ty AAS . NOT CONSIDERED SUITABLE FOR CIRCULATION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 470 of 1986 www ws GENERAL DIVISION BETWEEN: SEBASTIAN HAMLET LAREMONT Applicant MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent EX-TEMPORE REASONS FOR JUDGMENT BURCHETT J. In this matter the applicant entered Australia on 30 April 1980 and was granted a temporary entry permit for a period of two months. Since then he has been here as what is now, under the legislation currently in force, described as a prohibited non~citizen. On 17 July 1985 a deportation order was made. On 16 August 1985 a review of that order was sought through the Court, and on 12 September 1985 an application was made that he be found to be entitled to refugee status. The RE ie of refugee status on 30 September 19855 ecomitended against his 7, » \2 being found to have that status. ~ Ps) « +t 1 7 NOV19R5 FEDERAL COURT OF AUSTRALIA PRINCI REGISTAY 3" ra On 27 October 1985 the deportation order made in July was revoked. The question of the issue of a temporary entry permit, at that stage, was considered, and it was decided that it should be refused, and a further deportation order was made. On 6 December 1985 Lockhart J. ordered that the matter be referred back for further consideration, for reasons which were substantially concerned with a failure, which his Honour found had occurred, to take account of a relevant consideration. That relevant consideration related to the applicant's need to be in Australia, in the then near future, for the purposes of a workers compensation claim which he had made. Lockhart J. ruled that this consideration had not been properly put to the Minister, and that what had happened in connection with it amounted to a failure to take it into account in an appropriate way. The workers compensation proceedings were concluded in December 1985, but they led to further proceedings in the District Court in February of this year, and the enforcement of deportation was delayed for reasons, at any rate which included, permitting finalisation of the District Court proceedings which were indeed finalised in February 1986. At least twice during the year 1986, the applicant's solicitors were invited to make further representations or submissions in relation to his case. No further submission was made, in relation to the issue of refugee status, until very woe aT Matra Se aT TT AOU TOSD Ce sere eee a e * a ' hot . yo "recently, 3. nor was the question of refugee status raised as an issue in the proceedings before Lockhart J., although it had previously been raised, as I have said, and determined against the applicant. No suggestion was made in those proceedings that any error reviewable by the Court had occurred in relation to the determination of that question. On 26 September 1986 a deportation order was again made, and it was served on 3 October, when the applicant was taken into custody. On 15 October he made a further application for refugee status, and on 16 October he was interviewed in relation to that application. On the same day, a decision was made by a delegate, Miss Phi, in the following terms: "The case was fully assessed by the Committee on the Determination of Refugee Status. I have examined a report provided by Mr. Collins and cannot deduce from it any grounds which provide new or substantial information for consideration. The applicant does not have a well-founded fear of persecution in terms of the refugee convention. His conflicts with the Panamanian Consul appear to be personal in nature, and not directed to his refugee claim. I see no ground for delaying his departure from Australia, given the additional information he has provided." A letter notifying the applicant was sent on the same day. The application which is before me, seeks relief against the deportation order and the denial of refugee status, and I have been moved to grant relief upon an interlocutory basis under it. It does not refer to the Administrative Decisions (Judicial 4. Review) Act 1977, but I have been told by counsel that the application is brought in reliance upon that Act, and its grounds are, as set out in the application: "1. That the applicant is a person who, if returned to the Republic of Panama, would be a person subjected to a threat to his life and liberty; 2. That the applicant is a person who and whose family, if he is returned to the Republic of Panama, would be subjected to harassment." The claims, as originally formulated, were for an order, firstly, that the deportation order be revoked; secondly, that the respondent, his delegate, servants or agents be restrained from proceeding with the deportation order pending determination of the applicant's refugee status; and, thirdly, that the respondent be restrained from detaining the applicant pending the determination of the applicant's refugee status. I permitted an amendment reformulating the claims as follows: "1. An order that the deportation order be revoked; 2. An order referring the application by the applicant for refugee status and the additional material brought before the Court to the Minister or his delegate for reconsideration; 3. An order that the respondent be restrained from detaining the applicant pending the reconsideration of the application for refugee status by the respondent." TFT a ee pe L ri I. i. L The first question is whether there is a_ serious question to be tried, or, as it has been suggested in one or two decisions, whether in all the circumstances justice requires a grant of interlocutory relief. Without attempting to reach a conclusion as to which of those formulations more accurately describes what I am required to do, I am content to subsume both of them under the heading of a serious question to be tried, and by that expression in this judgment I am comprehending the application of each test, so that to the extent that there may be any difference the applicant has the benefit of each of them in this