G \~ \ bol NOT_FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY } No.G571 of 1986 ) ) GENERAL DIVISION BETWEEN : SAMIRA GHIZZAWI First Applicant AND: MOHAMMAD MUSTAFA GHIZZAWI Second Applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent MINUTE OF ORDER JUDGE: Fox J. DATE OF ORDER: 11 December 1986 WHERE MADE: Svdnev. THE COURT ORDERS THAT: 1. The application for stay of deportation be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN_THE FEDERAL COURT OF AUSTRALIA } ) NEW _SONTH WALES DISTRICT REGISTRY } No. G5S71 of 1986 .) GENERAL DIVISTON ) BETWEEN ; SAMIFA GHIZZAWI First Applicant BND: MOHAMMAD MUSTAFA GHIZZAWI Second Applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent. CORAM: FOX Jd. DATE: 11 DECEMBER 1986 REASONS FOR JUDGMENT (EX TEMPORE) FOX J. This is an application to stav a deportation order made on 27 September 1985 against the second applicant under s.12 of the Migration Act 1958 ("the Act") which deals with criminal offences by non-citizens. The first applicant is the mother of the second applicant who is 26 vears old and is a Lebanese citizen born in Lebanon. The deportation order was the subject of an application for review under s.66E of the Act made by the second applicant to the Administrative Appeals Tribunal. Section 66E(3) provides that the tribunal shall either affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the tribunal. The Deputy President of that tribunal handed down his decision on 22 Julv 1986. It was unfavourable in general to the applicant. there being two qualifications or exceptions. I set out some of the immediatelv relevant parts of the decision: "35; The evidence that Mr Ghizzawi mav be subject to some form of reprisals if he falls into the hands of the Svrian Armv is in my view less than cogent. However, I am not prepared to discount it altogether. I accept that Mr Ghizzawi''s brother is missing as a result of the conflict in Lebanon and that his present whereabouts is unknown. I see no reason to doubt the evidence of Mrs Ghizzawi that the family home has been destroved in the fighting. If, in fact, Tripoli is under Syrian control, it mav well be that it would be dangerous for Mr Ghizzawi to return to his native village. It does not follow, however, that there is nowhere in Lebanon to which he can safely return. I find the evidence on this point quite unsatisfactory and inconclusive. It is nevertheless a matter that requires clarification (cf. Re Simon and Minister for Immigration and Ethnic Affairs No.N85/153 - a decision handed down 20 December 1985). wW n In the circumstances, I think it is appropriate in the present case to refrain from affirming the order for deportation notwithstanding that, the question of hardship aside, I would have felt that to affirm the deportation order was the correct or preferable decision. 37: Having regard to the uncertainties, on the evidence before me, as to conditions in Lebanon, and, having regard to the possible risks to Mr Ghizzawi's personal safety if he falls the hands of the Syrian Army, I propose to exercise the power conferred pursuant to section 66E(3) of the Migration Act to remit the matter for reconsideration by the Minister in accordance with the following recommendations: - (i) That, in any event, execution of the order be delaved for a period of three months from the date of this decision to enable steps to be taken. if the applicant so desires, to endeavour to secure an expedited hearing of the pending District Court action or to have his evidence taken prior to his departure (see Pt.25 of the District Court rules 1973). (iid That enquiries be made through the Department of Foreign Affairs, or otherwise as the Minister may think appropriate, to verify whether Tripoli is under Syrian control and to ascertain what areas of Lebanon are not under such control. (iii) That, subject to my first recommendation, the applicant be deported to Lebanon provided the Minister is satisfied that it is practicable for Mr Ghizzawi to have safe entry to an area of Lebanon not under the control of the Syrian Army. (iv) That, in the event that no satisfactory arrangements can be made for Mr Ghizzawi''s safe entrv to Lebanon, the deportation order be revoked. I have not heard anvthing about the progress or otherwise of the District Court action referred to in paragraph 37(i) and assume that it does not have any bearing on the present application. What I have in arqument been calling the safety aspect which is referred to in subparagraphs (ii) and (iii) was the subiect of investigation. The only evidence before me is that the second applicant can obtain safe entry to Lebanon, this being the result of inquiries made of the Department of Foreign Affairs. The evidence or argument to the contrary as presented to the Deputy President had apparently been "less than cogent", and there is no more cogent evidence before me. The Delegate of the respondent Minister decided on 21 November 1986 "that the Svdnev regional office be instructed to proceed with deportation acrangeenth tortautth and the second applicant is due to be deported this afternoon. The present application was made on 8 December and came before me late on 9 December. I suggested that the whole application could possibly be disposed of on the 10th, to which date et 11.00 am it was stood over. On the 10th the applicants said thev could not be readv for a full hearing, but the respondent has taken two points which, if successful, must mean an end of the proceedings, and these have been arqued together with aspects of the merits of the application. There was no challenge by the second applicant to the deportation order as originally made. He seeks only to have reviewed the decision, if it be a decision. of 21 November 1986. His mother on the other hand seeks to challenge the deportation order as well as what was done on 21 November. Grounds stated in the application of both applicants are the taking into account of irrelevant considerations, the failing to take into account of relevant considerations and unreasonableness. There is no evidence to support these allegations, except that it is said that the first applicant has now become a permanent resident and is now actively trving to bring other relatives out from Lebanon. The former is agreed as a fact, but it was foreshadowed in the hearing before the Administrative Appeals Tribunal. Nothing at all precise is agreed about the latter. Although the matter has had to proceed before me with some despatch, counsel for the respondent points out that there has been quite some time to prepare the application, and also that there was a respite of three months or more after the Deputy President's decision. Counsel also submits that the first applicant has no locus standi. I am prepared to qo so far as saving that it is not open to her to reopen the matters dealt with by the Administrative Appeals Tribunal. Even were she able to do so I do not see any adequate support for the grounds upon which she relies. It is also submitted on behalf of the respondent that what was done on 21 November did not involve a decision or conduct related to the making of a decision. This is againa borderline matter upon which I would not wish to rule in an application such as the present. There is, however, no material which has any appearance of supporting the grounds alleged. It is not enough to ask for the order to be staved for the necessary period of some two months so that a case can then be made without some reasonable indication of what material will be available to support the application. I say this with recognition of the background of the case, where there has already been a decision and a full review. The qualification attaching to the making of the final conclusion was essentially related to safetv, and this has never been the subject of serious or detailed asseveration, and has been explored by the Department of Foreian Affairs. The reality of the matter is that the challenge to the deportation order having been unsuccessful, except for the matter of safety and the allowance of the indulgence jn relation to the District Court proceedings, the matter of the District Court proceedings is not now of concern, and on the evidence the matter of safety has been laid at rest without anything to suggest that the second applicant cannot safely return to Lebanon. It seems to me in the circumstances it would be wrong to order a stay of proceedings, subject only to one matter: that is the matter upon which I have not heard any argument, and that is whether as the decision is being delivered by me this morning it is quite unreasonable to expect the actual deportation to take effect this afternoon. Subject to the matter I have just mentioned, I will dismiss the application. No application for a stay having been made on this limited basis, the application is dismissed. I certifv that this and the five preceding pages are a true copy of the Reasons for Judament herein of his Honour Mr. Justice Fox Associate aA CK, Fal Dated: 11 December 1986 Counsel for applicant: Mr J G Stewart Solicitors for applicant: Messrs P K Simpson & Co Counsel for respondent: Mr P Comans Solicitors for respondent: Australian Government Solicitor Date of hearing: Svdnev: 11 December 13986 Date judgment delivered: Sydnev: 1 1 December 1986