GENEZAL DIVISION EX TEMPOR (I ic Coram: 21 May 1984 HIS HCNOUR: sought by GMENT Smithers J. we wee wen be co ta QO ty ry to ro ts by] u xlp Sm to lei NG) et} -43002 ole f t ney ie) o a "9 Qo i] n 2. respondent made under the Migration Act 1958 (the Act). On 15 May Justice kK are entitle notice of inclucing: - (a) that Tail (i) £ acplication was dismissea by Mr. issal th wm il applicants oO Ww ¢. rh 9 nm fu fo a wn ce ct ps iy ct AQ r wn They have filed a appeal setting out a number of grounds . The Minister and/or his dslegate failed ta balance ofr properly balance the requirements of the pxrcvisions of the Migration Act 1958 and the Human Pizhts Commission Act 1931 and the Schedules thereto in making the Ceacision to devort Deportation or the First and Secondnamed Appellants would inevitebly either senoarate nec Irom mer fanily zn weet raceanticr Ar "he overant anrz rea Ci ii) (iv) (wv) 3. Declaration set the Human Pights The Minister in exercising pewer toa deport under the Miagration Act 1958 must do so in a manner which conforms to and is consistent with the Covenant and the The Minister in the eresent case couche a im fi nn a t 4 ta na is]qa oO ra) 1D Ts! is) % qt only to have mad where there wi (b re exceptional and compelling circumstances that warrantec ys non-comoliance with tne Covenant ana t —} re Declaration; The Minister and/or nis delegate had failed to observe the principle r D) ip) Natural justice in making the decision to devort; The Minister was obliged to pertorm his auties and exercise nis powers in conformity with the wrovisions cI the Declaration anc tne Covenant; tn wie) 1) i0 4. circumstances no cevortation which affects the rights and/or legitr expectations cf an australian cit should be occered. (bd) that the learned Judce erred in law in concluding that: (1) bre iecrrtaticn not FA deoortation ar the cniia nouwithstanding that the inevitable deportation; (ii) the delegate took into account all - relevant matters concernin the child because he stated as a relevant -fact that the child was rs "born on + Novenber 1982 an Australia and -.» is thus an im Australian citizen". {iii} the decisicn of the Minister did not conform with and was contrary to Article 23 of the said Covenant t, & anc 7 oF the 2 fay in rn) Ga ~ fu ty fu at iv] a is ¢ fa ct ao SsiT) a iv3 ip we Fra -aS Minister gave no weight to or failed cto give sufficient weight to or dia not consicer the said Article and the said Principles. the pecerai judgment aprealed Fron unless tha ccurt 23 ancecis. There 18 authority for the xcropositicon that the court should direct a stay oniy in special circumstances, Such circumstances are said to exist where in the absence of a stay the anoceal would be randered nugatory - see the jucaament of Cottcn L.J. in Wilson 7. Church (No. 2) (1879) 12 Ch D454. It was also said by Adam J. in Scarborouch v. Lew's dgunction Stores Pty. Limited C1963] VR 129, that the appropriate test of exceptional c1lrcumstances or of circumstances requiring the crantiny of a stay is whether or not in the absences of a stay a real risk that the appellant would lase the fruits of his appeal if it were to succeed. It appears to me that it must be appropriate to crant 4 stay where there is such a cisk and particularly so when the subject matter of the stav consists of the whereabout of the bodies of certain serscens 'no are living in this country ana woullt tne stay think the answer 15 1n the affirmative. The first and second applicants became srohibited non-citizens on & for its own sake or possibly as a step towards the grant ct o f wD n b+ A tu rs fal o d of a permanent entry permit. The deisga' to issue a temporary entry permit, and refused to grant a permanent entry permit hecause the first and second applicants were not holders of a temporary entry permit. It was, nevertheless, considered by the delegate that if sutficient compassionate grounds, referred to in w 't s.