Waniewska, E. v Minister for Immigration & Ethnic Affairs

[1986] FCA 508

THE FEDERAL COmT OF AUSTRALIA 1

VICTORIA DISTRICT REGISTRY ) 1 VG No. 377 of 1986

GENFXAL DIVISION

M TEMFORE JUDGMENT

ELIZABETH WANIEEISKA

(Applicant)

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MINISTER FOR

i	I!.U.IIGIUTION dND
ETHNIC ~ F F ~ I R S C

!	\Respondent)
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Coram: Ryan J.

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- Date: 7 November 1986

i	EX TEMFORE REASONS FOR JUDGMENT
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l HIS HONOUR: This is the adjourned hearing of an application

!	for interlocutory relief	by way of an order restraining	i
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i the respondent, the Minister €or Immigration and Ethnic L

I	=fairs, from taking	any steps to implement an order
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made €or the deportatlon of the applicant until the

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determmation of this applicatlon or further order. By

i .	her application, the applicant contends that a decision
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taken by the Delegate of the respondent Minister to

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1 order that the applicant be deported should be reviewed

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on the qrounds that the applicant was denied natural

~ustice in the course of the making of the decision. in

that she gas glven no sufilcient opportunlt? to be

heard before the declslon was made.

B second ground relied on in the application is that . - I

the maklng of the decision was an improper exercise of

the power conferred by the Miqration Act 1958 in that

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irrelevant considerations were taken into account, 1 :

relevant considerations were not taken into account, or

the discretion reposed in the Mlnister was exercised in

accordance wlth a rule or policy without regard to the

merits of the applicant’s ca e. The final

sub-paragraph of ground 2 1s that the exercise of the

power by the delegate of the Minister was so

unreasonable that no reasonable person could have	so
exercised the power.

Both counsel who appeared before me accepted, at least

by implication, that the approach to be taken by the

court on an interlocutory application of this kind is

to enquire flrst whether the applicant has established

that there 1s a serious question to be tried, and if

satisfied as to the existence of such an issue, to

consider whether the balance of convenience favours the

grant of an interlocutory injunctlon. See Australian

- Cozrse Graiv Pool Ptv. Limited v. Barlev Marketlnq

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Board of Oueensland 57 U J R 425, vhlch was followed in

Tableland Peanuts Ptv. Limited v. Peanut Marketmq

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Board, 58 ALJR 283.

The first question to be tried as identified by Mr.

Tracey, who appeared for the applicant, was whether the

respondent had regard to material which militated to

the prejudice of the appllcant In clrcumstances in

which the applicant had no opportunity effectively to

reply to that materlal, or to rebut the adverse

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inferences drawn from It by the Delegate to the I- ,-

Minister. Reference was made to Kloa v. The Minister

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for Immiqration and Ethnic	a-falrs (1985) 62 ALR 321.	l '
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In particular, it was suggested that the Delegate to permanently in Australia, either before she came to

the Minister came to the conclusion that the applicant,

this country, or shortly thereafter. The presence or

absence of such an intention was a matter on which she

had no real opportunity to make submissions or to

adduce further evidence.

Mr. Downing for the Munster argued that Kioa's Case

had no application to the facts of the present case,

! which he submitted fell, rather, within the princlples

enunciated in Sinnathambv v. The Minister for

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Immiqration and Ethnic Affalrs, (1986) 66 ALR 502.

There, it was indicated, for example, by Fox J. at p.5OG that:

"In the present case, as hls Honour found,

the material which was prejudicial to the

appellant had been provided by the

appellant herself. In the circumstances,

I consider that the decision-maker was not

requlred to give the appellant a chance to

comment on the view that he had taken of

it; to do so would amount to a general

requirement that a decision-maker make

known in each case his view or evaluation

of the material that an applicant puts

forward: see Kioa per Brennan J at p.380.

His thought processes, if not unreasonably

I	based on evidence, or other material, are
a matter for him. I aqree with his Honour
that there was no denlal of natural
justice In thls respect."

Mr. Tracey, in reply, submitted that this case fell

somewhere between and Sinnathambv in the sense

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that the Delegate to the Minister had drawn certain

inferences, at least partly, he conceded as I

understood hln, from facts adduced in the first place

by the applicant herself. However, the question which

remains to be decided is whether the drawing of those

inferences was a matter upon which the applicant should

properly have been heard.

The second substantive ground relied on by the

applicant arose out of the way in which she was

interviewed by officers of the D partment of

Immigration and Ethnic Affairs on 16 October 1986. It i-

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was submitted that that interview was conducted in

circumstances which were disadvantageous to the

applicant, particularly, because the services of an

interpreter were avalled of by means of a telephone.

The interpreter was not present vhile Miss Wanlewska

was being intervlewed by the departmental officer.

The only evidence so far before the court of what

happened at that interview is that of Mr. Terlecki,

apparently a friend of the applicant, who deposed that

he speaks fluently both Polish and English and that the

applicant, "does not have a sufficient command of the

English language to enable her to be interviewed

without the assistance of an interpreter."

