Varghese, J. v Minister for Immigration & Ethnic Affairs

[1986] FCA 379

5. 379

NOT CONSIDERED SUITABLE FOR CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) NO. 371 Of 1986
)

DIVISION	GENERAL	1
BETWEEN:

JOLLY VARGHESE

Applicant

- AND :

MINISTER FOR

IMMIGRATION AND ETHNIC

AFFAIRS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

The situation is that I have an application before me in

a somewhat informal form supported initially by an affidavit from a Miss Glantzlen, who says she is the de facto wife of the applicant and gives some details in support of that statement. The informality and incompleteness of the application and the evidence are explicable by virtue of the speed involved in view

of the imminent deportation of the applicant unless some order is

made. I understand the application to be under the

Administrative Decisions (Judicial Review) Act 1977 and no

objection has been taken on that footing.

2 .

Oral evidence has been proffered, arising out of a

matter to which attention was drawn during the argument, that

prior to the making of the decision to make the deportation

order, an officer of the Department, who is now the acting

Assistant Director of the Enforcement Section, and was then

responsible for the preparation of the submission which led to

the deportation order being made, was told that the solicitor for the applicant had instructions to make an application, based on s.6A(l)(e) of the Migration Act 1958, arising out of the de facto relationship between the applicant and the lady (whose name may not have been mentioned in the conversation, as I understand the evidence).

It would of course be necessary, if such an application were made, that it be made on the basis that an application would be made first for the grant of a further temporary entry permit, since s.6A(l)(e) is only available to someone who is the holder of a temporary entry permit which is in force, and there are

strong compassionate or humanitarian grounds for the grant of an

entry permit to him. But I would think, prima facie, an

experienced officer of the Department would readily understand that that would be open as a way of dealing with the matter, and at any rate that the substance of what would be sought would

involve such an application.

The fact is that the submission which was prepared makes

no reference whatever to the de facto relationship which, apart

r' 3 .

.	from its bearing on the proposed application under s.6A(l)(e), would also obviously have a bearing on whether a deportation
order should or should not be made. When I say that, of course,

I am not saying anything about the effect that should properly be

given to it, but it was obviously a circumstance relevant to the consideration of the matter, and indeed of perhaps considerably more relevance than some of the circumstances that are set out in the document which is in evidence.

- - .. .. The answer pY6ffer.ed on behalf--of the Department is- not-

to suggest, either by evidence or submission that this is not so,

but to suggest that the alleged conversation with the officer of

the Department did not take place. The officer named has gone

I

into the witness box and has sworn that he has no recollection of

this matter being put to him in respect of this case.

It seems to be common ground that there were a number of

cases discussed between the solicitor and the officer of the

Department, and the officer admitted in cross-examination that

there was another of them that he had forgotten until reminded by

the solicitor. The test for the purpose of the interlocutory

relief which is sought in this application is not the discharge

of an onus such as would have to be discharged upon a final

hearing, but the well-known standard laid down in the Coarse

Grain Case ( 5 7 A . L . J . R . 4 2 5 ) and other cases to like effect.

(See Epitoma Pty Ltd v. A.M.I.E.U. 3 F.C.R. 5 5 and Shercliff's

Case L19781 1 N.S.W.L.R. 729 at 7 3 4 . )

4 .

Applylng that test, it seems to me that a sufficient

case has been made out by the sworn evidence of Mr Barlow, the

solicitor for the applicant. Indeed if one were welghing the

matter up finally one would have to pay considerable regard to

the difference between the position of a witness who is giving

evidence of what he says is his recollection of a piece of

information he gave to someone else, and the position of a

witness who, having received information in several cases, is

- . . unable to recall receiving the information in the particular

case. Indeed the officer gave an answer the effect of which I

understood to be that he was placing some reliance on his

practice to make notes of things communicated to him in

particular matters.

A t any rate, I am satisfied to the requisite degree that

a sufficient case has been made out, to require me to consider the balance of convenience, that a factor which was relevant and

which was communicated to an appropriate officer of the

Department was not taken into account in any way in the making of the decision to make the deportation order, or in the making of the decision to carry it into effect. I think, having regard to

the consequences of carrying out a deportation order for the

applicant in his situation, and weighing against them the consequences of a stay of the order to enable the matter to be more fully investigated and brought to a final hearing upon full

evidence, that I should exercise my discretion by granting a stay

-

J 5.

of each of the decisions which I have mentioned, and that	I
should make an appropriate order to give effect to that stay.

It will be noted that upon my delivering the ex-tempore reasons which I have just delivered, Miss Fegan has informed me that she is instructed on behalf of the Department to give an undertaking that the deportation order will not be carried out pending further order of the Court. I accept that undertaking

and make no further order, except that I will reserve the costs.

I certify that this and the

preceding four ( 4 ) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett.

c. L h&’

Associate

Dated: 27 August, 1986.