bet NOTE: Not considered appropriate for reporting or for : general distribution. ~ mio io co — ,Qa cae 5 : IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 256 of 1985 GENERAL DIVISTON BETWEEN : SHIU_WAH CHEUNG and JOANNE HUONG LAM Applicants and THE HONOURABLE CHRISTOPHER JOHN HURFORD, MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent MINUTES OF ORDER COURT: Woodward J. DATE: 22 November 1985 PLACE: Melbourne THE COURT ORDERS THAT: 1. The application be dismissed with costs. 2. Leave to appeal be refused. (NOTE: Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules.) "a NOTE: Not considered appropriate for reporting or for general distribution. (AEW) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 256 of 1985 GENERAL DIVISION BETWEEN : SHIU_ WAH CHEUNG and JOANNE HUONG LAM Applicants and THE HONOURABLE CHRISTOPHER JOHN HURF'ORD, MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent COURT: Woodward J. DATE: 22 November 1985 PLACE: Melbourne EXTEMPORE JUDGMENT This is an application for the stay of deportation of an applicant for an order of review, pursuant to the Administrative Decisions (Judicial Review) Act 1977, of a number of decisions made within the Department of Immigration and Ethnic Affairs. Those decisions are set out at length in the application, but there are, I think, only two decisions that are seriously challenged. The first was a decision not to grant a temporary entry permit, and the second related decision was to deport the first~-named applicant. implications ~ were not taken into account by the delegate, and that in that sense there was a failure to take into account relevant considerations. However, I am satisfied that the delegate did take into account the marriage and the implications of it. I think one must remember that the statements of reasons given by delegates or ministers in a case such as this, have typically to be prepared with some speed. In the present case I granted an interim injunction on the llth of this month, required the applicants to serve affidavits in support of their application by the 19th of the month, and made it returnable today, being the 22nd. In the course of that process the delegate had reasons prepared which were signed on 19 November. They cover some four and a half pages of type, and it is true that the delegate does not dilate upon the marriage. He says that for the purposes of his decision he accepts that it is a genuine marriage and, in paragraph 12, he refers in passing to the weight which has to be given to the marriage, and he says that that weight should be discounted by the fact that the marriage took place outside any period in which the applicant was lawfully in the country. In fact the first-named applicant came to Australia on 26 July 1984, with a@ one-month visa. He established a relationship with the second-named applicant in about January of this year, and they lived together in her family's home until 20 October 1985 but, apparently, sleeping in different rooms. They were married on 20 October, and it was only five days after that that the first~-named applicant was apprehended. Given that the marriage was only five days old, there was not really a great deal that the delegate could be expected to say about it. This is not a case like Kioa's case (above), or the more recent decision in Kaufusi's case (unreported decision of 30 September 1985), in which Smithers J spoke of the need for the delegate to give real and genuine and not merely nominal attention to a question such as the effect on the family of a deportation order. The case that his Honour was concerned with there, as in Kioa's case, was one where there were children involved who had been born in Australia and were therefore Australian citizens. Whatever may be said about such cases (and, for myself, I would not think there was any need to place very great weight upon chance Australian citizenship arising because prohibited non-citizens happen to give birth to children while illegally in this country), this case is not like those. It is undoubtedly necessary that a genuine marriage to an Australian citizen should be taken into account by the minister's delegate and given weight - such weight as he sees fit. But one can easily understand the general requirement that migrants to this country should not be able to jump the queue, and if found staying in the country long beyond the time their visa permits, and breaking the rules of that visa by obtaining employment, they must expect to be deported. If they are to be required to make their application for entry to Australia in the proper way, then the decision of the delegate that this should be done in the present case, in spite of the fact that a marriage - and indeed a genuine marriage - had been contracted a few days before the prohibited non-citizen was apprehended and a deportation order made, is entirely reasonable. The delegate did take into account the circumstances of the second-named applicant. He satisfied himself that there would be no likelihood of undue hardship being caused to her by the deportation of her husband. In particular, he accepted the fact that she was in employment in Australia and, because of her business commitments, it would not be practicable for her to leave the country with her husband or follow him immediately after his deportation. But that very fact, of course, illustrates the circumstance that she will not be in any financial hardship in his absence and there is no reason to think that the effect of the separation in this case will be any different from the inevitable distress caused to a young couple recently married who are required by circumstances to separate for a time. I have no reason to believe that that consideration was not properly taken into account by the delegate, because the marriage and its incidents were really the only matters before him of any significance, pointing in the applicants' favour, when he was called upon to make his decision. Accordingly, in my view, this application must he dismissed, with costs against both applicants, because the applicants have failed to establish that there is a serious issue to be tried. The effect of that is that the stay of deportation will come to an end at 5 o'clock this evening. (Counsel for the applicants sought leave to appeal.) I am not prepared to grant leave to appeal. This is such a straightforward, clear-cut, unambiguous case, that I have no hesitation in saying that the applicants ought not to have their interlocutory injunction and, having said that, it is impossible for me to say that there is anything which counsel could sensibly address an appellate court about. Leave to appeal will be refused. I hereby certify that this and the five (5) preceding pages are a@ true and accurate copy of the Reasons for Judgment herein of The Hon Mr Justice Woodward CONS ge Associate Dated: 22 November 1985