SC] NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. No. G 349 of 1986 we www GENERAL DIVISION DHANBIR SINGH PARMAR (also known as DENNIS PARMAR also known as DENNIS SINGH) Applicant and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent COURT: NORTHROP J. DATE: 23 OCTOBER 1986 PLACE: MELBOURNE EX TEMPORE REASONS FOR JUDGMENT There is a motion before the Court that interlocutory orders be made restraining the respondent from enforcing an order of deportation against the applicant, Mr. Parmar, and for an order that the applicant be released from the detention centre at Maribyrnong. I shall deal first with the question of whether an interlocutory order should be made. - 3DECI986 FEDERAL COURT OF AUSTRALIA _f RAI' CIPAL f fb: The facts of this case are somewhat unusual. Mr. Parmar is an Indian of the Sikh persuasion. He first entered Australia on 16 March 1983 pursuant to a temporary entry permit for one month. He did not comply with the terms of that entry permit and remained in Australia until December 1985 when he was apprehended and was deported in January 1986 pursuant to the provisions of the Magration Act 1958 ("the Act"). He arrived back in Australia on 20 April 1986 on transit to Fiji and was granted a temporary entry permit for 24 hours to enable him to stay in Australia until he could catch the ongoing flight to Fiji. Again, he ignored the conditions of that entry permit and remained in Australia until he was apprehended on 28 August 1986. A deportation order was made on 24 September 1986. On 3 October 1986 an application was made to this Court for an order of review under the Administrative Decisions (Judicial Review) Act 1977. The decisions sought to be reviewed in that application were the decisions that the applicant be refused a temporary entry permit, that the applicant be refused resident status and that the applicant be deported. The directions hearing fixed by the application was 31 October 1986. One makes a comment that it is strange that there was such a long delay between the time of the issue of the application on 3 October 1986 and the first directions hearing when regard is had to the fact of the existence of the deportation order which, under s.20 of the Act, has to be executed. I read that sub-section:- "20. (1) Where the Minister (in this case a delegate) has made an order for the deportation of 4 person, that person shall, unless the Minister revokes the order, be deported accordingly." One would have thought that the existence of the deportation order was such as to warrant immediate steps for at least the preparation and application for interlocutory relief, pending the execution of that deportation order, until this application could be heard. Yesterday, 22 October, the deportee, the applicant, was notified that he would be deported at 11.00 p.m. today and as a result the present motion was taken out and notice given to the Australian Government Solicitor on behalf of the respondent. To some extent, the speed at which the matter has come on has made it more difficult to resolve the questions, but this is a case where the reasons for the decisions have been given pursuant to 3.13 of the Administrative Decisions (Judicial Review) Act 1977 and it is on those reasons, together with affidavits filed on behalf of the applicant, and affidavit by Mr. Parmar and an affidavit by Filomena Basile, which form the basis of the present application fora stay, Before going further, reference should be made to what I described earlier as the unusual features of this case. Under s.16 of the Migration Act, a person who enters Australia and is not an Australian citizen and who, at the time of entry, is or was a person being a person who has been deported from Australia shall, notwithstanding 3.10, be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognises him to be a person referred to in this sub-section. There was no such endorsement on the 24 hour temporary entry permit given to the applicant when he entered Australia on 20 April 1986. As a result of s.16, at all times since then the applicant has been a prohibited non-citizen. In the reasons for decision under s.13 of the Administrative Decisions (Judicial Review) Act, findings on material questions of fact are set out. I do not propose to deal with all of those, but it is clear that there was a statement to the effect that the applicant had a romantic relationship in Australia with Mrs. Filomena Basile, an Australian citizen; that it ensued for three months and that Mrs. Basile was his fiancee and that they had planned to marry on 20 September 1986. There are also statements in the reasons to the effect that during a conversation with Mrs. Basile on the morning of the day that the applicant was apprehended, she claimed she had never slept with the applicant and later on that day during an interview at the offices of the Migration Department again statements are said to have been made by her that they were not cohabitating, but were planning to get married. In giving the reasons why the deportation order was made, the person making the decision referred to the fact that the applicant was a prohibited non-citizen by virtue of sub-section 16(1)(c)(v) of the Act, which I mentioned earlier, and his earlier history of being