-GA(1}(e) of the Act, were present t& would be possible lawiuliy to qrant @ temporary entry permit ana so renove ua) the disability created by s.6A(1). The delegate did not accept that sutiicient 'compassionate grounds were present and rejectes the asplication for a further entcy permit, temporary or vermanent. The learned Judge yejected the attack urcn that decisicn. Accordingly, the first and second applicants remain prohibited nen-c1tizens and sunpjecct ta ba deported forthwith pursuant to the order aizreacy mace b7 Tt applicant. as a result, they will 5&2 cut of Australia applicants on appear to be an order to the Minister to re-consider the application for the grant of a temporary entry permit. On such consideration the applicants would still he outside of Australia. The first and second applicants would be persons lawfully dsvorted From Australia. [It would appear that their ahsence and their continurnd status as lawfully devorted persons would add difficulty to the re-consideration er there applications for temporary entry vermits not existing when their applications were dealt with en 11 Wovember 1993. The fact that the family's circumstances had actually been disrupted and the parties were actually out of Australia th rom a discretionary We u c fan roy o aG po a Se [0]fon oO ts fs) a ra3 QO m ' i a # q fs expression of willingness to grant seth a permit as at a the data of the re-considerario Tt could wel u w ct ey +0 n rp ct ¢ @ is] pt: [s)mo te ta oO rs) oO 1s Q oOu ct % Cc Q ct iH ie} ba of s.6 and s.6A(1) that a grant at of the first or second épplicants permit would not be a crant to a persian "after his entry to Australia" or "upon his arrival im Australia" within the meaning of these sections. yeconsideration after deportation will have little legal significance. Both counsel incéicat] chat re-entry te ayer occur, would be by travel to Australia upon a visa issued in accordance with section ila cf the Act. It would be necessary for them to apoly For an entry vermit on arrival by yréeferenze <t> The chen existing, and in resssert cl wnitn an ister which cay re made in this appeal woulda nse be . It is my view, therefore, that there 2s a real risk that in.default of the stay of a Ceportaticon oracer the fruits ot a successful appeal would be lest. The jurisdiction of the court to grant a stay is not cemtested. From tne paint of view of halance of conveniermce I have no doukt that the considerations are all one war. To my mind, the mere fact that the cefusai of a szay will subject 4 settled family to being unrooted country while an appeal is pending. in itseli, 1s 2 potent reason fer ai stay. Because of the Gelay in informing tha first applicant that he would not bs qgrantec a temporary extension of his sermit in respect of which the applicants are not shown to bre culpable, a consequence was cnat the family he developes comnections in and «as tiL:restrle in Asstrcalia which are he ty fu w ft) 'O 7 os _~ ioenificars (a) al 10. Removal to Tonqda wili bea An apeeai can ns doubt be concluced in <9 or three months at most. flo harm will come to Australia 1f they stay here that mucn longer. Apart from their continued stay in Austcalia without lawful gustification, no criticism is made that they are not law abiding reasonable people. right. I am unable to say that the appeal will not succeed and I am mindful of the words: of Megarry J. in Erinford Properties Limited v. Ches C19741 Ch D 261 as ce the possibility of judges on appeal taking different views from those which have been expressed by the trial judgs. The appeal does raise the problem associated with the existence of an Australian citizen wko is a young child of parents whose desarture is in preseect. It has deen te @ taken fer grantec that the child wilt accompany t a) wo Le] i) a m fmatbfu by w mM iD 1g e) 1S a ib ft . te cr | th '| ty lW- am ra wD rt rp) jy er co ; th fi [O) fu il. Australian citizen, but it would be important to know in what respect tract fact was thoughe co ne Sf significance. ic might well be thought tnact ne oer an Australian citizen who is gsuriect Te aecortaticn. Tt was aroused that in fact the fsrcortatron cl tne parents operates as a deccrtaticn oF che chiid, for aspect has not been given consideration. or. if that is not so, no consideration has been given as to the right oft the chile to remain in Australia anc, in particular, the affect upon her interests if