Re Nga Huang v Keith Thomas Owen and Minister of Immigration Local Government and Ethnic Affairs [1989] FCA 20 (16 February 1989)

FEDERAL COURT OF AUSTRALIA

Re: NGA HUANG
And: KEITH THOMAS OWEN and MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND
ETHNIC AFFAIRS
No. VG32 of 1989
FED No. 96
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)

CATCHWORDS

Immigration - principles re stay of deportation order - necessity for deportee to show "some material to suggest an entitlement to relief"

Migration Act 1958 s. 6A(1)(b), s. 18

Aboriginal Development Commission v Ralkon Agricultural Co. Pty. Ltd. (1987) 74 ALR 505

Cooley v Minister for Immigration and Ethnic Affairs Pincus J. (Unreported - delivered 29 May 1987 No. Qld G 84 of 1987)

Pal v Minister for Immigration and Ethnic Affairs Keely J. (Unreported - delivered 6 June 1988 No. VG 207 of 1988)

HEARING

MELBOURNE
16:2:1989

Solicitor for Applicant : Alex Lewenberg & Associates

Counsel for Applicant : Mr. A. Cavanough

Solicitor for Respondent : Mr. R. Huttner, Australian

Government Solicitor

ORDER

The applicant's motion, dated 14 February 1989, be dismissed.

Costs be reserved.

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

DECISION

The applicant has moved for a stay of the operation of an order for her deportation on grounds that were amended by leave. The application was supported by two affidavits sworn by Mr. Alex Lewenberg, the principal of the firm of solicitors acting for her. He also gave oral evidence that the contents of those two affidavits were true and correct and was cross-examined by Mr. Huttner on behalf of the respondents (transcript 21 to 43).

2. In addition, evidence was given by Mr. Featherston, who described his position as that of a "senior investigation officer with the compliance area of" the respondent Minister's department. He was cross-examined by Mr. Cavanough, of counsel, on behalf of the applicant (transcript 6 to 18).

3. On the hearing of an application for a stay, it is unusual to have oral evidence with cross-examination and a conflict of evidence on matters relied upon by the applicant. However, that was the course followed by both parties and I have decided that, in the particular circumstances of this case, it is necessary to resolve that conflict of evidence. Having studied the affidavits, having heard the evidence, including the cross-examination of both witnesses, and having read overnight the transcript of all of their evidence, I have decided to accept Mr. Featherston's evidence where it conflicts with that of Mr. Lewenberg.

4. I specifically reject Mr. Lewenberg's evidence that on 11 November 1988 the "Magistrate declared that she had found that there was a genuine and ongoing marriage relationship between the applicant and her husband. She further commented that the department would be bound to come to the same view if it followed proper processes."

5. I also reject Mr. Lewenberg's affidavit evidence that on 4 November 1988 he "was informed by Mr. Featherstone (sic) that the proper course for the applicant to take was for the wife to return to Hong Kong and then lodge in Hong Kong Application to be reunited with her husband and then the matter could be settled on its merits (sic)."

6. Mr. Lewenberg's affidavit, sworn 14 February 1989, also contained statements as to what he believed on certain matters; for example, (1) he believed "the delegate may not have given proper consideration to the Applicant's case"; (2) he believed that the delegate "may have failed to take into account, properly or at all, the hardship to the Applicant and her husband which would be caused by deportation"; (3) he doubted "whether the delegate considered the Application on its merits as an Application under s. 6A(1)(b) of the Migration Act 1958"; and (4) that he "believed that the Applicant's Application for change of status would succeed. My belief was reinforced by the Magistrate's finding in her favour. After that finding was made, I did not contemplate for a moment that the Department would issue a deportation order without further reference to me and without giving me an opportunity to make further submissions on behalf of the Applicant as to any matters which may have continued to trouble the Department".

7. I understand Mr. Lewenberg's reference (in the first sentence in the quotation in (4)) to "the Magistrate's finding in her favour" to refer to his affidavit evidence, quoted earlier in these reasons, that the Magistrate "found that there was a genuine and ongoing marriage relationship between the Applicant and her husband" and that she (the Magistrate) "further commented that the Department would be bound to come to the same view if it followed proper processes". I have already rejected as untrue that evidence by Mr. Lewenberg as to what the Magistrate said.

8. I do not find it necessary to express any opinion as to whether Mr. Lewenberg in fact held the beliefs to which I have referred. If he did hold those beliefs, that fact would not be relevant to the present hearing. The material before the court does not support those beliefs and does not support the contentions that the delegate had failed to give proper consideration to the case or had failed to consider it on its merits (ground 1(c)) or had failed to take into account hardship to the applicant and her husband (ground 1(a)(i)).

