Bits IN THE FEDERAL COURT OF AUSTRALTA ) QUEENSLAND DISTRICT REGISTRY ) QLD G84 of 1987 GENERAL DIVISION ) BETWEEN: NEAL THOMAS COOLEY Applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFATRS Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 29 MAY 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application made orally by counsel for the applicant for an interlocutory injunction be dismissed. 2. The applicant pay the respondent's costs of and incidental to the application to be taxed. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. = Hl | - at ° ore mr wetemes ener mee epee og arte ee cate ies ae a Tare end . woe IN_THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G84 of 1987 GENERAL DIVISTON ) : BETWEEN: NEAL THOMAS COOLEY Applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent PINCUS J. 29 MAY 1987 EX TEMPORE REASONS FOR JUDGMENT In this matter, an application is made on behalf of Neal Thomas Cooley, who has not yet filed a formal application but indicated an intention to do so. Counsel appears for him, and relies onan affidavit, which was made today, which discloses that the applicant says he is a citizen of the United States who entered Australia in 1980 and has, for nearly the whole of the time since, lived in this country; that he is in stable employment; that he has a_ stable de facto relationship with one Roberta Perris, whom he intends to marry; that Roberta Perris is currently married but her marriage is soon to be dissolved; that he proposes to apply for Australian citizenship on marrying the lady; that he owns property in this State, and he proposes to establish a business with Roberta Perris; that he is, putting it generally, established in the a ae to erpres ae co emegr tte : wre T wee ge pean - paar sere np me ee ee s7 ot 2 : a eres wee community; that his father is very wealthy and proposes to assist him financially; and that he wants to become fully a member of the community and, indeed, regards himself presently as a member of the Australian community. The affidavit discloses, further, that the applicant was detained on the 13th day of May 1987 and jailed. He asks that he be released but, more importantly, he seeks that a decision to deport him be stayed. The decision is evidenced by a deportation order, which is in evidence, and which reads as follows: "Migration Act 1958 DEPORTATION ORDER WHEREAS NEAL THOMAS COOLEY also known as WAYNE ROBERT WATSON being a non-citizen, entered Australia on the eighteenth day of April 1986 AND WHEREAS the said NEAL THOMAS COOLEY 1s deemed to be a prohibited non-citizen by virtue of sub-section 16(1) of the Migration Act 1958, in that he was not, at the time of that entry, an Australian citizen and who, at the time of that entry into Australia, produced to an officer, in respect of that entry, a passport that was obtained by false representation, and he is not the holder of an entry permit of the kind referred to in that sub-section NOW I, JOHN RICHARD MAHONEY, Assistant Secretary, Compliance Branch, Department of Immigration and Ethnic Affairs, and delegate of the Minister of State for Immigration and Ethnic Affairs, DO HEREBY ORDER, pursuant to section 18 of the Migration Act 1958, that the said NEAL THOMAS COOLEY be deported from Australia Dated this 27th day of May 1987" ape em eee Sere xe a = pen rey sree te ee ree ee @ capper ae oe woe Q It purports to be signed by a delegate of the Minister of State for Immigration and Ethnic Affairs. It seems likely that some apprehension existed on the side of those advising the applicant that this might occur because, on 29 May 1987, Messrs. James Carter and Co., solicitors for the applicant, wrote to the department regarding the applicant and saying, among other things, this: "We refer to the above matter and to our letter of 22nd May, 1987. We quote from paragraph 4 of our letter - 'We foreshadow that we will be making an application to the Federal Court for an order to review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (and necessry Csicj interlocutory relief) as soon as possible after we are informed of the decision and are provided with the reasons. Hopefully we will be able to make this application on Monday 25th instant.'" The same letter went on to ask for a complete statement of the reasons for the deportation order being made. When the matter was called on, Mr. Brandis, counsel for the applicant, was given some documents by counsel for the Minister which, at one stage, were said to be reasons and later said not to be. I told counsel that unless the documents were tendered, I would ignore their existence, and I do so in view of the fact that they were not tendered. I consider the matter on the basis that there is no evidence that reasons as referred to in the letter of 29 May 1987 were given. rece eee tens ar ete ee vata ate a - toad Ve an er ere eeermnne ne earns 3 pany ~ ae Mr. Brandis argues that the deportation which is referred to in the deportation order should be stayed because otherwise the applicant will not have an opportunity to test the legal correctness of that order. He says that if the applicant is deported, as is intended, at 3 p.m. tomorrow, then by no means can he challenge the decision. I do not think that is correct. If a person were unlawfully deported, he could still challenge the decision. It is more correct to say that if a person were unlawfully ordered to be deported and the deportation order were put into effect, it would become inconvenient and expensive for him to challenge the decision, perhaps so much so, for the average citizen, as to make a challenge quite impractical. It is for the reasons of inconvenience and expense that one might be discomforted by the immediate carrying out of a deportation order against the validity of which nothing specific is urged, or can be urged - no detailed reasons for it having been given. The Migration Act 1958 gives power to deport in certain circumstances; the relevant power is here that contained in s.18 which reads as follows: "The Minister may order the deportation of a person who is a prohibited non-citizen under any provision of this Act." Section 20, sub-s.(1), provides: "Where the Minister has made an order for the deportation of a person, that person shall, unless wer wwe: pee we wet ren ee poe . ~ Meee See, Pa ern er ee pee ia the Minister revokes the order, hbe deported accordingly." If Mr. Brandis' contention, which has some attraction from a practical point of view, were accepted, then the mere fact of the making of an application for a stay, in these cases where no reasons have been given, must almost inevitably lead to the exercise of the Minister's power being overriden by the Court. I do not think a proper construction of the Administrative Decisions (Judicial Review) Act 1977 could lead to that result. Nor do [I think, in general, that it is a proper construction of the relevant statutes that the Court should give a stay merely because execution of the administrative decision will, if the challenge to it is pursued, lead to added inconvenience and expense for the applicant. I do not say that there are no circumstances in which the mere filing of an application under the Administrative Decisions (Judicial Review) Act can be a ground for staying an attacked decision. However, it appears to me, as a matter of principle, that in cases of deportation at fairly short notice, without a statement of reasons having been given, it cannot be right, in general, to stay the order upon request. The order will therefore be that the application made orally by counsel for the applicant be dismissed, with costs. 1 certify that this and the 4¢ preceding pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus AEG Associate Dated 27 Max sD wee or Lee Lp enenqenene vse re ned Hy a os ~—