» ' _ Sok | ¥ ok aa one re THE FEDERAL COURT OF AUSTRALIA 3 Wns, avs? VICTORIA DISTRICT REGISTRY VG No. 377 of 1986 vT » GENERAL DIVISION wee ww EX TEMPORE JUDGMENT ay an .? Between: ELIZABETH WANIEWSKA (Applicant) Foamy oy fay MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS | <a ne ete peep mo er eter (Respondent) Wa 'oe Coram: Ryan Jd. Date: 7 November 1986 ata boie-adl EX TEMPORE REASONS FOR JUDGMENT a en HIS HONOUR: This is the adjourned hearing of an application r. for interlocutory relief by way of an order restraining the respondent, the Minister for Immigration and Ethnic t Affairs, from taking any steps to implement an order [ made for the deportation of the applicant until the determination of this application or further order. By | her application, the applicant contends that a decision taken by the Delegate of the respondent Minister to t order that the applicant be deported should be reviewed on the qrounds that the applicant was denied natural justice in the course of the making of the decision, in that she was given no sufficient opportunity to be heard before the decision was made. A second ground relied on in the application is that the making of the decision was an improper exercise of the power conferred by the Migration Act 1958 in that irrelevant considerations were taken into account, relevant considerations were not taken into account, or the discretion reposed in the Minister was exercised in accordance with a rule or policy without regard to the merits of the applicant's case. The final sub-paragraph of ground 2 1s that the exercise of the power by the delegate of the Minister was so unreasonable that no reasonable person could have so exercised the power. Both counsel who appeared before me accepted, at least by implication, that the approach to be taken by the court on an interlocutory application of this kind is to enquire first whether the applicant has established that there 1s a serious question to be tried, and if satisfied as to the existence of such an issue, to consider whether the balance of convenience favours the grant of an interlocutory injunction. See Australian Coarse Grain Pool Pty. Limited v. Barley Marketing wees = TT .¢ wee ee cree i t fe i L i ba Fi l te t. ¢ i E ¥ Board of Queensland 57 ALJR 425, which was followed in Tableland Peanuts Pty. Limited v. Peanut Marketing Board, 58 ALJR 283. The first question to be tried as identified by Mr. Tracey, who appeared for the applicant, was whether the respondent had regard to material which militated to the prejudice of the applicant in circumstances in which the applicant had no opportunity effectively to reply to that material, or to rebut the adverse inferences drawn from it by FEhe Delegate to the Minister. Reference was made to Kioa v. The Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321. In particular, it was suggested that the Delegate to the Minister came to the conclusion that the applicant, Miss Waniewska, had formed an intention to reside permanently in Australia, either before she came to this country, or shortly thereafter. The presence or absence of such an intention was a matter on which she had no real opportunity to make submissions or to adduce further evidence. Mr. Downing for the Minister arqued that Kioa's Case had no application to the facts of the present case, which he submitted fell, rather, within the principles enunciated in Sinnathamby_v. The Minister for , ' r j le Immigration and Ethnic Affairs, (1986) 66 ALR There, it was indicated, for example, by Fox J p.506 that: "In the present case, as his Honour found, the material which was prejudicial to the appellant had been provided by the appellant herself. In the circumstances, I consider that the decision-maker was not required to give the appellant a chance to comment on the view that he had taken of at; to do so would amount toa general requirement that a decision-maker make known in each case his view or evaluation of the material that an applicant puts forward: see Kioa per Brennan J at p.380. His thought processes, if not unreasonably based on evidence, or other material, are a matter for him. I agree with his Honour that there was no denial of natural justice 1n this respect." Mr. Tracey, in reply, submitted that this case somewhere between Kiga and Sinnathamby in the that the Delegate to the Minister had drawn ce inferences, at least partly, he conceded a understood him, from facts adduced in the first 502. »~ at fell sense rtain s I place by the applicant herself. However, the question which remains to be decided is whether the drawing of those inferences was a matter upon which the applicant should properly have been heard. The second substantive ground relied on by applicant arose out of the way in which she interviewed by officers of the Department Immigration and Ethnic Affairs on 16 October 1986. the was It Womens pee iy cre em pen rman ene eee ee ee ry boas . ae wee TE eye te Tg egy Tee oe erte rere Ree was submitted that that interview was conducted in circumstances which were disadvantageous to the applicant, particularly, because the services of an interpreter were availed of by means of a telephone. The interpreter was not present while Miss Waniewska was being interviewed by the departmental officer. The only evidence so far before the court of what happened at that interview is that of Mr. Terlecki, apparently a friend of the applicant, who deposed that he speaks fluently both Polish and English and that the applicant, "dees not have a sufficient command of the English language to enable her to be interviewed without the assistance of an interpreter." Mr. Terlecki has further deposed that during the course of the interview, he wished to raise objections regarding the accuracy of the translation by the interpreter whose services were provided