the mother and father are taken from it, or indeed, tne effect on the child's interests if, as forced to accompany them to Tonga. None of thease matters are specizicalily dealt wich in the réasams cr the deleaate. From the terms of the reasons or the delegate one would unfer that consideration was not given to tne separate comtinuea residence here, and the velevance cf those meatrar -A rhs mrs sera c tern "= t= we form-<¢ Tae TRLTERS zo or) AevscTaclLin st ~l= fFarencs. -27 unnaturally, pernaps, the view was taken that the cnila was young and depnensant cn its warents, that 1t must After all, the child is an innocent perty and recard must be had to its ricghts 425 an indivicual citizen with a a right to stay in chis country and its rights of support against its parents. as was pointed out in Smith's Cas2 (supra) the fact that a child has been born in this country and that her ricohts, interests and prospects may be aftirectéd by the cerperteation cz parents 15 a2 matter that must be considered and werchec together with all relevant circumstances. In this case there is no evidence that the child was deliberateli; brought unto the world with the Act im mind. [In fact, the contrary would seem =9 be the case. 13. and I set out what it provides:- . "Wherea 1t is Gésirable that the laws cf the : Commonwealth and the conduct of persons administering those laws should conform with the provisions cf the International Covenant cn Civil and Political Rights, che CTeclarsticn of the Rights of the Child, the Declaration on tne Rights of Mentally Retarded Persons an eke Declaration on the Rights of Disablsd Persoms anc oather international instruments relating tc human cichts and freedoms." MaMONIST hs oysvizicns ip The itsvenant is a cectlarztiicic of princivis that tne famiiy is the naturai ani fundamental qroup unit of society and is entitled to protection by society and the State fArcicle 23), also, Every child shall have ... th wo quired 5b te] ao protection 25 are the part of his f fu =] 24). These principles are referred to in the deleqate's the Declarations resides in it by tomaturity, Py including proper not discusseé cr of the Richts ai the chiid ily, saciety and the State (Article reasons. [I also refer to which tts physical and mental satecuerds a care, rotection. I refer to ie)ct oa D ie] b He Hn p. s Mo £2 fa js Ns e separate consideration 15 ideration would "5o a (o> by A un c C1 Pa) wp n Ooia a is) ct ph t $= o un cd | ee oO rs % a [tt] ct pyr ny) ty Q not to deport the The best interests cf the child, nct as an Australian citizen, but as an Australian citicter who is a child, with social and educaticsral and benefits ian aAustraiiaz vinicn will residence here are certainiy relevanc. It is in the light - of a consideration cf those matters that it 1s necessary to consider what would be Icst to the child if It is 'said in this cass that the recttsl by Parliament is sufficient ta render relevant the thrust of the provisions of thé [rfternational 'Covenant and the Declaration of Rights. To ny Mind this 15 arquable. ff it is it adds weight and point, to those matters which, apart altcgether from the provisions of the Human Rights Commission Act 1981, require to be considered. x fu wu b=) Oo or uw fo i A. a ro) lou 1D s iv pe qt Q wt ig 1b ' 15. comprehensive discussion in the delegate's reasonings it is dafficuit to think that 1f the consideration of the interests of the child were given in the manner referrec to above, there would not be some clear reference thereto. Certainly, 1f the International Covenant and the Declaration of Rights of the Cnild are tc bs considered, reference to the fact, one would think, Yi dic r a ct a cns in som a a would have made its way into the if nar. It us therefore arquable that there are grounds upon which 16 1s reascnable to believe that the applicants may have success in the appeal. Having regacd to the foregoing it is my view that a stay of the deportation order should be granted. I order that costs be reserved. 1 I certify that this and the '& ° preceding pages are a true covy of + Reasons for Judgment herein of his Honor Mr. Justice Srl. | | | Str re nehoden Associats en ee ee