9. Mr. Lewenberg's affidavit also contained the contention, expressed as his belief, that "the delegate did not give any consideration to the question of voluntary departure". The amended ground 1(a)(iii) stated that he "failed to consider properly or at all" that matter. The applicant's material failed to support that contention. In addition, the delegate expressly approved the recommendation in the departmental submission that he should refuse to permit voluntary departure by the applicant.

10. That departmental submission was tendered in evidence by the respondents; the applicant's counsel stated that he neither consented to nor opposed that tender. In my opinion, the departmental submission is evidence that the delegate made the decision set out on page 14 of the document (i.e. approved the "Recommendations" in paragraph 31) but it is not evidence that he adopted any or all of the background material; nor is it evidence that he adopted the "assessment" set out in paragraphs 20 - 30 of that departmental submission.

11. The delegate's reasons for decision are not before the court, and have not been supplied to the applicant. The recommendation that the delegate should not permit voluntary departure appeared in the departmental submission after a passage (paragraph 29) which was directed towards "the possibility of her voluntary departure as an alternative to deportation". The applicant has failed to establish grounds 1(a)(iii) and 2(c).

12. Ground 1(a)(i) also must fail; it relates to hardship, a matter which is expressly referred to in the departmental submission (paragraph 27). There is nothing in the material to suggest that the delegate failed to consider "hardship".

13. Ground 1(a)(ii), 1(b), 2(a) and 2(b) all relate to the applicant's claim that there was a genuine ongoing marriage relationship between her and her husband. In my opinion, on all of the material before him it was open to the delegate to reach the conclusion that the marriage was not a bona fide one. It was a matter for him to decide that question of fact. It is not a matter for this court to decide. The delegate was not obliged to accept as true all of the statements made by the applicant or her husband. He was entitled to take into account earlier statements by her and also her apparent lack of knowledge on various matters relating to her husband.

14. Under ground 1(c) it was contended that the delegate applied the whole of the policy statement on illegal migrants "without regard to the merits of the particular case". In opening his case for the applicant yesterday morning, Mr. Cavanough sought to rely on certain passages in Tang v Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177, in particular referring to passages at 182-3, 184 and 190. He asked the court to draw certain inferences as to what the delegate had taken into account. That contention was not abandoned today but it was not pressed as strongly as it was yesterday. I should add, in fairness to Mr. Cavanough, that that departmental submission was not before the court and not known to him at the time that he said yesterday that the strongest point in the present application was the one based upon Tang's case. The submission is not supported by the material and the inference cannot be drawn, having regard to the statements in the departmental submission in paragraph 23. I should perhaps add that I am referring there to the first paragraph numbered 23 i.e. the paragraph appearing immediately after paragraph 22 and not the next paragraph which is also numbered 23.

15. Mr. Cavanough strongly pressed the submission that, even if the court did not accept his first submission that there is a triable issue, it should act in accordance with the opinion expressed by Jenkinson J. in Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471 at 481:

"There will be occasions when the exercise
of the power is sought at a time when the
refusal (or the grant) of a stay will have
grave consequences, but it is impossible to
form any view as to whether there is such a
question to be tried. There will be cases
in which the prejudicial consequences for
the applicant of refusal of a stay (or for
the community of grant of a stay) are of a
kind or degree outside the contemplation of
those who framed the criteria governing the
grant of interlocutory injunctive relief in
litigation concerning proprietary and
contractual interests."

That passage was cited in Videto v Minister for Immigration and Ethnic Affairs (1985) 8 ALN 237 by Toohey J., who agreed with the criterion suggested in Perkins v Cuthill (1981) 52 FLR 236 at 238, namely, that the court must be satisfied that "reasons or circumstances exist which make it just that the court should make the order sought". The question of principle raised by Mr. Cavanough is one which I had to consider in Pal v Minister for Immigration and Ethnic Affairs (unreported - dated 6 June, 1988). In that decision, I said, referring to the passage quoted from Jenkinson J., that I was unable to envisage, with respect, reasons which would "make it just" that the court grant a stay (of a deportation order) at a time when "it is impossible to form any view as to whether there is such a question to be tried".

16. In my opinion the applicant, who is the subject of a deportation order and who seeks that that order be stayed under s. 15 of the Administrative Decisions (Judicial Review) Act 1977, must bring herself within the principle enunciated by the Full Court in Aboriginal Development Commission v Ralkon Agricultural Co. Pty. Ltd. (1987) 74 ALR 505 - a case which did not relate to a deportation order. In their judgment Forster, Woodward and Wilcox JJ., referred to a number of decisions, including those of Jenkinson J. in Dallikavak (supra) and of Toohey J. in Videto (supra), and said (at 509-510):

