IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G86 of 1986 GENERAL DIVISION ) BETWEEN: ANE TERESTA WAOALIVA First Applicant AND: JONE QUVULOA WAOALIVA Second Applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 23 JULY 1986 WHERE MADE: BRISBANE THE COURT ORDERS, IN RESPECT OF EACH APPLICANT, THAT: (1) (2) (3) The deportation order made on 7 March, 1986 be stayed until the hearing and determination of the application for an order of review filed on 15 July 1986 or further earlier order. The costs of today's proceedings be costs in the principal proceedings. On or before 13 August 1986 the person who furnished the s.13 statement dated 16 April 1986, namely, Mr. Richard Henderson, furnish to the applicants an additional statement under s.13(7) of the Administrative Decisions (Judicial Review) Act containing further and better particulars in relation to the following matters with respect to the findings of the said Mr. Henderson on we ee er . ase PET F ee a ete Se a, , . tata ve as + NOTE: (4) (5) (6) material questions of fact relevant to the decision mentioned in the document of 16 April 1986: (a) the findings with respect to the matters mentioned in par.6 of the reasons; (b) findings with respect to the matters mentioned in par.7 of the reasons; (c) any other findings not mentioned in the reasons. The respondent file any material on which he proposes to rely on or before 13 August, 1986. The applicant file any material in reply on or before 27 August, 1986. The matter be set down for hearing on a date to be fixed by the Registrar on his being satisfied that it is ready to be heard. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. me pa IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G86 of 1986 GENERAL DIVISTON ) BETWEEN: ANE TERESTA WAOQALIVA First Applicant AND: JONE QUVULOA WAQALIVA Second Applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent PINCUS J. 23 July 1986 EX TEMPORE REASONS FOR JUDGMENT These applicants are Fijians against whom deportation orders have been made. They seek to have the orders stayed to enable them to pursue proceedings to review them under Judicial Review Act. It 1s convenient to deal with the applicants in the order in which they appear in the proceedings. The first applicant was born in Suva in 1963, but her parents separated when she was a baby and she was sent to with her mother's younger sister, who later became Mrs. George. The first applicant lived with Mrs. George, as I shall call her, until she went to boarding school at the age of 13. In meantime, her putative mother, as she is called in the papers, had married an Australian citizen, Colin George. live ete gen yt 2. Mr. and Mrs. George came to live in Australia about the time the first applicant went to boarding school, and I infer that the two events were connected. During the time the first applicant was at the boarding school, she retained some substantial contact with Mrs. George, who visited Fiji and also wrote regularly to the first applicant. The first applicant says that it had "always been decided" that she would live with Mrs. George when she finished school; ain fact, she did not do so immediately, but stayed with her maternal grandmother for about eight months, and then came to Australia in 1981 and lived with Mrs. George as she had done, of course, for most of her childhood. The first applicant says that about two months after she arrived, she went with Mr. George to the Immigration Department and obtained a visa which was subsequently extended. She claims that she was told by Mr. George that everything was all right and she could stay. During her contacts with the department, she was accompanied by Mr. George, and says that he did most of the talking. She understood that Mrs. George was an Australian citizen, and when she first came to Australia she thought that she would be an Australian citizen because of the status of Mrs. George. It appears, however, that the first applicant has had no entry permit since 16 May 1982. She is, therefore, and has been now for some four years, a prohibited non-citizen, although she asserts that she was until recently, unconscious of having BT ree 3. attained that status. Her case 1S that she understood from Mr. George that all matters relative to her "being either an Australian citizen or permanent resident had been satisfied." She applied to the Sydney Hospital at Glebe, and was accepted, as a student nurse and completed a one-year course as a nurse's aide. She then started nursing at Ashfield and continued to work full-time as a nurse until she married the second applicant in July, 1984. There is one child of the marriage, Valam1. The first applicant says that she is fluent in English and 1s assimilated into the community and wishes to remain in Australia. Mr. Boccabella, who appears for the applicants, refers to the statement of reasons given by the delegate dated 16 April 1986 and says that legal error in it is manifest. He points out that in paragraph 9 of the reasons it is said, in effect, that the applicants concealed themselves from the department, and in paragraph 11, that they used false identities. As to those matters, the first applicant says in her affidavit that she has used the name George, for obvious reasons, and since marriage has used her husband's name. She says, "At no time was I ever queried by anyone or department cegarding the use of my name." Mr. Boccabella's point is not that the assertions of concealment and use of a false identity are false, although he says that they are in fact false, but that these matters were, on sas ecieeednitindaaieh adkiad-aeediadated oo we get ee ee ee er the uncontradicted evidence, never put to the first applicant and he refers to the decision of