D2" (NOT FOR PUBLICATION) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G347 of 1987 GENERAL DIVISION EX TEMPORE JUDGMENT Between: PERIANNAN MURUGASU (Applicant) And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (Respondent) Coram: Ryan J. Date: 4 August 1987 EX TEMPORE REASONS FOR JUDGMENT RYAN J.: This is an application by notice of motion for an injunction restraining the respondent from removing the applicant from Australia until the hearing of an appeal by the applicant against an order of Wilcox J. on 28 July 1987 dismissing an application for review under the Administra fe é Decisions (Judicial Review) Act 1977 ("the Act") £7 two é\ TT IN RECEIVED 5 i 42 AUG 1987 FEDERAL COURT GF AUSTRALIA RINCIPAL raryacisny decisions affecting the applicant. ite) The first decision was to refuse to issue a te entry permit to the applicant. The second decision wass Solel neietaemenen tamnes pee tamanaats pe ere ee ee eer i oay ye fey ay oy Ve owe wwe ae eri Coane ard Sarg me en a ? . 7 y _ ' the effect that the applicant does not have the status of a refugee within the meaning of the Geneva and New York Conventions. On 29 July 1987 a notice of appeal on behaif of the applicant was lodged in court, but because the applicant did not have the means to pay filing fees and a request for legal aid for the prosecution of the appeal had not at that time been considered, the notice of appeal has not yet been filed. The notice of appeal as lodged specifies the following three grounds: "1. His Honour fell into error in finding that the appellant had not been denied natural justice. 2. His Honour fell into error in finding the policy instruction No. 1330 did not apply to the applicant. 3. His Honour fell into error in finding that the applicant was not a refugee within the meaning of s.6A(1)(c) of the Miqration Act 1958 as amended." The orders sought in the notice of appeal, apart from the interlocutory order which is the subject of the application presently before the Court are: "(b) A declaration that breaches of natural justice had occurred in relation to the making of the decision of 2 June 1987 by Denis Richardson. (c) That the matter to which the decision of the delegate of 2 June 1987 related be referred to the respondent for further consideration in the light of the above declaration." To . vo iner- wee ok ene ve wee eer me ae ete na a seine meme ore ne The decision of the Delegate to the Minister to which those orders are directed was communicated to the applicant by letter dated 2 June 1987, which was in these terms: "I vefer to your application for refugee status in Australia. Your application for refugee status has been examined carefully by the determination of refugee status (DORS) committee comprising representatives of the Department of Immigration and Ethnic Affairs, Foreign Affairs, Attorney- General''s Department and Prime Minister and Cabinet. The representative of the United Nations Hich Commissioner for Refugees participates as an adviser to the Committee. The DORS Committee recommended against the granting of refugee status to you. This decision was taken following consideration of detailed advice and information available to the committee concerning the general situation prevailing in Sri Lanka and your known particular circumstances in that country as they related to your claims for refugee status. The Minister's delegate has endorsed the Committee's recommendation and it has agreed that your application for refugee status in Australia must be refused." Although, as I indicated, the orders which by the notice of appeal as lodged are sought to be substituted for the order of Wilcox J. are directed to what his Honour identified as the second decision to refuse to accord to the applicant the status of a refugee, I have been informed from the Bar table by Mr. Wood of counsel, who now appears for the applicant, that it is desired to amend the notice of appeal as lodged to direct grounds of appeal to what his Honour identified as the first decision to refuse the applicant a temporary entry permit. The applicant's solicitor on 31 July 1987, deposed that at the time of swearing his affidavit, a copy of Wilcox J.'s od ope coe ve wr et ee ar nee 5 " - Gene penaee epet tie ce ee reasons for judgment on 28 July 1987 had not then been made available to the applicant or his advisers. I was further informed from the Bar table that a copy of those reasons was only made available to the applicant's legal advisers this afternoon, shortly before the application before me commenced. Accordingly, Mr. Wood has been embarrassed in seeking to argue or to demonstrate that the applicant has an arguable prospect of success on the projected appeal. It was that embarrassment which led Mr. Wood to seek only an injunction until some time next week when his Honour''s reasons for judgment could be fully considered and particularly by counsel who appeared for the applicant before his Honour and who will not be available to advise the applicant until that time. It further appears from the affidavit of Mrs. Frankham, the applicant's solicitor, that legal aid has been granted to obtain counsel's opinion on the merits of the proposed appeal by the applicant, which opinion will be a factor in determining whether or not legal aid is granted to the applicant to pursue his appeal. My attention was directed by Mr. Daley who appeared as solicitor for the respondent to a judgment, - again of Wilcox J., in Pere Rojas Minister for Immigration and Ethnic Affairs (unreported 12 November 1986) in which his Honour considered that the' approriate test to apply on an application such as this for an injunction pending an appeal by an appellant under' threat of deportation or removal from this country, is to ask whether the judge hearing the application would be persuaded to grant leave to appeal if 1t were a case 1n which leave to appeal would be required. Reference was also made to another judgment of this court in Sheung v. The Minister for Immigration and Ethnic Affairs, a judgment of Gallop J. in which, I was informed, his Honour applied the test enunciated by Wilcox J. in Rojas' Case. However, as I indicated in the course of argument, the difficulty which presently faces the court in applying that test is that counsel for the applicant has been unable, because of the shortness of time after Wilcox J.'s reasons for judgment became available and his own lack of familiarity with the matter, properly to address that question and to indicate the basis on which the appellant could satisfy the test suggested in Rojas' Case. In all of those circumstances I consider that it would be undesirable for me to express any view as to whether the applicant can demonstrate an arguable prospect of success on the appeal. One of the reasons why that would be undesirable is that it would pre-empt consideration by the legal aid authorities of the applicant's request for legal aid in the light of the opinion to be obtained in the near future, as I have been advised, from counsel who was originally retained in the matter and who appeared for the applicant at first instance. I therefore consider that the appropriate course is to grant a limited injunction until a time next week which will pw een aan "poo permit a proper analysis to be undertaken of his Honour's reasons for judgment and counsel's opinion to be obtained either from counsel originally retained in the matter or from Mr. Wood or other counsel afforded a a proper opportunity for reflection and research. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Ryan. Dated: ¥ Fegery -pL7. OS wm? NG Associate te sgrens inca Saran Same