NEW SOUTH WALES DISTRICT REGISTRY NOT CONSIDERED SUITABLE FOR CIRCULATION IN THE FEDERAL COURT OF AUSTRALIA No. 371 of 1986 wwewew wv GENERAL DIVISION BETWEEN: JOLLY VARGHESE Applicant AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent EX-TEMPORE REASONS FOR JUDGMENT BURCHETT J. The situation is that I have an application before me in a somewhat informal form supported initially by an affidavit from a Miss Glantzlen, who says she is the de facto wife of the applicant and gives some details in support of that statement. The informality and incompleteness of the application and the evidence are explicable by virtue of the speed involved in view of the imminent deportation of the applicant unless some order is made. I understand the application to be under' the Administrative Decisions (Judicial Review) Act 1977 and no objection has been taken on that footing. 2. Oral evidence has been proffered, arising out of a matter to which attention was drawn during the argument, that prior to the making of the decision to make the deportation order, an officer of the Department, who is now the acting Assistant Director of the Enforcement Section, and was then responsible for the preparation of the submission which led to the deportation order being made, was told that the solicitor for the applicant had instructions to make an application, based on s.6A(1)(e) of the Migration Act 1958, arising out of the de facto relationship between the applicant and the lady (whose name may not have been mentioned in the conversation, as I understand the evidence). It would of course be necessary, if such an application were made, that it be made on the basis that an application would be made first for the grant of a further temporary entry permit, since s.6A(1)(e) is only available to someone who is the holder of a temporary entry permit which is in force, and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him. But I would think, prima facie, an experienced officer of the Department would readily understand that that would be open as a way of dealing with the matter, and at any rate that the substance of what would be sought would involve such an application. The fact is that the submission which was prepared makes no reference whatever to the de facto relationship which, apart 3. from its bearing on the proposed application under s.6A(1)(e), would also obviously have a bearing on whether a deportation erder should or should not be made. When I say that, of course, I am not saying anything about the effect that should properly be given to it, but it was obviously a circumstance relevant to the consideration of the matter, and indeed of perhaps considerably more relevance than some of the circumstances that are set out in the document which is in evidence. "The answer proffered on behalf -of the Department is' not' ~ to suggest, either by evidence or submission that this is not so, but to suggest that the alleged conversation with the officer of the Department did not take place. The officer named has gone f into the witness box and has sworn that he has no recollection of this matter being put to him in respect of this case. It seems to be common ground that there were a number of cases discussed between the solicitor and the officer of the Department, and the officer admitted in cross-examination that there was another of them that he had forgotten until reminded by the solicitor. The test for the purpose of the interlocutory relief which is sought in this application is not the discharge of an onus such as would have to be discharged upon a final hearing, but the well-known standard laid down in the Coarse Grain Case (57 A.L.J.R. 425) and other cases to like effect. (See Epitoma Pty Ltd v. A.M.I.E.U. 3 F.C.R. 55 and Shercliff's Case [1978] 1 N.S.W.L.R. 729 at 734.) Applying that test, it seems to me that a sufficient case has been made out by the sworn evidence of Mr Barlow, the solicitor for the applicant. Indeed if one were weighing the matter up finally one would have to pay considerable regard to the difference between the position of a witness who is giving evidence of what he says is his recollection of a piece of information he gave to someone else, and the position of a witness who, having received information in several cases, is unable to recall receiving the information in the particular case. Indeed the officer gave an answer the effect of which I understood to be that he was placing some reliance on his practice to make notes of things communicated to him in particular matters. At any rate, I am satisfied to the requisite degree that a sufficient case has been made out, to require me to consider the balance of convenience, that a factor which was relevant and which was communicated to an appropriate officer of the Department was not taken into account in any way in the making of the decision to make the deportation order, or in the making of the decision to carry it into effect. I think, having regard to the consequences of carrying out a deportation order for the applicant in his situation, and weighing against them the consequences of a stay of the order to enable the matter to be more fully investigated and brought to a final hearing upon full evidence, that I should exercise my discretion by granting a stay 5. of each of the decisions which I have mentioned, and that I should make an appropriate order to give effect to that stay. It will be noted that upon my delivering the ex-tempore reasons which I have just delivered, Miss Fegan has informed me that she is instructed on behalf of the Department to give an undertaking that the deportation order will not be carried out pending further order of the Court. I accept that undertaking and make no further order, except that I will reserve the costs. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. CL Auchan" ——SS——_— Associate Dated: 27 August, 1986.