Zimmermann, Lothar v Hodges, John

[1982] FCA 293

I N THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT	REGISTRY	)	No.	G122 o f	1 9 8 2
GENERAL DIVISION	)

BETWEEN :

LOTHAR ZIWERMANN and

BOGUSLAWA ZIblblERMANN

Appl icants

AND :

J O H N HODGES

Munster for Immiara t ion and

E t h n i c A f f a i r s

Respondent

J U D G E MAJCCNG ORDER: FITZGERALD J.

DATE OF ORDER:	13 DECEMBER 1982
WHERE MADE :	BRISBANE
THE COURT ORDERS THAT:

1. The Minis te r for Immigra t ion and Ethnlc Affa i r s

a . make a dec i s ion upon t he app l i ca t ion con tamed

i n t h e a p p l i c a n t s ’ le t ter t o him of 3 December 1982,

having regard t o t h e c o n t e n t s o f t h a t le t ter and

t h e a f f i d a v i t s f i l e d	i n these p roceed ings , w i th in
seven days.

2 . P roceed ings ad jou rned gene ra l ly t o be r e s to red

upon s h o r t notice a f t e r t h e Minis ter’s d e c l s i o n

has been made.

3. Costs r e se rved .

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) No. G122 of 1982
GENERAL DIVISION	1

BETWEEN :

LOTHAR ZIMMERMANN and

BOGUSLAWA ZII’II%3RMANN

Applicants

AND :

JOHN HODGES

Mlnister for Immiqration and	-
Ethnic Affairs

Respondent

FITZGERALD J. 1982 DECEMBER 13

EX TEMPORE REASONS FOR JUDGMENT

In the exceptional circumstances of this matter

I propose to take an unusual course.

- 4 - The applicants have contrlbuted to their present

predicament by entering Australia on the basis on which

they did, by not complying with restrictions imposed by

the law, and by their failure to take any step, even

though solicitors had been consulted, untll after

deportation orders had been made. The conduct of the

applicants cannot however fully explain the intransigence

of the Department, which	I do not presently propose	to
canvass I n detail.

The applicants’ attempt to have the deportatlon

orders set aside ralses questions of some difficulty. The

ultimate decision as to whether or not the appllcants

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should be deported or permitted to remain in Australia is,

of course, for the executive, not the court, which is

concerned to ensure that the law is obeyed in the

decision making process. It is an arid exercise to

deal with such questions where,	as here, they are largely
academic.

Although I would be prepared, if necessary, to

hear further argument to the contrary, it is, I think,

both correct and accepted by the applicants that there

would be no practical point in pursuing their attempt

to. have the existing deportation orders set aside if

the applications they have made by their solicitors'

letter of 3 December 1982 to the Minister are rejected

after due consideration. In so saying, I assume that

those who are advising the applicants have satisfied

tGemselves that the appropriate applications have been

made. The only qualifications to that proposition whxh

have occurred to me relate to whether or not, if the

applicants are deported, their babies should be deported

also, and whether or not, if the applicants are not to be

permitted to stay, they should be deported	or permitted
to depart voluntarily.

The Department - and in so saying I include

the Minister - has refused to consider the applications

made by letter of 3 December 1982. I cannot understand

the reason for that attitude any more than I can discover

3 .

any ~ustification for it in law: nor was counsel for

the respondents able to point to any legal basis. It

was not, for example, submitted that the applications

do not relate to matters committed for decision to the

Minister under the Act.

These are circumstances of genuine urgency about

this matter. There is little, if any, probabllity of

my dealing wlth the applications to review the deportation

order with reasons, or to provide my detailed reasons for

the orders which I am about to make, in the lmmediate future.

In the meantime, the deportation orders stand

although they have been stayed, and the applicants cannot

work to support themselves and their bables. Their

situation is uncertain and generally unsatisfactory.

I have no doubt that the appropriate course in the I .

circumstances is to order the relevant minister, o

whom the letter of 3 December 1982 was directed, to

make the decisions necessitated by the applications contained in that letter. He wlll have available to him the contents of that letter and the affidavits flled In

court in these proceedings and that is all that the

applicants require to be taken Into account in respect

of their applications.

In the circumstances, the decision should be

made withln seven days. I accordingly further adjourn

I .

4.

the proceedings generally wlth that order, with

costs reserved. The matter can be restored on

short notice after the minister's decislon has been

made.