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

[1985] FCA 441

44 I INTENDED NOT FOR DISTRIBUTION _/ - - .

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IN THE FEDERAL COURT 1 l

OF AUSTRALIA \ \

WESTERN AUSTRALIA	1	No. WA G73	of	1985	[ - - S 8 6 1 d 2 ~ 6 c	!	,
DISTRICT REGISTRY	)

DIVISION GENERAL I \-

IN THE "ER 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 :
W Y N E BRENTON VIDETO

Applicant

and

THE MINISTER FOR IMMIGRATION	AND
ETHNIC AFFAIRS

Respondent

m: TOOHEY J.

9 August 1985

EX TEMPORE REASONS FOR JUDGMENT

The basis for the making of an interlocutary injunction

in regard to an application under the Administrative Decisions

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(Judicial Review) Act 1977 is 6.15 of the Act. This empowers the

Court, on such conditions as it thinks fit, to suspend the

operation of a decision or to order a stay of any proceedings

under a decision. The criteria which the Court applies in these

cases has been expressed in various ways;

put as high a6 a prima facie case

by Mr. McKenna.

i

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One formula that has been used quite frequently is

whether there is a serious question to be tried. But essentially

the applicatlon of 6.15 requires the Court to look at the justice

of the situation and decide whether, in all the circumstances, the

exercise of power under the section is warranted.

In the present case it is apparent that neither the

applicant nor the respondent is in a position to put all the

material before the Court that would be relevant, not to the

hearing of the substantive application but to the hearing of a

motion for an interlocutory injunction. That is not to be

critical of anyone, certainly not of the respondent because the

notice of motion has been filed as a matter of urgency. Miss

Francas has criticised the absence of material in the affidavit

filed on behalf of the applicant which, if it existed, would show

that the Minister failed to take into account matters which it is

said in the application he ought to have taken into account. Had

the application come before me without the urgency that has

prompted the application, that submission would have considerable

force. But I have to take into account also the consequences of

not granting an interlocutory injunction and they are that the

applicant will be deported on Sunday.

If this were a matter which related only to himself,

there would not be enough to prompt me to grant an interlocutory

injunction. But it is apparent that there is a relationehip

between the applicant and his son. While it may well be, in the light of the material, that the relationship is not one that he

3 .

applicant has fostered with all the care that one might have

expected, it seems to me that I cannot Ignore the consequences of

refusing an interlocutory injunction, at least a this stage. The

practical result will be that the applicant will be deported on

Sunday; in practical terms that will be the end of any

relationship between him and his son. It cannot be said that the

relationship can be maintained by the child going to Canada

because there is a guardianship order in favour of the child's

grandmother. So, whatever criticisms can fairly be aimed at the

material presently before the Court,	I am of the opinion that I
must look to the justice of the case	in the broadest terms and,

having done so, I am persuaded that there should be an injunction.

Having said that, I am not persuaded, nor do I propose,

that there be an injunction until after the application for review

has been determined. What I propose is that the applicant be

given sufficient time to place before the Court such additional material as is relevant to the application for an interlocutory

injunction and, in particular, to place before the Court some

material relating to what was said by the applicant to the

particular officer or officers to whom he spoke when seeking an

extension of his temporary entry permit. Equally that would give

the respondent an opportunity to place before the Court material

showing what the Minister or his representative was told and the

extent to	which the Minister took those matters into account.
I emphasise that I am not requiring the parties to place

before the Court the entirety of the material that might be

expected if this was a substantive hearing. What I am saying is

I c e r t i f y t h a t t h i s and the three preceding

pages are a true copy of the Ex Tempore Reasons f o r

Judgment here in of his Honour M r . J u s t i c e Toohey.

Associate

Dated: 28 August 1985