by telephone. He instanced, without complete particularity, some of the matters in which the translation of the questions put to Miss Waniewska from English into Polish, and the translation of her answers from Polish to English, was deficient. Specifically, he deposed, "During the course of the interview, it became apparent to me that the interpreter was confusing the tenses in which various questions and answers were phrased." a wy mee aeeree manent A ce apes err Ty ae ae omen ee ae ce, . yt It was further suggested in the course of Mr. Terlecki's affidavit, and developed in the course of argument before me, that such confusion of tenses was particularly significant as contributing to a misunderstanding on the part of the departmental officers concerned as to when if was that the applicant's mother had knowledge of the applicant's involvement ana body called the "Society of Teachers for Free Expression". That, it has been suggested, was a proscribed society in Poland, and the applicant's membership of it and the consequences which might attach to such membership were she to return to Poland were matters of real significance which should have been taken into account by the Delegate of the Minister in processing Miss Waniewska's application for the status of a permanent resident. Another ground relied on by Mr. Tracey was that the Delegate to the Minister had taken the view that the applicant had been guilty of what might be described as "queue-jumping" which, in itself, was a circumstance weighing, and perhaps conclusively, against the grant of her application. The final ground relied on was that the decision was 50 unreasonable that no reasonable delegate could have come to it. I might say, without expressing a final view on it that the last ground does not commend itself to me. Had it stood alone, this interlocutory application would not have succeeded. However, I am disposed, in the limited time which I have had to reflect on this matter, to conclude that there is a serious question to be tried. It is undesirable, in the circumstances, that I should canvass the merits of that question any further or, indeed, that I should identify which of the other questions advanced by Mr. Tracey I consider fall into the category of a serious question to be tried. It is sufficient for the purposes of this interlocutory application that I find that at least one such question exists, and I have been able, as I indicated, to come to that conclusion. Iwas urged by Mr. Downing, who appeared for the respondent Minister, that even were I to find a serious issue, I should nevertheless refuse to extend the stay granted by Jenkinson J. on the ground that no serious detriment or inconvenience would be visited on the applicant by such refusal. I was referred in that context to the unreported judgment of Jenkinson J. in Singh v. Minister for Immigration and Ethnic Affairs which was delivered on 2 October 1986. However, I regard the circumstances of that case as clearly distinguishable from those of the present a ase Wl er ae > ape applicant. I am disposed, rather, to accept Mr. Tracey's submission that were the applicant to be deported to Poland, the future resolution of the questions between her and the respondent would become academic, and that her prospects of returning to this country, should she succeed in her application for a review of the adverse decision, would be illusory. On the other hand, I do not consider that the inconvenience which will be inflicted on the Minister by extending the stay of the operation of the deportation order for the relatively short time needed to dispose finally of the questions to which I have yreferred, is such that it carries enough weight to lead me to dissolve the stay. Accordingly, I propose to continue the stay which was granted by Jenkinson J. on 30 October 1986 by ordering that all proceedings under the decision of the Delegate to the Minister to carry into effect the deportation order made on 27 October 1986 be stayed until 4.30 pm on 20 November 1986 or further order. I direct that the application be adjourned for final hearing and determination ta 10.15 am on 19 November 1986 in Melbourne. I direct that any further affidavit or affidavits on which the applicant seeks to rely be filed and served not later than 12 November 1946. 1 darect further that any answering arfidavit or affidavits on behalf of the respondent be filed and served not later than 17 November 1386. I was pressed by Mr. Tracey to order that the applicant be released from custody until the final hearing and determination of her application, subject to appropriate terms being imposed as to a place of residence and a regime of reporting to officers of the Department of Immigration and Ethnic Affairs. However, in the circumstances, including the fact that the applicant has in the past concealed her whereabouts from officers of the Department, I am not disposed to accede to that submission. I assume that adequate opportunity can be given to the applicant while she remains in custody to consult and fully to instruct her legal advisers in the prosecution of her application. Should that expectation not be borne out, a further application can be made to this court pursuant to the general liberty to apply which I propose to reserve. So the other direction which I make is that liberty he reserved to each party to apply for further directions in this matter as she or he may be advised. I propose to reserve the costs of this application and otherwise, as I indicated, the matter will be adjourned for final hearing and determination to 19 November this year. owen ce a cor roe ony woe . ww mene re er eo em nn ee eee SH 10. I certify that the preceding nine (9) pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Ryan. Dated: 42 - f)- (FP PF Wo sec ore Oe Associate