Yo, L.G. v Minister for Immigration & Ethnic Affairs

[1986] FCA 99

Re: LI GUONG YO
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WA G22 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Muirhead J.

CATCHWORDS

Administrative Law - Judicial Review - deportation under Migration Act - deportation order suspended by Minister to enable applicant to marry - applicant Chinese citizen - proposed wife aboriginal person in far north - mother of applicant's son - marriage ceremony not performed for unavoidable reasons - later decision to deport - application for stay - natural justice considerations.

Administrative Decisions (Judicial Review) Act 1977, s.15

Freedom of Information Act 1982, s.18

Federal Court of Australia Act 1976

Migration Act 1958, s.23

Cases referred to:

Dallikavak v. Minister of State for Immigration and Ethnic Affairs (Unreported - Federal Court of Australia - 6 August 1985.)

Rifki v. Minister for Immigration and Ethnic Affairs 46 ALR 301

Piroglu v. Minister for Immigration and Ethnic Affairs (1981) ALD 323

Jason Kioa and Others v. Minister for Immigration and Ethnic Affairs and The Comnmonwealth of Australia (unreported - delivered 18 December 1985)

Thomson Australian Holdings Pty Ltd v. Trade Practices Commission (1981) 55 ALJR 614

HEARING

PERTH

#DATE 14:3:1986

ORDER

1. Execution of the deportation order is stayed until further order.

2. The application for review will be adjourned for hearing on 16 April next at 10.15 a.m.

3. The parties to be at liberty to file such affidavits as they may be advised, such affidavits, if any, to be filed and served upon the solicitor for the other party on or before 11 April next.

4. Costs reserved.

5. Liberty to apply.

Note: Settlement and entry of orders is dealt

with in Order 36 of the Federal Court Rules.

(See also Order 37 rule 2(3).)

JUDGE1

The applicant seeks judicial review of a decision of the Minister made on the 24th December 1985 ordering deportation of the applicant, execution of which was delayed for some time, and review of a decision made on about 6th March last to put the deportation order into effect.

1. As a matter of urgency and without documentation the applicant sought to restrain the Minister from carrying the deportation into effect. This application was heard by Toohey J. on 7th March when his Honour ordered that deportation be stayed, that an application for review be filed and that the matter be adjourned until 13th March. Yesterday I heard further argument, the application being for a further stay. Reasons for decision under s.13 of the Administrative Decisions (Judicial Review) Act 1977 have been sought but such reasons are not yet to hand. Application has also been made under the Freedom of Information Act for release of material upon which the decision was based but that has not as yet been discovered.

2. A brief background will suffice. The applicant, who hails from China entered Australia in 1982 and he was granted a temporary entry permit valid until 24th April 1983. No further permit has been granted, he has been a prohibited non-citizen since that date and thus subject to deportation. He failed to leave Australia and in June 1985 voluntarily visited the department in Sydney. He did not then seek to apply for any change of status and the department understood he wished to return to China. His passport was taken and he was released on reporting conditions which he did not comply with. The department lost track of him until he was located at Kununurra in W.A. and he was taken into custody early in December last. It appears he then indicated he wished to marry an aboriginal girl at Kalumburu - a remote community in the North West - who has born him a child. He had been working as a cook at Kununurra, employment which is still open to him, and it was apparently by reason of an enquiry by his employer to the Department made on the applicant's behalf that his whereabouts were discovered.

3. Solicitors were instructed after his apprehension. It suffices to say that there is evidence that the proposed marriage is genuine. His intended wife Matilda Djanghara is of the Catholic faith and difficulties of communication, statutory requirements of notice of intended marriage and certain requirements of the priest who it is hoped will perform the marriage, have served to delay the marriage.

4. On 17th December 1985 his solicitor wrote to the Regional Director in Perth advising of the applicant's intention to apply for a temporary entry permit, to allow him to pursue an application for change of status and to pursue an application for resident status under s.6A(1)(b) of the Act and under the "labour shortage" category. A considerable body of material was then sent to the Minister, which is not before me at this stage. The letter referred to "compassionate and humanitarian grounds" based on his intended marriage and the fact that he has a son who is an Australian citizen.

5. On 20th December last an application for a further temporary entry permit and for an entry permit as a permanent resident, based on compassionate and humanitarian grounds s.6A(1)(a)- was lodged but was not accepted by the department as a further document required completion. On 30th December the applicant's solicitor was advised the deportation order had been signed on Christmas eve and later on 8th January last he was informed that administrative steps had been completed to return the applicant to China on 12th January. On 10th January following representations to the Minister he stayed the decision for one month to enable the applicant to marry his fiancee. On 17th January the applicant was released from custody subject to reporting conditions in Perth.

6. I am satisfied that the applicant's solicitor who is familiar with the outback region in question, has since done everything practical to bring about the ceremony. He has sought more time without success. Difficulties imposed by the applicant being in custody for some of the time, the necessity of the marriage taking place in the North, consideration of the views of aboriginal kin, the requirements of one month's notice of intended marriage, the necessity of the church being satisfied that the applicant understood certain religous precepts or the nature of marriage in the eyes of the Church and inability at times to make contact by radio telephone made it virtually impossible to arrange for the ceremony to take place within the period contemplated by the Minister when he allowed a 30 day suspension. It was certainly not due to the default of the applicant nor to the lack of effort on the part of his advisers. The difficulties are documented in the affidavit of Stephen Walker (the applicant's solicitor)filed on 11 March. On the 7 March Mr Walker was informed that the Minister had decided to execute the deportation. His client was in custody and it was then planned to fly him to Sydney that night for deportation. On the same day Mr Walker received a letter from the department's Regional Director, in the following terms:
   
   

"Dear Sir

LI GUO YONG

I refer to your letter of 28 February 1986.

