the statement of reasons referred to that child's birth and paragraph 28 was in the following terms:

"I further considered the situation of the Australian born child of the Applicants. I do not accept that temporary residents reasonably acquire any expectation of permanent residence by becoming parents of an Australian born child, or that such circumstances constitute strong compassionate grounds to enable the Applicants to remain in Australia. I did not regard such circumstances as constituting strong compassionate or humanitarian grounds for the grant of permanent entry permits to the Applicants."

I have heard the submissions of counsel for the applicants and counsel for the respondents as to the meaning of paragraph 28. The applicants contend that paragraph 28 is directed only to the effect of the deportation order upon the child's parents (the first and second named applicants) in the light of the fact that they had a child born in Australia; they contend that it is not directed at all to the effect upon the child, who is an Australian citizen, of the proposed deportation of the parents and that the effect upon the child was not considered by the Minister's delegate. Having read and re-read paragraph 28, I have come to the conclusion that there is a serious question to be tried as to whether the Minister's delegate failed to consider the effect of the proposed deportation order upon the child born in Australia and whether he thereby failed to take into account a relevant consideration. Accordingly the respondents' motion is refused. Having reached that conclusion I do not express any opinion as to the other matters relied upon by the applicants.

Mr Rose, on behalf of the respondents, submitted that, irrespective of the result, costs should be reserved. Mr Johnston on behalf of the applicants agreed that costs should be reserved if the respondents were successful but sought an order for costs if the applicants succeeded.

The ex parte order of 5 August 1985, granting the stay the subject of the present notice of motion, reserved the costs. It is noted from the material that on 21 June 1985 the applicants' then solicitors were notified that deportation orders had been signed. Had those solicitors moved with reasonable speed, notice of the proposed application for a stay of the deportation orders could have been given to the respondents thus avoiding the necessity for an urgent ex parte hearing of the application for a stay, followed by the present hearing of the respondents' notice of motion that the stay order be discharged. In this connexion it is perhaps not irrelevant that as early as September 1984 the applicants solicitors, in seeking "reconsideration of resident status for the family" had "indicated that in the event of an adverse decision, a request would be made to have the matter adjudicated under the" Judicial Review Act.

In all the circumstances I consider that the appropriate order is that costs be reserved.