to Alc] FURTHER DISTRIBUTION UNNECESSARY THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 331 of 1984 GENERAL DIVISION BETWEEN: S.L. WILLIAMS and OTHERS AND THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS 21 DECEMBER, 1984 KEELY J. ORAL REASONS FOR JUDGMENT Sate wy eee a HIS HONOUR: The applicants have lodged an application under section 5 of the Administrative Decisions (Judicial Review) Act to review what I see to be eight decisions made by the Minister of State for Immigration and Ethnic Affairs (The Respondent) and/or by his officers and/or by his delegates, including the making of deportation orders in respect of the first and second named applicants. The three applicants are persons aggrieved and they seek various orders including an order that the deportation orders are void or invalid. The applicants have taken out a notice of motion seeking orders that: 1. The operation of the decision of the respondent or his delegate made the 14th day of November that the first-named and second=named applicants be deported from Australia be stayed and suspended until further order. wilmin 21.12.84 38 amf jdr id ars . wf 2. All proceedings to deport the first-named and second-named applicants from Australia be stayed until further order. I accept that the harmful consequences to the applicants of a failure to make an order staying the orders of deportation would outweigh any harmful consequences to the respondent, if such a stay were granted, and that it may well be that the enforcement of the deportation orders would render nugatory any success by the applicants in the proceedings. However, as the full court said in Faingold and Others versus Zammit and Another, in an unreported decision on 20 January 1984, I quote from that decision at page 10: In our opinion it will be difficult for an applicant to show that reasons or circumstances exist-which make 1t just that the court should make the order sought unless it 1s demonstrated that the applicant has a point of substance to argue which, 1f successful, will result in judgment in his favour. There are two broad bases on which Mr Rose of Counsel for the applicants contends that there is "a point of substance to argue". The first is that the first-named applicant was the holder of an entry permit for some years. On the present state of the evidence, it is not entirely clear whether she was formally the holder of such an entry permit or whether she was simply permitted to reside in Australia with her mother. However, the respondent conceded that she had validly entered Australia in 1967 and remained here until 1972. Accordingly, for present purposes, I shall assume that she was the holder of a valid entry permit during that period. Mr Moshinsky of counsel, on behalf of the respondent, submitted that section 9(1) of the Migration Act 1958 operated to deprive the first-named applicant of any benefit for present purposes flowing from the holding of such a valid entry permit in those earlier years. Section 91 is in the following terms: Where a non-citizen who is the holder of an entry permit leaves Australia, the entry permit has no force or effect in relation to him upon-or after his re-entry into Australia. wilmin 21.12.84 39 e chf Ic daw aniare a) Notwithstanding the submissions to the contrary, put by Mr Rose, I accept Mr Moshinsky''s submission that the first-named applicant at the material time fell within the words of section 9(1): ~--- who is the holder of an entry permit leaves Australia ........ and accordingly that her entry permit had "no force or effect in relation to her upon or after her re-entry into Australia." It appears that since the period 1967 to 1972 the first-named applicant has, on three occasions, been granted an entry permit, each for a period of six months. Those permits were granted in 1974, 1975 and 1983 respectively. In my opinion, neither the material presently before the court, nor the submissions put on behalf of the applicant, -show any point of substance to be argued on this aspect. Secondly, Mr Rose relies upon a number of grounds, which are the same as or substantially the same as the grounds rejected by this court in Kioa versus the Minister for Ethnic Affairs 1984 53 Australian Law Reports 658. An appeal from that decision was dismissed unanimously by a full court on 3 October 1984. See also a decision of another full court in Smith versus the Minister, reported in 1984 53 Australian Law Reports 551. Mr Rose has sought to rely upon the fact that special leave to appeal from the decision of the full court of this court in Kioa's was granted by the High Court of Australia on 16 November 1984 and that that appeal is to be heard by the full court on 5 February 1985. However, in my opinion, the application for a stay must be determined upon the matters at present before the court and upon a present state of the law. The law, on those matters, dealt with by the full court in Kioa's case, and in Smith's case, 1s binding upon me as a single judge of this court, and -that law is contrary to the proposed contentions of the applicants. In my view, it would not be proper for this court to stay the operation of a deportation order made under the Migration Act simply on the basis that the full Haigh Court might at some future date authoritatively determine that the relevant law is different from that acted upon by the full court in those two cases. wilmin 21.12.84 40 e chf 2c In those circumstances it is not necessary for me to consider the other submission put by Mr Moshinsky on behalf of the respondent, namely, that the material before the court does not support the contention that there was in fact any denial of natural justice to the applicants. As to that submission it was made clear from the bar table that there would be a dispute as to the facts. Accordingly the motion by the applicants 1s dismissed. HIS HONOUR: (The applicants are ordered to pay the respondents costs of and incidental to this notice of motion. HIS HONOUR: Thank you, gentlemen. The court 1s adjourned Sine die. AT 4.52 PM THE MATTER WAS ADJOURNED INDEFINITELY wilmin 21.12.84 41-42 pmv caf ic