deported as recently as January of this year and that he accepted there was a relationship with Mrs. Basile, but made no reference to the fact that they were living together in cohabitation. The affidavit by Mrs. Basile refers' to the conversation of the morning of the day that the applicant was apprehended but does not say anything about what was said on that occasion, but in relation to the meeting at the Department of Immigration and Ethnic Affairs later that day, she says that she told officers of the department that she and the applicant were living in a de facto relationship and were to be married on 20 September 1986. The essential basis upon which the application for interlocutory relief is sought is that there is a conflict of evidence between what Mrs. Basile says and the facts found by the person making the decision based upon reports of interviews by officers of the department. This turns on the very narrow point of whether there was a statement to the effect that the applicant and Mrs. Basile were cohabitating or not. As far as an application for an entry permit that is not a temporary entry permit is concerned, s.6A of the Migration Act provides that:- "6A. (1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say- (a) he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia; (b) he is the spouse, child or aged parent of an Australian citizen... ". In a case where persons are living together in cohabitation but not married, in law the person who is' the prohibited non-citizen is not the spouse of the Australian citizen, therefore paragraph (b) has no application to the present case. This does not deny the fact that in an appropriate case the decision maker may take into account a de facto relationship, but that does not of itself justify the granting of a permanent entry permit under' sub-section (1) of s.6A. The other ground relied on for what is described as permanent resident status is paragraph (e) of sub-section (1) of s.6A which reads:- "(e) (the non-citizen) 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." In the present case it is clear, because of the fact of 3.16 of the Act, that the Minister cannot grant a temporary entry permit under 3.7 but he could grant such a permit under s.16 with endorsement on it and so, for the purposes of this application, I will assume that there is power in the Minister or his delegate to grant all necessary permits to enable a consideration to be given to whether the applicant should be granted either the temporary entry permit or permanent residency under paragraph (e) of sub-section (1) of s.6A. But despite all that, for present purposes, one comes down to the narrow point of whether the fact that there is no reference in the facts as set out in the reasons' under 8.13 of the de facto relationship is such as to give rise to an issue sufficient to justify the granting of interim relief in this case. As opposed to that, there is the very strong persuasive effect of the history of this matter. The reasons why the decision was made are set out in paragraphs 13 to 22 of the s.13 reasons. In that the statement is made that it has not been established that the couple do share a de facto relationship and that there are serious discrepancies in their description of the relationship and so, to some extent, there is a question of fact which might arise there. But as far as the present application is concerned, what I must be satisfied about is whether there is an issue sufficient to justify the interference of the Court to stay the operation of the deportation order. Is there any basis to support 2 case under the Judicial Review Act? This is a case where there may well be conflicts of fact between what Mrs. Basile and Mr. Parmar say and what the officers of the department say, but one must form the view, on the affidavits, that there is a certain degree of ambivalence in them, and having regard to the length of time in which solicitors have been acting for the applicant, one would have expected far more detailed material before the Court than what is in the affidavits. In any event, this is not a case similar to that in Kioa where there was an allegation of facts which could be used adversely against the applicant and which were not drawn to his attention so as to enable the person to answer them if need be. It is a case where on all the material a relationship between the applicant and Mrs. Basile was recognised. The fact of the marriage coming up in September was accepted and, in those circumstances, I find it difficult to see any argument at all, based upon s.5 sub-section (1) paragraph (e) of the Judicial Review Act, as elaborated upon by sub-section (2) that the Minister or his delegate took into account an irrelevant consideration in exercising his discretion or power or failed to take into account a relevant consideration. Accordingly, I hold that there is no basis for the granting of an interim order staying the deportation order. Further, in those circumstances, it is not necessary for me to consider the second order sought in relation to the releasing from custody. I certify that this and the eh (5) preceding pages are a true copy of thé Reasons for Judgment herein of Honourable Mr. Justice KO rop Changs Wardle Aseociata Dated: 23/10/86