NOT CONSIDERED SUITABLE FOR CIRCULATION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.474 of 1986 www GENERAL DIVISION BETWEEN: MARY GILLIAN MATTHEWS Applicant MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent EX-TEMPORE REASONS FOR JUDGMENT BURCHETT J. This is an application for interlocutory relief brought in circumstances of extreme urgency. The applicant is subject to a deportation order, and is presently, I am informed, in the holding room at Kingsford Smith Airport, due to be placed on an aeroplane at 3 o'clock this afternoon. It 1s now twenty-five past one. In those circumstances, it is understandable that the application itself is somewhat defective, but very properly no . Vie. point is taken on the formulation of it. At any"pate,. in' my view, it does sufficiently raise questions' under the 2. Administrative Decisions (Judicial Review) Act 1977 in respect both of the refusal of an entry permit and the making of the deportation order. Material has been placed before me which clearly shows a powerful balance of convenience in the applicant's favour, but of course before I can come to that it is incumbent upon the applicant to satisfy me that there is a serious question to be tried within the well known principles of the Coarse Grains case. The applicant has tendered two affidavits dealing with the situation, from which it appears that she is married to an Australian citizen and that, though apparently the parties are not currently living together, all ties have by no means been severed. The submission under which the deportation order was made has also been tendered, together with certain of the attachments, and it is not suggested that there are any further attachments which would throw any light on the interlocutory questions. It seems to me that a number of issues of law are raised, both under s.6A(1)(b) and under s.6A(1)(e) of the Migration Act 1958, but it is not necessary for present purposes to consider any of them, other than an issue which is raised particularly by paragraphs 15 and 23 of the submission which place particular emphasis upon what is described in paragraph 15 as "a comprehensive policy on illegal immigrants". The statement about the policy goes on to refer to the public interest in respect of "queue jumping"; the detriment to prospective migrants of permitting persons to remain 1llegally an Australia; and to assert that the presence of such queue jumpers is inimical to government control of migration programmes and "their breaches of immigration law will weigh heavily against them and when located they should expect to bear the full weight of the law and face the prospect of deportation." Mr. Orr, who appeared for the respondent, told me, from the bar table, the Department's view in this particular matter is that if the marriage is a true marriage there is nothing to prevent the applicant applying "in the proper course", as he put it, to enter and reside in Australia. It seems to me that a serious question is inevitably raised as to whether there was a failure in this case to pay due observance to the law as laid down by the Full Court of this Court recently in Tang's case, unreported, Evatt, Davies and Pincus JJ., 4 July 1986. It may be that that decision is too recent for the full impact of the interpretation the majority of the Full Court placed upon s.6A to have been sufficiently appreciated. Be that as it may, doing the best I can at this urgent interlocutory stage, I think that there is a serious question to be tried on that basis and since, as I have said, the case presents several unusually strong features bearing on the balance of convenience in favour of the applicant, I propose to grant interlocutory relief unless some appropriate undertaking is proffered. Having regard to the time, I do not think that I should take up time discussing other issues which, in view of my decision on the issue I have discussed, it is not necessary to detail. But I will mention that there is a question in my mind whether there was a failure also to take into account a relevant consideration in respect of the situation of the applicant's son. Certainly some aspects of the impact of the decision in relation to him were considered, but the material placed before me leaves me in the position where I think it may be queried whether any real consideration was given to the full ramifications of the decision in respect of him. However, as it is not necessary to do so, and I have not heard full argument in relation to that aspect of the matter, I have not come to any conclusion one way or the other upon it. Mr. Orr, in other matters that I have been concerned with, when I have indicated that I was prepared to grant relief, an appropriate undertaking has been forthcoming, and where a minister of the Crown is concerned I would act upon that. Is this a case where that can be done, or is it necessary to make an order? MR. ORR: Yes, your Honour. I just need one minute to ensure that I get proper instructions. HIS MR. HIS MR. MR. HIS MR. HIS MR. HIS MR. HONOUR: ORR: HONOUR: ORR: BARLOW: HONOUR: BARLOW: HONOUR: BARLOW: HONOUR: ORR: By all means. Yes, your Honour. My client has indicated that we would be able to give an undertaking that Mrs. Matthew will not be deported today. And are you able to give it in the form that she will not be deported until further order? Yes. Your Honour, if I might just be briefly heard on that point. I am concerned, given the circumstances. She is at the airport at the moment and ... Well, Mr. Barlow, given those circumstances, the important thing is that we do not take up a lot of time, and the Court office has - I assume you have done enough of these cases to be aware of this - has been furnished by the Department with a list of officers who can be contacted to ensure that urgent interlocutory relief, when it is granted, is put into effect. But in this case Mr. Orr is here and has people instructing him. I would imagine there is not going to be any great problem, but I think it is more important that the matter be acted upon than that we take up a lot of time talking about it. Unless there is some specific matter you want added, I would be prepared to accept an undertaking to the Court proffered on behalf of the Minister. I have had undertakings from officials from the Department before and they have been denied in Court. This, I appreciate, is in a different category, it is an undertaking to the Court; but I am just still concerned about any possible room for danger that this woman is placed on that plane. Once she is on the plane that is the end of the matter. If a Court order is made ... What are you asking me to do, Mr. Barlow? I am asking you to make an order of the Court, your Honour, that the order be communicated to the Federal Police. Mr. Barlow, I have been given a clear undertaking by someone briefed by the Australian Government Solicitor - is that right, Mr. Orr? A solicitor with the Australian Government. HIS HONOUR: MR. BARLOW: HIS HONOUR: MR. ORR: HIS HONOUR: MR. BARLOW: 6. By a solicitor of the Australian Government Solicitor, and I am prepared to accept such an undertaking, and I do not think it is appropriate that your submission should be put in the terms in which it was put. I do not question my friend's good faith, but perhaps if my friend could personally communicate with the relevant officers then I would be more than happy with the matter to be dealt with on that basis. As I have already pointed out, Mr. Barlow, the Court has a list of people to be contacted, and there is no reason why you cannot obtain from the Registry the appropriate name and contact him yourself as a double check; but I have no doubt Mr. Orr, having given that undertaking, will be having a communication made as urgently as possible. Is that right, Mr. Orr? Yes, your Honour. Very well, I accept that. That satisfies my question, your Honour. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Lax Orel Associate Dated: 17 October, 1986.