Williams, H. v The Minister for Immigration and Ethnic Affairs

[1985] FCA 295

IN THE FEDERAL COURT OF AUSTRALIA 1

)

NEW SOUTH W E S REGISTRY No. G155 of 1985

)

GENERAL DIVISION )

BETWEEN:

HARRY WILLIAMS

Applicant

THE MINISTER FOR IMMIGRATION A D

ETHNIC AFFAIRS

Respondent

MINUTES OF ORDER

Judge making order:	Beaumont, J.
Date order made:	3 July 1985.
T4here made :	Sydney

THE COURT ORDERS THAT:

1. Order that proceedings on the deportation order

made in respect of the applicant on 19 June 1985 be stayed

up to and including 24 July 1985.

2 . Order that otherwise the application for a stay of

the said deportation order be refused.

3. Order that the costs of the stay appllcation be the

respondent's costs in the principal proceedings.

Note:

Settlement and entry of orders I s dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES	REGISTRY	1	No. G155 of 1985
)

GENERAL DIVISION 1

BETMEEN :

HARRY WILLIAMS

Applicant

THE MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

W: Beaumont, J.

DATED: 3 July 1985.

REASONS FOR JUDGMENT

The applicant, Mr. Harry Williams, seeks an interim

stay of an order for his deportation made on 19 June 1985 by

the Delegate of the Minlster for Immigratlon and Ethnic

Affairs. The stay is sought pendlng the final hearing of an

appllcation for ~udiclal review of the declsion to deport

the applicant made under the Administrative Declslons

(Judicial Review) Act, 1977 ("the Judicial Review Act").

Since the balance of convenlence must favour the applicant,

the fate of the interlm stay applicatlon depends upon

=hether the applicant can establish some arguable point of

law for the purposes of the principal proceedings, his

appllcation under the Judlclal Revlew Act.

The applicant, also known as Harry Singh, Harry

Miller and other aliases, was born in Fiji on 25 August

1954. He is a Fijian citizen and a prohibited non-citizen

pursuant to s.7(3) of the Mlqration Act, 1958, havlng

arrived in Australia on 12 July 1981 pursuant to a temporary

entry permit for a stay of three months. Two further

permlts were issued, the last expiring on 11 January 1982.

On 19 February 1985, the applicant married Nada

Sazdova, then a widow. She was born In Yugoslavia but	is
now an Australian citizen and resldent.

The deportation order now challenged, made pursuant

to 5.18 of the Misration Act, was recommended in a

departmental report dated 19 June 1985. The report

contained a detailed history of the personal circumstances

of the appllcant. Particular attention was glven to the

circumstances surrounding the applicant's marrlage.

Reference was made to the posslbillty of the appllcant

seeklng to regularise his status pursuant to s.6A(1) of the

Miaration Act. The view was expressed that, although the

appllcant was prima facle eligible for the grant of a

permanent resldence entry permlt pursuant to that provlslon

by reason of his marrlage to an Australian citizen (see

s.GA(l)(b)), havmg regard to departmental policy, such an

applxatlon was unllkely to be approved.

3 .

The respondent also considered representations made

by the applicant's solicitors in letters written in May

1985, dealing, in particular, with the applicant's marriage.

In this context, reference was made to observations of a

departmental officer that the accounts given by the parties

of the relationship "contained numerous gross discrepancies"

and that "the genuineness of the marriage must be in doubt

let alone that (it) 1 s an on-going one". Mention was also

made of the fact that the applicant had obtained employment

(as a labourer) in this country without permission from the

Department. The report made the following assessment of the

applicant's positlon:

"Mr William (sic) is a prohibited

non-cltizen. He has commltted offences in

becoming so and by working wlthout written

permission of an authorized officer.

Mr William prima facie is eligible for the

grant of a resident permit under Section

6A(l)(b) of the Migratlon Act on the

grounds of marriage to an Australian

resident. Contradictory information as

indicated above has been given by the

parties closely involved wlth Mr William.

Thls information has concerned the

circumstances of meeting and activities

during their courtshlp, receipt of soclal

security benefits and places and periods

of cohabitation.

Soon after Mr William's arrest, the

Department obtained details his of

marriage. The informatlon provlded by Mr

Willlam, his wife and his sister was

conflicting In major details with respect

to the marital relationship partlcularly

the aspect of co-habitation.

4.

Subsequently William's Mr solicitors

provided fresh information and stated that

their earlier details given to the

Department was 'both incomplete and in

some areas erroneous'. The solicitor

states that there is no evidence to

suggest that Harry William and Pratim

Singh (Lata) live together in a de facto

relationshlp.

Should you accept that no recent

relatlonship existed between Mr William

and MS Singh (Lata), you are invited to

conslder whether the bona fides of the

marital relationship correctly was

portrayed in interviews on 7/5/85 and

8/5/85 with Mr William, his wife and his

sister in which case grant of residence

under section 6A(l)(b) of the Migration

would n t Act be appropriate.

Alternatively, you may decide to adopt the

subsequent details provlded the by

solicitor on behalf of his client and

decide to accept the relationship as

genuine and ongoing.

