Videto, W.B. v The Minister for Immigration and Ethnic Affairs

[1985] FCA 401

Administrative law - application for stay of deportation order

pending hearing of application under Judlcial Review Act for

review of	Minister's decision to deport - whether applicant must
establish	a serious question to be tried - relevance of grave

__-- l.

consequences flowing from refusal or grant of stay. L'-

"\

Administrative Decisions (Judicial Review) Act 1977 para.5(1) (e)

and ( 9 ) . sub-6.5(2)

MicrraEion Act 1958 para.6A(l)(e), s h - s . 7 ( 2 ) and 6.18

WAYNE BRENTON VIDCTO v. THE MINISTER FOR IMMIGRATION AND ETHNIC

AFFAIRS

No. WA G73 of 1985

TOOHEY J.

PERTH

20 AUGUST 1985

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
LESTERN AUSTRALIA	1 No. WA G73 of 1985
DISTRICT REGISTRY	1

GENERAL	DIVISION	1
IN THE MATTER of an Application for Review
and
IN THE MATTER of an Application for a Stay pursuant to the Administrative Decisions
(Judicial Review) Act 1977 as amended
B E T W E E N :
WAYNE BRENTON VIDETO

Applicant

and

THE MINISTER FOR IMMIGRATION

AND EIMNIC AFFAIRS

Respondent

MINUTE OF ORDER

JUM;E MAKING ORDER: Toohey J.

DATE OF ORDER:	20 August 1985
WHERE MADE:	Perth

THE COURT ORDERS THAT:

1. Proceedings under the decision of the Minister to deport the

applicant be stayed until determination of this application

or until further order.

2 . The hearing of this application be fixed for Friday,

30 August 1985 at 10.15 a.m.

3. Direct that the respondent file any affidavits in answer to

the applicant's affidavits by Monday, 26 August 1985.
4.	The applicant file any ffidavits reply n by

Wednesday, 28 August 1985.

5 . Liberty to the applicant to apply for his release from custody.

2 .

6. Liberty to parties to apply generally.

Note: Settlement and entry of orders is dealt

with in Order 36 of the Federal Court Rules

I ' ' _ I

IN THE FEDERAL COURT

OF AUSTRALIA

1

WESTERN AUSTRALIA

1 No. WA G73 of 1985

DISTRICT REGISTRY

1

GENERAL DIVISION

)

IN THE M A T E R of an Application for Review

and

IN THE MATTER of an Application for a Stay pursuant to the Administrative Decisions (Judicial Review) Act 1977 as amended

B E T W E E N :

WAYNE BRENTON VIDETO

Applicant

and

THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM: TOOHEY J.

20 August 1985

REASONS FOR JUDGMENT

This is an application under the provisions of the Administrative

Decisions (Judicial Review) Act 1977 for a review of a decision by

the Minister for Immigration and Ethnic Affairs that Wayne Brenton

Videto be deported pursuant to 6.18 of the Miuration Act 1958.

On 9 August 1985, while I was in Sydney and there was no

Judge of the Federal Court in Western Australia, I heard by

telephone a motion on behalf of the applicant that the respondent

be restrained from executing the deportation order until the

application for review had been determined. After hearing counsel

for the applicant and the respondent, I granted an injunction

until 19 August. On that day (yesterday) counsel appeared and

2.

made submissions relating to the contlnuance of the injunction.

The applicant was due for deportation on Sunday 11 August.

The applicant is a Canadian citizen and he was born in

Canada on 2 8 February 1942. He came to Australia in about 1969,

decided to make Australia his home, went back to Canada to

finalise his affairs in that country and returned to Australia

about a year later. Early in 1971 he met Valerie Gillespie and

they were married on 13 June that year. On 13 July 1973 their

child Andrew James Videto was born.

In 1972 or 1973 the applicant was granted a permanent

entry permit under the provisions of the Migration Act as they

then stood. About a year after the child's birth, the applicant

returned to Canada. Between the birth of his child and his

departure for Canada the applicant seems to have spent little time

with his family. The reason, as deposed to in an affidavit sworn

in support of the application for review, was that	he needed to be
elsewhere to get good jobs.

The applicant remained in Canada for 2 years or so and, in his words, "during this time the contact with my wife and child

faded". He returned to Australia on a 6 months visitor's visa; although no date is mentioned for his return, it must have been in

1976 or thereabouts. The applicant was unable to make contact

with his wife and child and after a few days returned to Canada.

A year or two later the applicant received a letter from

his wife who was living with another man by whom she had two

3.

children. About a year later (no precise date 1s mentioned) the applicant once more returned to Australia, again on a 6 months

visitor's visa. He spent about 10 days with his wife in Sydney

and she then returned to Queensland where she was living. A

reconciliatlon was discussed as Mrs. Videto was no longer living

with the other man. The applicant again returned to Canada to

wind up his affairs in that country with, he says, a view to

returning to Australia	to join his wife, their child, and his
wife's other children.	The applicant corresponded with his wife

but some years must have gone	by without any attempt	by	him to
return to Australia.

At the end of 1983 the applicant received a letter from

his wife saying that she was ill and early in 1984 another letter

saying that she was worse. In fact she had cancer from which she

died in 1984. Mrs. Videto's mother, Mrs. Gillespie, lives at Palm

Beach in Queensland and has had the care	of	the three children
since her daughter's death.'

