}HO IM THE _FEDERAL COURT OF AUSTRALTA VICTORIA DISTRICT REGISTRY VG No. 137 of 1984 GENERAL DIVISTON ww ew ev EX TEMPORE JUDGMENT BETWEEN: RATCO BALOV and A. ST. GEORGE <> fay 4 sally, (Applicants) Er = S Be, . T oy~ Go no\ [ey CA - Sir OS AND: THE HONOURABLE iy We Bet STEWART WEST, in al ns) his capacity as Pye IMMIGRATION AND ey ETHNIC AFFAIRS "M7 aa (Respondent) REASONS FOR JUDGMENT HIS HONOUR: I do not think it 1s necessary for me at this moment to deliver anything in the nature of a detailed judgment. I do feel, on the argument that serious questions are to be determined, and that there are certainly reasonable grounds for thinking that the applicant may establish his case for a review of the decisions to refuse an entry permit under s.6A(2) of the Migration Act 1958 (the Act) which will involve consideration arising under section 6A(1)(c} and (e) relating to the refugee status and the compassionate matters respectively. The view has been taken by the respondent that the decision under s.6A(1)(c) is not one under the Act and I. think that is a problem which needs to be addressed. Under s.6A(1)(e) the position has been taken that the review provision, referred to as review right IV, did not have to be brought to the notice of the applicant. In relation to the decision not to revoke, that decision seems to have been made on what 1s more or less an implied application for a revocation. But, there is a view that has been taken that a decision not to revoke would not be a decision under the Act and there is therefore no reason for the Minister to consider the implied application. But where an application for revocation is made and the Minister rejects it, it is dadifficult to say that that rejection is not a decision under the Act. These are serious questions and apparently time will be necessary for the preparation of the case for each side. The application has been directed to come on for hearing on 28 June 1984, The question then arises whether in the meantime this applicant should be released. It is quite true that he is a prohibited non-citizen and it is quite true that he broke a reporting condition of being at liberty for some & wee we were 8 3. five weeks. It is also true, however, that that episode was as aresult of the refusal of his application in respect of his being recognised as a refugee. And there seems to be little doubt that this applicant has an extreme apprehension of going back to Yugoslavia, the reality of which and the rationality of which is not for me to determine although it seems to be very real. And it was in that connection that he "disappeared". However, during the whole time of his disappearance he was in touch with the woman that he now wants to marry, every day. When he came back, he again made his presence very apparent by his performance in the telephone booth. That was no doubt irrational by ordinary standards. Then he was arrested and the authorities thought it was necessary to arrange that he serve his waiting time in Pentridge. Since then he has obviously settled down to some extent. The weight of psychiatric evidence appears to be that it is not beyond the bounds of possibility that he might commit suicide or attempt to if all hope of remaining in this country or in some similar country, certainly not Yugoslavia, was lost. On the other hand, I could not help but be impressed by the evidence this Court had in which Balov expressed the view that he now had real hope that he might succeed in further applications to the Minister through the medium perhaps of a successful 4. application on his current application for review. I cannot help believing that while there is such a hope he will not do himself any harm. There is no evidence that he has ever threatened or assaulted other persons and I think therefore that there is no danger of him doing anything of that kind. He has lived here now for quite a time and on the whole, as far as can be seen, he has behaved as a very satisfactory citizen. One cannot help feeling that this fear of going back to Yugoslavia is a very important element in this case requiring the deepest investigation. It cannot be denied that fear of being taken into custody by some secret security agency in a totalitarian country is something that nobody could face with equanimity and without the greatest fear. However, while that fear is suspended by some hope that he might succeed in his application here, 7 do not think there is any danger that he will commit suicide or that, certainly, there is no danger that he will injure any other citizen. Accordingly, I think he should be released upon terms that he report every second day to the nearest police establishment to the home of Ms. St. George and that he live at that home during the period that this case is waiting to come on and that Ms. St. George gives an 5. undertaking that if he leaves her immediately report that matter to the establishment. home she will nearest police IT ce . . + j | Se Penden oh To eu é DP yiqt kt 23 jsfey NE arte oe te = trent