"However, applying the "serious question"
test, it is clear that the inquiry whether
there is a serious question to be tried
must be answered with reference to the
circumstances of the case. There may be
cases in which the facts are so clearly and
comprehensively established at the time of
the application for the interim order that
the court would conclude that the applicant
had no arguable case. At the opposite
extreme there may be cases in which the
applicant has had little opportunity to
ascertain the facts and to adduce evidence
but there is some material to suggest an
entitlement to relief. Upon further
investigation that material may turn out to
be capable of ready refutation or
explanation but, in the meantime, it may be
appropriate for the court to intervene.
Everything must depend upon the
circumstances of the case, including the
extent to which the applicant has had an
opportunity to present the facts to the
court and the consequences of granting or
of refusing relief. This is what was meant
by Woodward J. when, in Bullock (5 FCR 464
at 472) and in Jungpradit v Hurford (21
August 1985, unreported) he spoke of
considering together the two tests of
"serious question" and "balance of
convenience". The overriding principle is
that referred to by Dawson J. in Hayden (56
ALR 73 at 79) "that a court ought not to be
misled by an overstrict application of
verbal formulae to depart from its primary
duty to do complete justice in the cause"."

17. Applying that principle from the judgment of the Full Court to the present application, I am unable to conclude, on all the material before the court, that there is "some material to suggest an entitlement to relief". In my opinion, none of the grounds relied upon has been made out.

18. Mr. Huttner, on behalf of the respondents, has referred the court to the decision of Pincus J. in Cooley v Minister for Immigration and Ethnic Affairs (unreported - delivered 29 May 1987 in matter Queensland G84 of 1987). His Honour there said (at pages 4 and 5 of the typed copy) that the applicant's counsel, Mr. Brandis, had submitted:

"that if the applicant is deported, as is
intended, at 3 p.m. tomorrow, then by no
means can he challenge the decision. I do
not think that is correct. If a person
were unlawfully deported, he could still
challenge the decision. It is more correct
to say that if a person were unlawfully
ordered to be deported and the deportation
order were put into effect, it would become
inconvenient and expensive for him to
challenge the decision, perhaps so much so,
for the average citizen, as to make a
challenge quite impractical.
It is for the reasons of inconvenience and
expense that one might be discomforted by
the immediate carrying out of a
deportation order against the validity of
which nothing specific is urged, or can be
urged - no detailed reasons for it having
been given.
....
If Mr. Brandis' contention, which has some
attraction from a practical point of view,
were accepted, then the mere fact of the
making of an application for a stay, in
these cases where no reasons have been
given, must almost inevitably lead to the
exercise of the Minister's power being
overriden by the Court.
I do not think a proper construction of the
Administrative Decisions (Judicial Review)
Act 1977 could lead to that result. Nor do
I think, in general, that it is a proper
construction of the relevant statutes that
the Court should give a stay merely because
execution of the administrative decision
will, if the challenge to it is pursued,
lead to added inconvenience and expense for
the applicant."

I agree, with respect, with the opinions expressed by Pincus J. in those passages from his reasons for judgment.

19. It may be added that in my opinion it would not be a proper course for the court to grant a stay to enable the applicant to obtain and study a statement of reasons provided by the delegate under s. 13 of the Administrative Decisions (Judicial Review) Act 1977. In Gonaseelan v Minister for Immigration and Ethnic Affairs 7 ALN N168-169 Morling J. referred to the decision of Toohey J. in Rifki v Minister for Immigration and Ethnic Affairs (1983) 46 ALR 301 and expressed his opinion that Toohey J. had not there enunciated any principle "that the mere absence of reasons will in every case justify the granting of interlocutory relief". Morling J. refused to grant a stay "merely because a statement of reasons had not been given". That decision was cited and applied in Pal's case (supra).

20. It is fair to say that Mr. Cavanough has vigorously advocated every argument that could be put in support of the motion for a stay. He has placed reliance upon a number of cases, including decisions of the High Court in Murphy v Lush and Ors. [1986] HCA 37; (1986) 65 ALR 651, and in Osmond v Public Service Board [1986] HCA 7; (1986) 159 CLR 656 at 666. However, in my opinion those authorities, and the decision of Wilcox J. in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; 6 FCR 155, do not support his submission - because of the course of events before the present litigation was commenced. By that, I refer in particular to the failure of his instructing solicitor, to take the opportunity, which on my view of the evidence was plainly open to him, to put submissions to the respondent Minister or his delegate in support of the application for a change of status. Mr. Lewenberg's affidavit sworn 14 February 1989 stated that on 4 November 1988 he had "received a faxed letter from Mr. Featherston asking for any further representation to be lodged by 7 November 1988". He did not take advantage of that opportunity. In my view the applicant's difficulties in the present case stem, to a large extent, from her solicitor's failure to take that action and perhaps, to some extent, from his wrong view of what the Magistrate had in fact said on 11 November; his evidence as to that has been rejected.

21. The applicant has failed to show any triable issue as to any of the matters which have been raised on her behalf, and accordingly, in my opinion, it would not be proper to stay the operation of the decision. The applicant's motion, notice of which is dated 14 February 1989, must be dismissed.