Mr William has used several aliases and addresses to conceal his true identity and

normal place of residence. He wishes to

remain in Australia and is not planning to

depart voluntarily.

Although it remains possible for his

status to be regularized by the grant of a

further TEP bearing in mind the policy as

it stands and taking into account the

circumstances of Mr William as related

above, you may decide to sign a new order

for . . . deportatlon . . . . I'

The grounds of the application for ludicial review

are, first, that the Mlnlster, by his Delegate. failed to

take into account certain matters ghich, in law, he should

have taken into account (see the Judicial Review Act,

~.5(l)(e) and (2)(b)). These matters are said to be as

follows (I quote from the application for an order of review

flled on 26 June 1985):

5.

“1. The Applicant is married to Nada

Williams who is a permanent resident of

Australia and has been since 17th July

1970.

2 . The effect of the decision is to

separate the Applicant from his wife.

3 . The Applicant will be denied the right

to have his proposed application for

change of status to that of a permanent

resident of Australia heard and determined

andlor reviewed.

4. Alternatively, insofar the as

Applicant‘s olicitor’s letter to the

Respondent is to be taken as and was taken

as an application for change of status by the Respondent, the Applicant will be denied the right to have such decision

reviewed.

5. The Applicant is eligible for resident

status pursuant o the provisions of

s.6A(l)(b) of the Migration Act and wlshes

to reside in Australia with his wife.

6. The separation of the Applicant from

his wife has caused and will further cause

both the Applicant and his wife to suffer

emotional upset and financial hardship.“

Even if it be assumed for the purposes of the

argument that the Delegate was bound in law to take each of these matters In account, I am not persuaded that he falled to do so. The departmental report canvassed these questlons

in some depth and, on the material present available,	it is
only reasonable to infer that the Delegate perused the report before making the deportation order.

6.

Of course, the objective truth or otherwise of the

facts asserted In the report is not a material consideration

for present purposes. The question which now arises for

determination is the identification of the matters to which

the Delegate had regard in deciding whether or not to deport

the applicant. Moreover, the weight to be given to a

partlcular conslderation is entirely within the discretion

of the Munster or his Delegate: in the process of

balancing the private interest of the applicant against the

public interest in the regular administration of the

immigration laws, the Minister or his Delegate may give

consideration to particular a matter urged in the

applicant's favour but may decide that it is of little

weight and thus dismiss it from his ultimate consideration.

Nonetheless, in legal terms, the Delegate has taken the

matter into account and no error of law has arisen. In

particular, ~udicial review is not available for the purpose of reviewing questions of fact determined adversely to the applicant. In truth what the applicant now seeks is a

reversal of the findings as to the genuineness of his

marriage made m the departmental report. But, m the

absence of some legal flaw In this regard, and none has yet

emerged, ~udicial review is not available.

I re~ect the applicant's first submission.

7.

Then the applicant says that he has been denied

natural justice (Judicial Review Act, s.5(l)(a)) In that

neither he nor his wife was given an adequate opportunity to

be heard. There are formldable difficulties confronting the

applicant on this branch of the case. In the first place,

in the absence of any speclal clrcumstances (and none were

here demonstrated) the rules of natural justice do not run

under s.18 of the Miqratlon Act (see Karunakaran v.

Minister, Full Federal Court, unreported, 22 February 1985;

The Minister v. Arslan (1984) 55 A.L.R. 361 at p.365). But,

in any event, I am not persuaded that the applicant was

denied any reasonable opportunity to be heard: hi S

representations were fully dealt with in the departmental

report.

It should be noted that a suggestion was made in

argument that the applicant's wife was at some disadvantage

In the interviews conducted by the Department in terms of

language difflculties she was said to suffer. No attempt

was made to call the applicant or his wlfe to establlsh this

or, indeed, any other matter. Instead, asolicltor's

affidavit was relied upon. In the circumstances, I cannot

be satisfied of any prejudice on this account, even if it

were a relevant conslderation.

I re~ect the applicant's second argument.

.. . . .

Although it follows that no case has been made at

thls stage for a stay, it should be noted that the matter

came forward at short notice and it is possible that with

the benefit of more time for preparation, the applicant may be able to adduce further evidence to justify the grant of

an interim stay. Moreover, apart from renewing this

application, In the unlikely event that the applicant

uncovers some fresh evidence, the applicant may wish to seek

leave to appeal from this decision or to seek an expedited

final hearlng of the application under the Judicial Review

U. It I s hardly necessary to say that I am not to be

thought to be encouraging any of these courses of action.

But, to cater for the contingency that any of them might

happen, it is appropriate that a stay of 21 days should be

granted. Otherwise, the stay applicatlon should be refused.

I make the followlnq orders:

1. Order that proceedings on the deportation order

made in respect of the applicant on 19 June 1985 be stayed

up to and includlng 24 July 1985.

2. Order that otherwise the application for a stay of

the said deportation order be refused.

3 . Order that the costs of the stay appllcatlon be the

respondtnt’s costs In the prlncipal proceedlngs.

Assoclate