I am writing to confirm that the Minister for

Immigration and Ethnic Affairs has reviewed all matters that have transpired since Mr Li was ordered deported

on 24 December 1985.

In the absence of Mr Li's compliance with conditions as set out in my latter of 27 February 1986, the Minister has directed that Mr Li be deported on the first

available flight. Steps are being taken to effect the Minister's decision.

I have attached for your information copies of

deportation passage and maintenance costs which Mr Li

has incurred and is liable to pay.

The brochure omitted from my correspondence of 27

February 1986 is also enclosed.

Yours faithfully"

1. The Regional Director was informed by Mr Walker that the marriage arrangements were by then in hand and sources from which this could be confirmed were indicated. But he was advised that as the Minister had made his decision it was too late to take the matter further. Hence the urgent application to the court soon after.

2. By virtue of an amendment to the application which I permitted, the application before me is to "review the decision of the respondent made on the 24th day of December 1985 to deport the applicant from Australia and his further decision made on 6th or 7th days of March 1986 to execute his decision of 24th December 1985". Whether the latter decision is reviewable may be a matter of debate as indeed may be the power of the Minister to suspend a deportation order. (See Dallikavak v. Minister of State for Immigration and Ethnic Affairs (Unreported - Federal Court of Australia - 6 August 1985.) But that suspension is part of the history and I am satisfied of this Court's jurisdiction to review the deportation order itself. The matter is one of urgency and I am not now asked to make final orders. This court has power under s.15 of the Judicial Review Act to suspend the operation of a decision and to order a stay of proceedings under that decision. In Rifki v. Minister for Immigration and Ethnic Affairs 46 ALR 301 Toohey J. considered also the general powers of the Court under s.23 of the Federal Court of Australia Act 1976 "in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders .... as the Court thinks appropriate", and he agreed with earlier decisions of this court that in a case such as this the Judicial Review Act may not be the sole source of power. (See also Piroglu v. Minister for Immigration and Ethnic Affairs (1981) 4 ALD 323.) Miss Francas on behalf of the Minister has referred to the nature of the power granted to the Minister under s.18 of the Migration Act 1958, unfettered by statutory criteria, and she has stressed that the Minister's decision was made after information was in his hands concerning the applicant's paternity of a child and of his aspirations for marriage. She categorises the applicant's situation as "hopeless" and submits that his deportation is inevitable. But of course hope burns eternal and in the affairs of men (and courts) few things are certain. The odds may be weighed against the applicant but I bear in mind the earlier suspension of the Minister's deportation order, apparently to enable the marriage to take place, the strenuous, albeit unsuccessful efforts to achieve the marriage within the narrow time limits, and the applicant's paternity of a child of Australian citizenship. Under our system of justice expediency will seldom oust principles of natural justice, including procedural fairness. I am persuaded, assuming I must be guided by principles appropriate to interlocutory injunctions that there is a serious question to be tried. And here "the balance of convenience" a rather inappropriate phrase in the present circumstances is weighed heavily in favour of the applicant. This court is able to grant a relatively early date to consider the substantive application. By then the reasons for decision under the Judicial Review Act will probably be to hand and this court will be in a position to determine the issue unfettered by the haste which has attended this application to date.

3. Neither the public interest nor the Minister's administration of the Migration Act is likely to suffer by reason of a short delay before substantive consideration of the application. The rights, interests and status of the woman the applicant seeks to marry and those of her son must not be overlooked.

4. I would prefer to base my decision on principles of procedural fairness or natural justice. The High Court in Jason Kioa and Others v. Minister for Immigration and Ethnic Affairs and The Commonwealth of Australia (unreported - delivered 18 December 1985) emphasised that the Minister in reaching a decision as to deportation should when circumstances permit have regard to the person whose interests are affected and should give such person the opportunity not only of knowing the basis of the decision, but if appropriate of replying to material in the Minister's hands which may be prejudicial. This court became vested with the matter under conditions of urgency. I am persuaded that all practical steps were taken, by the applicant's solicitor during the earlier suspension of the Minister's order to bring about the marriage ceremony which the suspension was designed to facilitate. It also appears probable that factors which the applicant could not avoid prevented the marriage taking place according to the rites of the Church. It would be a hollow exercise in these circumstances to bring the stay to an end and thus to deny to the applicant the opportunity of review. At this stage the court itself, due to logistic problems, and in the absence of therequested reasons for decision and the material upon which it was based, is unable to finally determine the application following appropriate hearing and argument. If I do not order a further stay the order would, to use the words of Fitzgerald J. in Thomson Australian Holdings Pty Ltd v. Trade Practices Commission (1981) 55 ALJR 614 "render nugatory any entitlement in the applicant to the substantive relief claimed and to any grant to the applicant of that relief". I say that as the applicant would, no doubt, be sent quickly beyond our shores.

5. I order as follows:
   
   1. Execution of the deportation order is hereby stayed until
   

further order.

1. The application for review will be adjourned for hearing on

16 April next at 10.15 a.m.

1. The parties to be at liberty to file such affidavits as they

may be advised, such affidavits, if any, to be filed and served upon the solicitor for the other party on or before 11 April next.

1. Costs reserved.

1. Liberty to apply.