Re Mahmoud Mohamad Hamwi v the Minister of Immigration and Ethnic Affairs [1986] FCA 3 (17 January 1986)

FEDERAL COURT OF AUSTRALIA

Re: MAHMOUD MOHAMAD HAMWI
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G12 of 1986
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

Administrative law - deportation order - application for stay of operation - whether an arguable case for upsetting the Minister's decision.

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

Migration Act 1958: s. 18.

HEARING

SYDNEY
17:1:1986

ORDER

The application for a stay of the deportation order made against the applicant on 6 January 1986 by the respondent be dismissed.

The costs of today's application for the stay be the respondent's costs in the proceedings.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an application to stay the operation of a deportation order made by the Delegate of the Minister for Immigration and Ethnic Affairs on 6 January 1986 against the applicant, Mahmoud Mohamad Hamwi. The applicant challenges two decisions: first, a decision made on or about 6 January 1986 rejecting the applicant's application for grant of resident status; second, the decision to deport the applicant to which I have just referred.

2. Various grounds of challenge to the decision have been the subject of submissions by counsel for the applicant and I shall deal with them in turn; but before doing so I shall say that the test to be applied in cases of this nature is in substance whether the applicant has established that there is an arguable case for upsetting the decision. It is common ground that this is the test although it may be expressed in various ways. It is not incumbent upon an applicant to lead evidence sufficient to establish to a court on the balance of probabilities that his case is correct; that is a matter which arises on a final hearing and not at this stage.

3. The applicant is a citizen of Lebanon. He was born there in 1963. He arrived in Australia in July 1983 and was granted a temporary entry permit valid for three months and endorsed "Employment prohibited". On 15 October 1983 he married an Australian citizen and lodged an application for permanent resident status on 21 October 1983. His application for resident status was rejected in July 1985 apparently because his marriage had by that stage broken down irretrievably. The applicant then appealed to the Immigration Review Panel but that appeal was unsuccessful and on 28 August 1985 he was directed to depart Australia within 28 days.

4. The applicant lodged a subsequent application for resident status on 18 December 1985 which appears to have been rejected on or about 6 January 1986 at or shortly before the time of the deportation order being made against him.

5. A submission was made to the Regional Director of the Department of Immigration and Ethnic Affairs in New South Wales and the Delegate of the Minister which in due course led the Delegate to make the deportation order under challenge. I need not refer to all the contents of that submission as it is very full and they have been the subject of addresses.

6. The first ground of attack made by the applicant on the decisions is that although the Delegate considered the fact that the applicant was married to an Australian citizen and that that marriage had broken down, and further, that he had formed an attachment with a lady who is a British subject though born in Cyprus, and whom he wishes to marry, the Delegate did not give any, or alternatively sufficient, consideration to consequences that might flow from the fact of the applicant's deportation in relation to his existing marriage or any other marriage which he may enter into in due course. I am not satisfied that these matters were relevant matters for the Delegate's consideration, and accordingly no arguable case has been made out on that account.

7. Then it is said the Delegate's attention was not drawn to the fact of the application made on 18 December 1985 by the applicant for resident status or further entry permit. The submission to the Delegate does in terms refer to an application, which I take it must be that application as it bears the same date and otherwise answers the description of it, and it is that application which was rejected on or about 6 January 1986.

8. I am not satisfied that this ground of attack on the deportation order has been made out or that it would constitute a ground of attack on the decision refusing him resident status. Indeed, so far as the deportation order is concerned, the application seems to have been expressly drawn to the Delegate's attention. Nor do I think it can be argued that the Delegate failed to give proper consideration to the fact of the application of 18 December 1985.

9. The applicant then advances as a ground of attack on the decisions, that if he returned to Lebanon he would be in fear of his life. There was material before the Minister that the applicant claimed that his family was involved in a feud with another family in Lebanon and because of this the life of the applicant would be in jeopardy if he were to return there. Also, due to earlier activities of the applicant he fears that members of the Syrian army may wish to kill him. It is not for this Court, of course, to say whether these fears are real, soundly based or groundless in whole or in part. The question is whether the Minister took relevant matters into account or not. Having perused all the relevant material, in particular the submission to the Delegate which led to the deportation order, I am not persuaded that he failed to take into account the facts relating to the applicant's safety to which I have referred or that he failed to give adequate consideration to them. It seems to me that he has not been shown to have erred, even in an arguable sense, in this area.

