Karpiesiuk, Leszek & Anor v Minister for Immigration & Ethnic Affairs [1985] FCA 693

b13| ags (88)

IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY ») No. VG261 of 1985 GENERAL DIVISION )

BETWEEN: LESZEK KARPIESIUK AND EWA

SZWEDO Applicants AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM: Jenkinson J. PLACE: Melbourne DATE: 22 November, 1985

REASONS FOR JUDGMENT

Applications pursuant to s.15 of the Administrative

Decisions (Judicial Review) Act 1977 to stay proceedings under a

decision in respect of which an order of review is sought by each

applicant.

A delegate of the respondent Minister made an order on ll November 1985 that the applicant Leszek Karpiesiuk be deported from Australia. Shortly thereafter the order was put in execution by placing Mr. Karpiesiuk on board an aircrart which then travelled from Australia to England. The aircrart was operated by Qantas Airways Ltd. ("Qantas"). It was the intention ofr the

respondent's officers and of the officers of Qantas who were

2. concerned in the matter that Mr. Karpiesiuk should on arrival in England board an aircrart which would carry him to Poland, of which country he 1s a citizen and from which country he travelled to Australia in March 1985. [t appears likely that Mr. Karpiesiuk was aware or those intentions before he lett Australia and that, although he had asked betore the deportation order was made to he allowed to travel voluntarily from Australia to a country other than Poland if his application for permission to live here were rerused, he had not indicated his intention to refuse to return to ' Poland until he reached England. But in England he did refuse to board an aircrart bound for Poland, the English authorities declined to enforce his departure for that country and, although

he proposed that he be flown to East Berlin, Qantas brought him

back to Australia.

When the aircraft arrived at Sydney airport, which is a "proclaimed airport" within the meaning of that expression in the Migration Act 1958, Mr. Karpiesiuk was dealt with as a person _ Subject to the exercise of the powers conferred by s.36A(1) of that Act or, perhaps, as a person subject to the exercise of the powers conterred by s.36A(2). Further, a requirement of the kind specified in s.36A(4) has been made of Qantas in respect of him. The applications for orders ot review made in the one originating process (also called, unhappily, an application) by Mr.' Karpiesiuk and by Ewa Szwedo, an Australian citizen who professes an intention to marry Mr. Karpiesiuk as soon as possible, are in respect ot the decisions to exercise those powers, under s.36A(1) or s.36A(2) and under s.36A(4). The decision in respect of which