IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY (NOT SUITABLE FOR DISTRIBUTION) GENERAL DIVISTON ) ) ) VG No. 416 of 1986 ) ) BETWEEN : PETER ANDERSON Applicant and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent MINUTES OF ORDER COURT: Woodward J. DATE: 19 December 1986 PLACE: Melbourne THE COURT ORDERS THAT: 1. The execution of the deportation order dated 11 December 1986 be stayed until the hearing and determination of the application herein or further order. The applicant be released from custody forthwith on condition that he report each Monday and Friday (other (NOTE: than on 26 December and 2 January) during normal office hours to an officer of the Department of Immigration and Ethnic Affairs at the fifth floor, Block 1, Commonwealth Centre, Latrobe Street, Melbourne. The applicant continue to reside at 72 Loyola Street, Werribee, unless he first notifies the department of a change of address. The applicant deliver an amended application and particulars, if so advised, on or before 30 January. The directions hearing be adjourned to Friday 13 February. Liberty to apply be reserved. Costs be reserved. Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules). IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG No. 416 of 1986 ) GENERAL DIVISION ) BETWEEN : PETER ANDERSON Applicant and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent COURT: Woodward J. DATE: 19 December 1986 PLACE: Melbourne EX-TEMPORE REASONS FOR JUDGMENT In this matter I 'have had considerable difficulty in arriving at a decision. I find that the arguments for and against the application for the continuation of the interlocutory injunction are finely balanced, and in particular I am not convinced that the applicants have demonstrated a serious issue to be tried. On the other hand I think that there is, amongst the material that has been put to me, a very real possibility that there is a serious issue to be tried. The material is, of course, not in its final form, although much of what would be put before a trial judge is presently before me. The arguments of convenience are so overwhelming in favour of the applicant that, in spite of the doubt that I feel about the serious issue to be tried, when I put those two issues together, as I believe I should, then I think the balance comes down in favour of the applicant. I say this for two substantial reasons: the first is that ona previous occasion when the applicant had overstayed his residence in Australia the officer considering the matter did record, and apparently take into account, the risk that the applicant ran of suffering quite significant penalties by way of imprisonment if he were deported to Singapore - arising from his failure to observe his obligations as a member of the Army Reserve. On this occasion, if anything, the point is more significant because of the effect those conditions would have upon "the Australian citizen with whom the applicant has developed a very close relationship, such that they plan to be married in the near future. But in spite of that, the officer to whose attention this consideration was drawn took the view that it was of no significance and did not bother to record it, which produced the result that the only material touching on it was tucked away within the history of the matter at the point where the papers relating to the earlier incident were retained on the file. I think that the likely penalties to be suffered by a deportee on return to the country to which he would be deported, and in particular the effect that those penalties would have upon an Australian citizen, however indirectly, are matters which are appropriate to be taken into account, or at least arguably so, and I do not think I need go beyond that for purposes of the present application. The other factor which weighs with me is that there is a question which has been raised about the time which was given to the taking of this decision. It appears to me to bea very difficult decision, where there are quite strong arguments against granting the applicant the temporary residence which he would require in order to make out his case for permanent residence: these arise from his previous conduct in ignoring or not giving appropriate respect to the immigration requirements of this country. But I am troubled by the fact that, in this case, the one departmental officer who dealt with the matter in the first instance from the point of view of the applicant, rather than the point of view of the enforcement of the Immigration Act and the provisions made under it, did recommend in his favour, and I can see nothing in the reasons of the ultimate decision-maker which would suggest that he was aware that the officer immediately dealing with the application in that sense had made a favourable recommendation. It is true that the reasons do summarise the case which was put by the applicant, but nowhere is it suggested that there was within the Department any view contrary to the one which was put before the decision-maker by way of a recommendation. Having regard to that and to the foreshadowed evidence which I am prepared to accept for present purposes, although it is only an the course of preparation, that the papers were available to the decision-maker at 2 pm on 10 December, 1t seems that there is no detailed evidence as to the amount of time which the decision-maker was able to give to them; but certainly there is the somewhat awkward fact that he signed the papers on 11 December, at some time unspecified, and yet the Vocadex drawing the attention of the applicant, or those assisting him, to the decision, was dated at 12 minutes past 8 on that same morning. It does, I think, raise some cause for concern. I accept that the Vocadex should have been timed at 12 minutes past 9, because of the effect of summertime in the eastern states, but it does suggest, at least as an arguable proposition, that the decision was arrived at and recorded and transmitted with some element of haste, which gives rise to that disquiet that I feel and which I referred to earlier. I can understand that at this time of the year the Department of Immigration, like most government departments and other bodies throughout the country, is working under great pressure. I would not feel comfortable about allowing the deportation of someone who obviously has a rather complicated case to be considered, where it may be able to be established that the decision-maker did not have enough time to consider it fully, and was not aware that there had been a favourable recommendation from the officer who was charged with the responsibility of looking at the situation of the applicant and his de facto wife, an Australian citizen, before making a recommendation on the subject of a temporary entry permit which would have been a pre~condition to the grant of permanent residence. It may well be that when all these matters have been considered, it will be established that in fact proper consideration was given, and that these matters were taken into account. But in view of the time of the year, and the serious repercussions as far as the applicant is concerned, I think that it is better that he should remain in the country until his application can be developed and be dealt with by the Court, rather than that he should be deported some time in the next few days. Iam therefore prepared to continue the stay of the deportation. I certify the this and the four (4) preceding pages are, a true and accurate copy of the Reasons for Judgment herein of The Hon Mr Justice Woodward Associate Dated: 19 December 1986 Counsel for the Applicant: Mr M. Heaton Solicitors: Messrs Paul B. Connor Blackman & Co. Counsel for the Respondent: Mr M. Colbran Solicitors: Australian Government Solicitor