10. Then a further attack was made upon the decisions in question, but in particular relating to the deportation order, namely that in the submission to the Delegate it is said that some six matters weighed heavily against the applicant and that these should be considered by the Delegate when deciding whether to deport the applicant or not. Counsel for the applicant contended that no opportunity, or no adequate opportunity was given to the applicant to answer the allegations which lay at the foundation of those six matters.

11. Although no reference has been made to the recent decision of the High Court in Kioa's Case, 18 December 1985, unreported, I am content to assume for present purposes that this case falls within the principles enunciated in Kioa's Case, namely, that in certain circumstances, where factors personal to an applicant are taken into account by the decision-maker, the deporting authority is required to observe the rules of natural justice.

12. The first of the matters relied upon is the statement in the submission that the applicant worked without permission. That, of course, must mean he worked in Australia without permission. As I understand it, no challenge is made to the accuracy of the statement. No case has been made out of an arguable nature to establish that the delegate erred in paying regard to that statement, nor was it really suggested by counsel that it was a matter which could vitiate the deportation order by itself.

13. It is the other five matters to which I refer upon which reliance is placed. I should say that there is no evidence before me which would suggest an arguable case that any of them is wrong as a matter of fact. Indeed, in the case of some of them there is some evidence before me to suggest that they are more likely right than wrong.

14. It is stated in the submission that the applicant obtained a visitor's visa by providing false information overseas. This relates, amongst other things, to statements made before he obtained a visitor's visa that the applicant would not undertake employment while in Australia. I am not satisfied that this is a matter in respect of which there is any arguable case as to error of fact on the material before the Delegate.

15. Then it is said in the submission that the applicant avoided contact with the Department of Immigration following instructions to leave Australia. There is certainly no direct evidence to support that allegation but there is no evidence before me to suggest that the statement is in error. There is some evidence which would tend to suggest that there may be some truth in that statement, namely, the number of addresses that the applicant has had whilst in Australia. I attach no significance to that last statement, but it is not sufficient for an applicant to establish an arguable case to simply say that he may wish or does wish to refute the statements that are made; there must be some material to suggest that what was before the Minister was in error, and I do not find that it existed.

16. The statement is made in the submission that the applicant is a prohibited non-citizen of long standing, and that is a fact. Then it is said that the applicant has drawn upon government benefits in the form of social security payments from Medicare. That, too, would tend to appear to be the fact rather than not. Finally, it is said in the submission that the applicant has committed offences against Australian laws and assaulted officers of the Australian Protective Services. They are two separate matters.

17. First, it is said in the submission that the applicant was convicted in Australia of a narcotics offence on 29 November 1985 at Sydney Central Court where he was placed on a good behaviour bond for two years after entering into a recognizance of $200. It is not entirely clear to me whether the relevant offence was for possessing heroin or Indian hemp. There is before the Court a document, Exhibit 1, being a copy of a notice purporting to be issued by the relevant court which describes the offence as being one of possessing heroin. So on the evidence before me the statement in the submission would appear to be a correct statement of the offence. However, I do not propose to form a view one way or the other whether that statement is a mistake or not. I am content to assume that the relevant offence may have been a conviction for possessing heroin or it may have been a conviction for possessing Indian hemp. I am not persuaded that there is any arguable case that, whichever it be, the Delegate committed an error when making his deportation order. The fact that an offence in relation to drugs was committed is obviously a relevant matter for consideration.

18. As to the alleged assault of officers of the Australian Protective Services, all I know about it is that it is asserted that on 1 December 1985 the applicant assaulted an officer of the Australian Protective Services at the Villawood Detention Centre and was then transferred to the Metropolitan Remand Centre at Long Bay. I do not know whether that offence was or was not committed, but a statement to the effect that it was committed was before the Delegate when he made his decisions and I am not persuaded by the material before me that it is arguable that the statement was wrong. In all the circumstances I am not satisfied that an arguable case has been established sufficient to warrant the making of the order sought.

19. Accordingly the application for a stay of the deportation order is refused.

20. Before leaving the matter, however, I should just make reference to one point. Counsel for the applicant has said from the Bar table that because the lady with whom the applicant has now formed an attachment is of Cypriot origin and a British subject, it is possible that if the applicant is deported he need not be deported to Lebanon but may be deported, if suitable arrangements can be made, to Cyprus. This, of course, is solely a matter for the Minister and the Department of Immigration and Ethnic Affairs to consider. It does, of course, relate to humanitarian considerations which, no doubt, the Department will have well in mind.

21. The Court makes the following orders:-

1. That the application for a stay of the deportation order made
against the applicant by the respondent be dismissed.

2. That the costs of the application for the stay be the
respondent's costs in the proceedings.