Vergara, J.M. v Minister for Immigration & Ethnic Affairs

[1985] FCA 565

NUTX: Not considered approprlate f o r reporting or for

general dlstribution.

(m)

IN THE FEDERAL COURT-OF AUSTRALIA 1

1

VICTORIA D I S T U T REGISTRY	)	No. VG 241 of	1985
\

and

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS Respondent

- MINUTES OF ORDER

COURT: Woodward J.

--	DATE: 30 October 1985
PLACE: Melbourne

THE COURT ORDERS THAT:

The application be dismissed with c o s t s .

(Settlement and entry of orders 1s dealt with by 0.36 of the

Federal Court Rules).

EQCY-: Not considered appropriate for reporting or for

general distribution.

(m)

IN THE FEDERAL-COURT OF AUSTRALIA )

)

VICTORIA	DISTRICT	REGISTRY	)	No. VG 241 of 1985
)

GENERAL DIVISION	)
BETWEEN:

JAIME MIGUEL VERGARA Applicant

and

- MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS Respondent

m: Woodward J.

m: 30 October 1985

PLACE: Melbourne

EX-TEMPORE JUDGMENT

This is an application for a stay of the deportation of

an applicant for an order of review, pursuant to the

Administrative‘Decisions (Judicial Review) Act 1977, of three

decisions made within the Department of Immigration and

Ethnic Affairs. The first is a decision refusing to grant a

temporary entry permit to the applicant; the second, a

decision not to refer the applicant’s case to the

Determination of Refugee Status Committee; and the thlrd,	a
decision to deport the applicant from Australia.

- 2 -

It is, of course, necessary for me to be satisfied,

first, that there is a serious questlon to be tried, before

it becomes approprlate to issue any such interlocutory order;

see Fainqold v Zammlt (1984) 1 FLR 87 and Epltoma Pty Ltd v

AMIEU (1984) 3 FCR 55 at pp.58-9, and cases there cited. I

have to say that I am not satisfied that the applicant has shown any serious question to be tried within the meaning of that expression as explained in those decisions.

In support of the application, three points have been

made on behalf of the applicant. The first is that there are

references, in the material which was before the Minister's delegate, and in the findings of material questions of fact which were adopted in the decision of the delegate, to the applicant having an alias.

In my view there is nothing to suggest that the delegate

made any incorrect or improper use of references to the fact

that the applicant apparently, according to the custom of his

country, used sometimes his father's name and sometimes his

mother's. There is nothing to suggest the delegate regarded

that as a sinister fact or took it into account in any way at

all in reaching his decision.

Secondly, it is said that considerations of policy have

in this case been taken into account without regard to the

merits of the particular case, contrary to	the provisions of
s.5(2)(f) of the Adminlstrative Decisions	(Judicial Review)

Act 1977. It 1s true that the delegate has given

- 3 -

conslderable weight to the fact that the applicant is in

Australia as a result of "~umping ship" whlle serving as a

merchant seaman, and as a result of that he is, In effect,

jumping the queue for immigration into this country and

seeking to receive consideration ahead of those people who

have complied with the requirements of Australian law by

making appropriate application from some other part of the

world to be accepted as immigrants into this country.

However, there is, to my mind, no suggestion in the

material before me that that matter has been given improper

weight, or that it has been considered to the exclusion of

the various matters which can be argued in favour of the

applicant.	That challenge to the delegate's decision must
also fail.

Finally, it has been put that the delegate failed to

take into account the problems which the applicant might face

on his return to Chile by reason of the fact that he has

ignored letters recalling him to the navy of that country, in

which he had served for some 4 or 5 years before joining the

Greek Merchant Marine. The only reference to this matter in the formal material put before the delegate, which he adopted

in making his decision, is to be found in paragraph 4 under

the general heading of Findings of Material Questions of

Fact, where it is said:

"He cannot rejoin the Greek Merchant Navy because

he cannot provlde a bond of $1500, and is unable to

loin the Chilean Merchant Navy because of lack of

certification. A l s o he had received a recall

notice to the Chilean Navy around	1979 which could
cause problems on return."

- 4 -

I have had placed before me this morning an affidavit by

Phillip Alexander Hamilton, solicitor for the applicant, in whlch he avers, on information and belief, amongst other things, that the applicant

at the end of 1980 after a year's stay in Greece. 'I.. .. received a letter on returning to Chile

That letter required him to present himself to be drafted back into the Armed Forces.

The applicant is a left-wing socialist, and is

opposed strongly to the policies of the ruling

Military junta in Chile.

Immediately after receiving the letter, the

applicant left Santiago, and hid in a small town in

the country until his mother was able to procure

his berth on the ship which ultimately brought him

to Australia. "

The affidavit also states:

"The applicant instructs me that he is genuinely

fearful of returning to Chile as he will

undoubtedly be punished as a deserter from the

Armed Forces, and he may well be executed, whether

as a result of formal process of law or secretly

because of his political affiliations."

I can only say that that statement, which was placed

before me at the last minute, finds no true echo in the

information which the appllcant himself supplied to the the material available to the delegate at the time that he reached his decision. The notes there say:

"CThe applicant7 cannot join the Chilean

Merchant Marine because he did not pass certain

exams and was told he was going to be sacked/

dismissed in 1979. He received a letter of

dismissal but was told by the Captain of his ship

it was not acceptable so he left anyway. He does

not know if he is considered as a deserter.

He left Chile shortly after for a period of

one year or s o and went to Greece where he found a

job on a ship, he went back to Chile - ' I

- 5 -

I pause to say that appears to me to be significant -

' I . .. where he received a letter directing him to

report to the Navy prior to certain date.

He did not do so and returned to Greece about

two months after receiving the letter."

There is nothing else in the material which would

suggest that he regarded his situation as being one of life

and death. I note that since being In Australia he has made

no application to be considered as a refugee and that the

lengthy letter which his fiancee addressed to the Department

contains no reference to any fear on her part about the fate

that might await him on returning to his country. It may

well be that, if the authorities catch up with him there, he

will be required to return to service in the navy; but on

the material before me I am not persuaded that the situation

is any worse than that and I believe that the advisers to the

delegate were entitled to refer to the matter in the terms

that they did under the heading o f Findings of Material

Questions of Fact. It was not encumbent upon the delegate,

or those advising him, in all the circumstances of this case,

to deal with that as a special matter requiring further

discussion later in the narrative in which the case for the

applicant was set out.

On the contrary, it seems that the whole'weight of the application at that time was based upon the plans of the

applicant to marry an Australian citizen; it was a

compassionate plea which was being made and it was that which

was dealt with, in substance, by the delegate. The attempt

- 6 -

to add drama to the applicant’s situation vis-a-vis the

Chilean navy has come at a late stage of the preparation of material for this Court, and I am unable to find that there was any failure on the part of the delegate to give proper consideration to the material on that issue which was before

him at the time that he made his decision. For those reasons

the application for	interlocutory relief will be dismissed
with costs.

I hereby certify that this

and the five ( 5 ) preceding

pages are a true and accurate

copy of the Reasons for

Judgment herein of

The Hon Mr Justice Woodward

Associate

Dated: 30 October 1985

Counsel for the Applicant: Miss S Cohen Solicitors for the Applicant: Hamiltons

Counsel for the Respondent: Mr G Johnston

Solicitors for the Respondent: Australian Government

Solicitor