Mr. Terlecki has further deposed that during the course

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of the interview, he wished to raise objections

regat-dlng the accuracy of the translation by the

interpreter whose services were provided by telephone.

He instanced, wlthout complete particularity, some of

the matters In which the translation of the questions put to Miss Waniewska from English into Polish, and the

translation of her answers from Polish to English, was

deficient. Specifically, he deposed, "During the

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course of the interview, it became apparent to me that

the interpreter was confusing the tenses in which

various questions and answers were phrased."

It was further suggested in the course of Mr.

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Terlecki's affidavit, and developed in the course	of	..
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argument before me, that such confusion of tenses was

particularly significant as contributing to a

misunderstanding on the part of the departmental

officers concerned as to when it was that the

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applicant's mother had knowledge of the applicant's

involvement In a body called the "Society of Teachers

for Free Expression". That, it has been suggested, was

a proscribed society in Poland, and the applicant's

I	membership of it and the consequences which might
attach to such membership were she to return to Poland
were matters of real significance which should have
been taken into account by the Delegate of the Minister
ln processing Miss Waniewska' S application for the .. ..
status of a permanent resldent.

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Another ground relied on by Mr. Tracey was that the

Delegate to the Minister had taken the view that the

applicant had been guilty of what might be described as

"queue-jumping'' which, in itself, was a circumstance weighing, and perhaps conclusively, agalnst the grant

I of her application. The final ground relied on was

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that he decision was so unreasonable that no

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reasonable delegate could have come to it.

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I mlght say, xithout expressinu a final view on it that

the last ground does not commend itself to me. Had it

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stood alone, thls interlocutory application would not

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have succeeded. However, I am dlsposed, in the llmlted

tune which I have had to reflect on this matter, to

conclude that there is a serious question to be tried.

It is undesirable, in the circumstances, that I should

canvass the merits of that question any further or,

indeed, that I should identify which of the other

questions advanced by Mr. Tracey I consider fall into

the category of a serious question to be tried.

It is sufficient for the purposes of this interlocutory

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application that I find that at least one such question

exists, and I have been able, as I indlcated, to come to that conclusion. I xas urged by Mr. Downing, xho

appeared for the respondent Mlnlster, that even were I

to find a serious issue, I should nevertheless refuse

to extend the stay granted by Jenkinson S. on the

ground that no serious detriment or inconvenience would

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be visited on the applicant by such refusal. I was

referred in that context to the unreported judgment of Jenkinson S. in Sinqh v. Minister for Immiqration and

Ethnic Affairs which was delivered on 2 October 1986.

However, I regard the clrcumstances of that case as

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clearly distinguishable from those of the present

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applicant. I am disposed, rather, to accept Mr.

Tracey's submission that were the applicant to be

deported to Poland, the future resolution of the

questions between her and the respondent would become

academlc, and that her prospects of returning to this

country, should she succeed in her application for a

review of the adverse decision, would be illusory. On

the other hand, I do not consider that the

inconvenience which will be mflicted on the Minister

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by extendxng the stay of the operation of the

deportation order for the relatively short time needed

to dispose finally of the questions to which I have

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referred, is such that it carries enough weight to lead

me to dissolve the stay.	._
Accordingly, I propose to continue the stay which was

granted by Jenkinson J. on 30 October 1986 by ordering

that all proceedings under the decislon of the Delegate

to the Minister to carry into effect the deportation

order made on 27 October 1986 be stayed until 4.30 pm

on 20 November 1986 or further Grder. I direct that

the application be adjourned for final hearing and determination to 10.15 am on 19 November 1986 in Melbourne.

I direct that any further affidavlt or affidavits on

which the applicant seeks to rely be filed and served

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not later than 12 November 1966. 1 direct t-urther that

any answerlng affidavit or affidavits on behalf of the

respondent be filed and served not later than 17

November 13813.	.. .. i . I '
I was pressed by Mr. Tracey to order that the applicant be released from custody until the final hearing and

determination of her application, subject to

appropriate terms being imposed as to a place of

residence and a regime of reporting to officers of the

Department of Immigration and Ethnic Affairs. However,

in the circumstances, including the fact that the

applicant has in the past concealed her whereabouts

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from offlcers of the Department, I am not disposed to

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accede to that submlssion. I assume that adequate

opportunity can be given to the applicant while she

remains in custody to consult and fully to instruct her

legal advisers in the prosecution of her application. Should that expectation not be borne out, a further application can be made to thls court pursuant to the

general liberty to apply which I propose to reserve.

So the other direction which I make is that liberty be

reserved to each party to apply for further directions

in this matter as she or he may be advised. I propose

to reserve the costs of this applicatlon and otherwise,

as I indicated, the matter will be adjourned for Einal

hearing and determination to 13 November thls year.

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I certify that the

preceding nine ( 9 )

pages are a true

copy of the Reasons

for Judgment of the

Honourable Mr. Justice

Ryan.

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