LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.121 of 1987 ww SS GENERAL DIVISION BETWEEN: KYU SANG YOO Applicant MINISTER_FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent REASONS FOR JUDGMENT BURCHETT J. In this matter, Gummow J. granted on 27 March 1987 an interlocutory stay of a deportation order until 5 PM on 1 April 1987, and gave certain directions in respect of the filing of affidavits. The matter came before me on 1 April 1987, when the applicant sought an extension of that relief. The applicant is a citizen of Korea who arrived in Australia on 29 August 1982, being granted a temporary entry permit for a period of two weeks only. He remained illegally in Australia after the expiry of the temporary entry mit, and FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY On 15 January 1987 the applicant was arrested under s.38 of the Migration Act, 1958 and he has since been held in custody. On 20 March 1987 decisions were made by a delegate of the Minister refusing the applicant a further temporary entry permit, refusing him the grant of a resident entry permit, refusing him the concession of supervised voluntary departure and determining that a deportation order be made on that day. These decisions were made upon the basis of a submission which was also dated 20 March 1987. The submission carefully recounted the applicant's circumstances and contained a number of findings on material questions of fact, a statement detailing the material on which those findings were based, an assessment of the factors relevant to the decisions, and finally a recommendation that the decisions I have referred to be made. The delegate added no comments of his own upon the material, but made the decisions recommended. Central to the applicant's case is the fact that, shortly before his arrest, he had suffered a serious industrial injury resulting in continuing incapacity. The injury was sustained on 5 December 1986 in a fall from a substantial height at his place of work. In the fall, he suffered fractures of his right wrist and other lesions as well as an aggravation of a congenital back disorder. The evidence indicates that the applicant 1s likely to continue to suffer permanent partial disability in respect of his right wrist, sufficient to interfere with his work capacity. He is presently unfit to work and in receipt of workers' compensation. He claimed, and it is not 3. disputed, that under the provisions of the relevant workers' compensation legislation he will, if deported at the present time, though still unable to work, not be entitled to continue to receive compensation. This could clearly amount to a significant personal hardship both for him and for his wife and children to whose support he contributes. It is a matter which is not noticed in the submission, though a letter referring to it was attached. The applicant commenced proceedings in the District Court at Sydney on 19 February 1987 seeking substantial damages from his employer. On 1 April 1987, there was filed an amended statement of claim in which he asserted that he was also entitled to an award of damages against the Minister of State for Immigration and Ethnic Affairs of the Commonwealth of Australia on the basis that his condition was aggravated by the negligence of the Minister in a number of respects related to the conditions under which the applicant, as an already injured person, was detained in custody. A ground relied upon in the application is that the Minister ought not by his delegate to make a decision to deport the applicant which would or could have the effect of stifling the applicant's claim against the Minister himself. Notice had been given of that claim shortly before the decisions were made. In view of the conclusion I have reached on another aspect of the matter, it is not necessary to pursue this point at the present stage; but I think there are considerable difficulties in the way of any reliance by the applicant upon it. Under the Migration 4. Act, the Minister has a public duty to perform from which he cannot readily be disabled, though his discharge of it may be made more onerous, by a circumstance of this kind. The aspect of the matter which has caused me concern is the way in which the submission approved by the delegate deals with the applicant's claim against his employer. The submission appears to accept that the applicant may have a claim worth $40,000 to $65,000 for general damages plus a substantial amount of special damages. It is stated: "If Mr. Yoo is not on hand to pursue these claims (i.e. workers' compensation and common law damages) you may consider that he will be disadvantaged. He would not be on hand to instruct his solicitors but would have to suitably brief them before departure. In addition he may not be available to attend any required appointments. Stating the matter at its worst Mr. Yoo's claims could abort if he were absent from Australia." The submission goes on to refer to the decisions in Alpaslan v. Minister for Immigration and Ethnic Affairs (unreported, Keely J., 23 December 1985) and Dallikavak v. Minister for Immigration and Ethnic Affairs (1985) 61 A.L.R. 471, but curiously not to the decision of Lockhart J. in Laremont v. The Minister for Immigration and Ethnic Affairs (unreported, 6 December 1985) or the comparatively recent decision of Wilcox J. in Ertan v. Hurford (unreported, 29 April 1986). Laremont's case has been referred to without any suggestion of disapproval in Mahoney v. Chhinda Singh Dillon (Fox, Beaumont and Gummow JJ., unreported, 19 February 1987). Because of the claim asserted against the Minister himself, it may be said there was a special] duty to be even-handed imposed upon the officers of the department. The discussion of Alpaslan's case in particular makes it clear (see paragraph 25 of the submission) that the delegate considered whether, on the one hand, a decision should be made which would compel the applicant to conduct his proceedings from overseas, or whether, on the other hand, he should permit the applicant to remain for an indefinite period in Australia with a view to the conclusion of his litigation before deportation. But nowhere in the assessment of the applicant's case does the submission expressly indicate that any consideration was given to the making of a decision having an intermediate effect of permitting the applicant an opportunity to obtain an expedited hearing in order to dispose of his claim within a short period, Or at worst an opportunity to obtain medical evidence, to give his own evidence on commission, and otherwise to set his case in order so that it could be prosecuted in his absence. Had the delegate been referred to Ertan's case, he could hardly have overlooked the need to consider this course, to which reference is made by Wilcox J. The decision actually taken, that is to make a deportation order forthwith, would of course handicap the applicant in respect of his proceedings to a very much larger extent than would necessarily be implicit in his being required to leave Australia before a hearing could be obtained in the normal course. A factor which tends to confirm that the delegate did not consider whether the applicant should be afforded an Opportunity to seek an expedited hearing, or to take the other steps I have referred to, is that there is no reference to the 6. questions one might expect to be explored if that aspect of the Matter were under consideration. In particular, it may be said one would expect the decision-maker to balance against a relatively brief prolongation of the applicant's stay in Australia any cost which would be involved, a matter which would require examination of the question whether he could safely be released. There may of course be many factors (as to all of which the submission is silent) suggesting that he might or might not be released. One consideration favouring release would be that in order to pursue his proceedings for damages he must remain identifiable and available. A consideration favouring a grant of a sufficient period to enable an expedited hearing to be had 1s that, if the applicant is deported before the hearing, he will be liable to an order for security for costs which he may have no hope of satisfying: see Seilaz v. Hanson (1800) 5 Ves. Jun. 261; Mool Chand v. Mason (1906) 8 W.A.L.R. 123; but see also Barton v. Minister for Foreign Affairs (1984) 54 A.L.R. 586. If these matters had been considered by the delegate, it may be that he would have reached the conclusion that in all the circumstances the applicant should not be permitted even a short period in which to take appropriate steps in pursuit of his legal claims. On the other hand the delegate might have considered that the hardship to the applicant, in view both of his long term condition and his present incapacity to work, and the possibility that a relatively short delay might enable him to take significant steps in pursuit of his claimed legal rights, in all the circumstances required some delay in the making of a deportation order. But it seems the evidence adduced raises a 7. sufficient case that the question was simply not considered. In my view, at least arguably, the delegate was bound to consider it. Instead, there is a case that he confined himself to the alternatives of a long stay in Australia till the end of litigation conducted according to the normal course, or prompt deportation. Two further matters may be mentioned, but need little discussion at this stage. The first is that the applicant also relies on denial of natural justice, basing himself on the fact that information depreciatory of the applicant's case against his employer was obtained by the Department from the employer and not referred to the applicant for his response. The employer was, of course, a most interested party. The second is that in Ertan's case Wilcox J. said: "There may be occasions upon which it is correct to stigmatize as unreasonable, in the relevant sense, a decision to deport a litigant upon the eve of litigation." Clearly, factors such as those I have mentioned, and particularly any evidence showing that expedition had been obtained or was being vigorously pursued, would be important to the consideration of that ground, in appropriate circumstances. For the reasons I have stated, which of course involve no findings other than upon a provisional basis and for the purposes of the application for interlocutory relief only, I consider the applicant has made out a sufficient case within the well-known principles governing such an application. There 1s no 8. doubt the balance of convenience favours the applicant. I therefore granted interlocutory relief at the hearing, reserving my reasons, which I now deliver. I reserve the costs of the application. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Chere tes Associate Dated: 3 April, 1987. Solicitors for the Applicant: Barlow & Co. Solicitors Counsel for the Respondent: Mr. C. Stevens Solicitors for the Respondent: Australian Government Solicitor