judgment. Having regard to the urgency of an application of this kind, I do not think that it is appropriate, if a ground for relief appears, that the Court should be overly technical about the form of the application. It must not be forgotten that the jurisdiction of the Court is to exercise supervision over the fulfilment of legal requirements - not, as the Administrative Appeals Tribunal can do in cases where applications lie to it, to review the decision on the merits. Here the legal grounds suggested are really two. Firstly, reliance is placed on the principles of natural justice applicable to such a decision under Kioa's Case 62 A.L.R. 321. As Fox J. said in Sinnathamby's Case, 66 A.L.R. 502 at 506: "The effect of Kioa is that while the Department is obliged to accord natural justice when acting under s 18 of the Act, the extent of the requirement is conditioned by the particular facts in each case." ae ' ator eee ys po een ye + ee ak trae Doan rey repecarmres so Tare °D aaearaReL hae 7] In the present case, over a period in excess of a year, the applicant has been on notice that he could imminently be deported. He has had solicitors acting for him and access to counsel. He had applied for refugee status and his claim had been rejected. He had every opportunity to put further material before the Department, and to renew the application which he knew had been so made and rejected. It seems to me it was clearly open to the decision maker to take the view of the facts that the applicant was not entitled to refugee status, and that any difficulties he was having in respect of his passport did not, in all the circumstances, provide a reason for delaying further the already long-delayed deportation of the applicant as a person illegally in Australia. If his fears are not well founded, there is no reason why the Department should not have taken the view that he should have returned to Panama, upon being unable to obtain other travel papers. He has very greatly exceeded the period reasonably inherent in his previous undertakings, and in the basis on which he was permitted to delay his departure. It is conceded that there is no evidence that he has told the Department of his passport difficulties, and made representations regarding those difficulties, or sought assistance in obtaining travel documents appropriate to enable him to comply with undertakings operative since about last February. poces ae - Toy tess ' po ee . 4 - 7. The Department invited representations more than once. Fairness requires that the applicant be given an opportunity to put matters on which he relies, but that opportunity has been given, and repeatedly. In the course of argument on the applicant's behalf, counsel on a number of occasions put the rhetorical question: Why has the Department not considered these things? The answer seems clear. The Department has on the evidence considered what has been put to it, and has in writing invited the submission of any further matters. The suggestion that counsel made that the Department had ultimately shown indecent haste, when considering the last minute further application for refugee status, seems to be quite unreasonable. The application itself had been invited for many many months, and had not been made, and was only made when the prospect of deportation was imminent. It seems to me that the Department, on the evidence, acted reasonably in the manner in which it dealt with it at that stage. It was also put that there had been a failure to take account of a relevant consideration, but I do not find that there was a serious question raised of any relevant consideration that was put before the Department and not considered by it. In the circumstances of this case, I do not think that any of the matters raised now in evidence, which it was suggested may not have been considered, could have been regarded as a matter the Department was bound to seek out for itself, in the absence of a submission being made when invited. Pr ee eee pee a ee ama ee mot, .- 1. we oA meee —e I do not find a serious question to be tried that there has been in fact any failure to take account of any relevant consideration, or any denial of natural justice. Emphasis was placed, in the submissions on behalf of the applicant, on an alleged lack of formal material from Panama regarding the termination of what was referred to as a mission in Australia for the Panamanian Government, undertaken by the applicant. But the only relevance suggested of this material was an inference of a threat to him, warranting a grant of refugee status. I do not see how that arises, nor can I conclude that the evidence makes out a serious question to be tried that there is or has been any such threat. In any case, the applicant has had a full opportunity to present evidence on that aspect, and his claim has been rejected by the decision maker. I see no error of law in the manner of its rejection. No evidence has been given of any political involvement, or other matter relevant to a refugee status. The applicant contented himself with quite vague general statements about conditions in Panama, and inferences which he said arose from his difficulties in obtaining a passport. I see no reasonable basis for these contentions, but in any case they were matters to be put to the Department, and much of the material now relied on was; and insofar as any was not, it could have been had the applicant chosen to submit it. Accordingly, on the basis that no serious question to be tried arises, I refuse the application. Is there any application for costs? MISS BEAZLEY: I make an application for costs, your Honour. HIS HONOUR: Do you have anything to say about that, Mr Coombs? MR COOMBS: No, I have nothing to say, your Honour. HIS HONOUR: Very well, the application is refused, with costs. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. én hile Associate Dated: 22 October, 1986. se em ree ae gen Reger ere ont eaé omnes pees f as eee