the High Court in Kioa v. West 60 A.L.J.R. 113. It seems to me unnecessary at this stage to decide whether the decision in Kioa 1s applicable to circumstances of this sort, but on the face of 1t, there seems to be substantial reason for believing it to he. That is, the circumstances mentioned by the delegate seem to have had an impact upon his decision to deport the first applicant; they were matters personal to the first applicant which, as I find for the purposes of these interlocutory proceedings, were not put to her and, at least prima facie, should have been. Mr. O'Gorman, who appears for the respondent, points out that in the passages relied upon by the first applicant, the delegate was directing his attention to the question whether the first applicant should be deported rather than allowed to depart voluntarily. It does not seem to me, however, that this is a sufficient answer when the deportation is challenged. There is a prima facie case of illegality attaching on the basis of Kioa's case. Other aspects of the matter were raised by Mr. Boccabelia, but it seems to me unnecessary to discuss them. I am satisfied that there is a sufficient case of the order's being affected by a vitiating procedural error to justify my giving interlocutory relief. wee ote wr ree ep sr me ry 5. The case of the second applicant is somewhat more difficult. The most substantial point, as it seems to me, which is able to be taken on his behalf is that, whereas the delegate said he had used a false identity (meaning, according to the second applicant's counsel, in a way relevant to his immigration status), the false identity in question was concerned with his employment. The passage in question in his affidavit reads as follows: "As to the assertion that I have used a false identity I say I was working for Sunbeam Corporation as John Waqaliva and I applied for a position with Electric Power Transmission. I thought that if the new company checked up and found that I was already working I would have less chance of getting the second job. Therefore I adopted the name Holding. I have continued to use the name Holding in any employment however I did inform the Taxation Department that I had changed my name from Waqaliva to Holding. In everything else I use the name Wagaliva. I did not use the name Holding to avoid the Immigration Department. At no time was I ever queried about my name or asked to make any explanation regarding the use of the name Holding." Mr. Boccabella's point is that, reading the reasons as a whole, it seems to have gone against the second applicant to some extent that he used a false identity, and, according to counsel, that was taken against him in forming the conclusion that he had concealed himself. It seems to me that there is, on this material, no reason to doubt that the second applicant used a false identity in relation to Electric Power Transmission and no doubt, in a sense, ahghalel rarhlialibedbnae aeodeaetebeiie mere we ee ere 6. with a deceptive intention. Nevertheless, it seems to me to be reasonably arguable that the delegate should have explained to the second applicant that the view was being taken, as it apparently was, that his false identity, adopted in the circumstances I have mentioned, had something to do with concealment from the immigration authorities. The second applicant adds the contention that he did not in fact attempt to conceal himself and that may well be so, but it 1s unnecessary to reach a conclusion on the argument foreshadowed by Mr. Boccabella that there was no evidence of concealment from the department. There 15 also to be taken into account the balance of convenience and justice. It would be, I think, a slightly odd result if the wife's interlocutory application were to succeed and not the husband's, although there is no legal obstacle to that result. I think 1n all the circumstances it is better, and more just, that both applicants be permitted to stay pending the final resolution of their application under the Judicial Review Act. The order will be, in respect of each applicant, that the deportation order made on 7 March 1986 be stayed until the hearing and determination of the application for an order of review filed on 15 July 1986 or further earlier order. The costs of today's proceedings will be costs in the principal proceedings. reese eye ese ve we eee ct cyte ca ron rt woe 7. Mr. Boccabella has also raised the question of the adequacy of the reasons given under s.13. As to that I make the following order: I direct that on or before 13 August 1986 the person who furnished the s.13 statement dated 16 April 1986, namely, Mr. Richard Henderson, furnish to the applicants an additional statement under s.13(7) of the Administrative Decisions (Judicial Review) Act containing further and better particulars in relation to the following matters with respect to the findings of the said Mr. Henderson on material questions of fact relevant to the decision mentioned in the document of 16 April 1986: (a) the findings with respect to the matters mentioned in par.6 of the reasons; (b) findings with respect to the matters mentioned in par.7 of the reasons; (c) any other findings not mentioned in the reasons. I will order that the respondent file any material on which he proposes to rely on or before 13 August 1986; that the applicant file any material in reply on or before 27 August 1986; the matter be set down for hearing on a date to be fixed by the Registrar on his being satisfied that it is ready to be heard. : certify that this and the 6 preceding rates are a trua copy of the reasons for judgment herein of His Honour Mr Justice Pincus GAM Gone Associate Dated 23 AL, 986 eee en ne ene. wr cee y aro neore foe 4 Le Won mene ee meee