In November 1984 the applicant once more travelled to

Australia, again on a 6 months visitor's visa. He did not go

immediately to Queensland but went to the Northern Territory where

he worked for a time. He sent $1,000 to his son and thereafter

spent 3 weeks with Mrs. Gillespie and the child at her home in

Palm Beach. In a search for work he went back to the Northern

Territory and then moved to Western Australia. His visa expired

and, on attending at the Immigration Department in Perth to seek

an extension of the visa, he was apprehended and detained at the

Immigration Detention Centre.

4.

The applicant's account of his relationship with his

wife and child is in many respects a curious one and leaves much

unexplained. But at this tage I am not determining the

substantive application, only deciding whether the xisting

order should continue. For this reason I propose to say little

more about the family history other than that the applicant has

produced correspondence evidencing a friendly relationship between

him and his son.

As formulated, the application for review relies upon

para.5(l)(e) of the Judicial Review Act viz. that the making of

the decision was an improper exercise of power. With reference to

sub-s.5(2), the applicant relies upon para.(b) viz. failing to

take a relevant consideration into account. The relevant

considerations which, it is said, the Minister failed to take into

account are the importance of the need to maintain and foster a

close personal relationship between the applicant and his son, the

fact that the boy is subject to a guardianship order in favour of his maternal grandmother and may therefore not join his father in Canada if that is his wish, and that the effect of the decision is to deny the applicant access to his son because of a governmental policy preventing deportees from returning to Australia within a

period of 5 years from their deportation. These are matters the

respondent says he has taken into account and points to

correspondence with the applicant in which reference is made to

his previous residence in Australia, his marriage and the

existence of his son. The applicant's reply is that while the

Minister may have had literal regard to these facts, he has made

5.

no assessment of their importance. At this stage the Minister has

not furnished a statement of reasons.

What the applicant seeks to do is to gain a further

entry permit under sub-s.7(2) of the Migration Act and, as the

holder of a temporary entry permit, argue that there are strong

compassionate or humanitarian grounds for the grant of an entry

permit to him pursuant to para.6A(l)(e) of the Act.

Through his counsel the applicant has said that if the

application proceeds to a substantive hearing he will seek to

amend the application so as to contend, with reference to

para.5(2)(g) of the Judicial Review Act, that there was an

improper exercise of power in so far as the decision was so

unreasonable that no reasonable person could have made it. I say

nothing about that matter at this stage. But what seems to me of

more importance is a contention in an affidavit sworn by the

applicant in which he says that he was interviewed by an officer

of the Department of Immigration and Ethnic Affairs. In the

course of that interview he said that he believed his case to be

one of strong humanitarian and compassionate grounds arising from

his relationship with his son. The affidavit then continues:

"This person then said 'your son is twelve

years old. He is out of the question. He

can't sponsor you.' I believed as a result of

this response that I had no grounds for

pursuing an application for change of status. I was then asked if I had any other reason I

wished to a vance in support of an

application and I did not say or put anything

down on the form because I believed from what

I had been told that I had no grounds".

6.

In effect this amounts to a contention that the

applicant was misled by the advice he received. In the absence of any answering affidavit, I express no view on the accuracy of the applicant's account of the conversation. Furthermore the

applicant does not at this stage rely upon	the conversation as a
ground for review.

But when this matter is taken into account together with

all the circumstances of the relationship between the applicant

and his son, I am of the opinion that there is a serious question

to be tried. I shall assume that to be the appropriate test,

having regard to a numher of recent decisions including Karatas v.

Hurford (unreported decision of Wilcox J., delivered 14 June 1985)

and Samuel6 v. Hurford (unreported decision of Woodward J.,

delivered 1 August 1985). Nevertheless I have strong reservations

that this is indeed the appropriate test. Although reference is

made in the papers to an interlocutory injunction, the appropriate

relief is an order suspending the operation of the decision of the

Minister or staying any proceedings under that decision, pursuant

to 6.15 of the Judicial Review Act. The analogy of any

interlocutory injunction is not necessarily appropriate. In that regard I refer to the remarks of Jenkinaon J. in Dallikavak v.

Minister of State for Immiqration and Ethnic Affairs (an

unreported decision of a Full Court of this Court of which

Jenkinson J.	was a memher, delivered 6 August	1985).	His Honour
said :

"There will be occasions when the exercise of

the power is sought at a time when the

refusal (or the grant) of a stay will have

.

I .

grave consequences, but it is impossible to

form any view as to whether there is such a

question to be tried. There will be cases in

which the prejudicial consequences for the

applicant of refusal of a stay (OK for the

community of grant of a stay) are of a kind

or degree outside the contemplation of those

who frame the criteria governing the grant of

interlocutory injunctive relief in litigation

concerning proprietary and contractual

interests".

Jenkinson J. adopted with approval the criterion

suggested by Keely J. in Perkins V. Cuthill (1981) 52 F.L.R. 236

at 238 - "s.l5(l)(a) requires an applicant to satisfy the court

that reasons OK circumstances exist which make it just that the

court should make the order sought". I respectfully agree.

I am of the opinion that it is just that there be a stay

of the Minister's decision to enable the applicant to present his

case for review. If it be necessary to go further, I am of the

opinion that there is a serious question to be tried. Subject to

what counsel may have to say as to the appropriate form of order,

I am of the opinion that there should be a stay of the Minister's

decision to deport the applicant, until the hearing of this

application.

I certify that this and the six

preceding pages are a true copy

of the Reasons for Judgment

herein of his Honour Mr. Justice

Toohey. "

Associate