awd LIMITED DISTRIBUTION : \4 CATCHWORDS ADMINISTRATIVE LAW - Unreasonable exercise of power by administrative officer. IMMIGRATION - Stay of execution of deportation order - Prohibited non-citizens - Refusal to grant temporary entry permit and decision to execute deportation order. Administrative Decisions (Judicial Review) Act 1977: s. 5. CLARO CRUZ and CLEOME CRUZ v. MICHAEL YOUNG, MINISTER OF STASE FOR IMMIGRATION AND ETHNIC AFFAIRS G 463 of 1987 LOCKHART J. 23 SEPTEMBER 1987 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 463 of 1987 ) ) GENERAL DIVISION BETWEEN : CLARO CRUZ and CLEOME CRUZ Applicants AND: MICHAEL YOUNG, MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE MAKING ORDER: LOCKHART J. DATE OF ORDER: 23 SEPTEMBER 1987 WHERE ORDER MADE: SYDNEY MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The application be dismissed; 2. There be no order as to costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of | the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 463 of 1987 ) GENERAL DIVISION ) BETWEEN: CLARO CRUZ and CLEOME CRUZ Applicants AND: MICHAEL YOUNG, MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent 23 September 1987 REASONS FOR JUDGMENT LOCKHART J. The applicants seek a stay of execution of a deportation order made by Mr. Michael Young, Minister of State for Immigration and Ethnic Affairs, under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The applicants, Claro and Cleome Cruz, are husband and wife and they are residents and citizens of the Phillipines. They have four children, the ages of whom are not clear from the evidence but I gather from what has been said that they are young, though two sons are of an age where they are capable, it seems, Of working to earn money, assuming employment can be found. Because arrangements have been made to return them, the applicants and their children, to the Phillipines in less than one hour from now, I shall make my observations brief. The applicants have an unfortunate migration history in that they entered Australia initially in 1984 and were later deported from Australia. They then sought to re-enter this country at a time which is not clear from the evidence but it seems to be relatively recent. They did so under false passports and without disclosing the fact of their previous deportation from this country. Consequently, they were charged with offences under Commonwealth law and sentenced to terms of imprisonment. Those terms have been served. The male applicant, Claro Cruz, was arrested on 9 May, 1987, and in the course of arrest apparently jumped out of a third storey window and suffered very severe injuries to his right femur. and leg. There are medical reports in evidence that he has since received extensive medical treatment and at this stage he can only walk with the aid of medical supports, be they crutches or, as seems more likely, some form of metal or steel frame. Mr. Cruz still requires further medical treatment for his injuries as work still remains to be done, it seems, to get his leg in whatever shape it can be put into for the future. Whether he will suffer permanent injuries to his leg or not, I know not, although the evidence does rather suggest that he will. The Minister, by his delegate, ordered the deportation of the applicants on 23 August this year. Thereafter, the solicitor for the applicants made attempts to obtain information from the Department of Migration and Ethnic Affairs relating to the written material that had been put before the delegate of the Minister supporting the making of a deportation order. Representations were made to the effect that the 3. medical condition of the male applicant was such that it was wrong that he be deported from this country at least until his medical treatment had been completed here and he was fit to travel. As a matter of urgency, I gave leave for an application for review under the Judicial Review Act to be filed in court this morning and have heard evidence and argument in relation to it. The applicants challenge the deportation order itself on the basis that it was an unreasonable exercise of power in terms of s. 5(2)(g) of the Judicial Review Act in that no reasonable administrative officer could have reached such a decision in the light of the medical evidence as to the male applicant. It is also alleged that the Minister's delegate predetermined the position of the male applicant and ordered his deportation having regard to some fixed and invariable policy applicable to prohibited non-citizens and without regard to the merits of this particular case. It is apparent from the evidence - flimsy though it is at this stage - that the medical condition of the male applicant was before the department and its officers at all relevant times. Whether or not the Court, if it were making the decision that has been made in this case faced with the same material that was before the delegate would have come, as a matter of fact, to the same decision as the delegate did, is not the question that is before this Court. This Court is here as a court of law and a court of law only to see if error of law has occurred in the sense in which error of law has been expressed in legislative terms in the Judicial Review Act, in particular, s. 5. So far as the deportation orders themselves are 4. concerned, I cannot see that any reasonable arguable case has been advanced to support error on the part of the decision maker. I turn then to the next question, which is what is said to be the decision by the Minister made on or about 22 September 1987 to execute the deportation order of 23 August 1987, and the decision which it is said to follow to refuse to grant a temporary entry permit. Such decisions made by the Minister are capable of review under the Judicial Review Act. Judicial review of such decisions is a subject of debate. It is inappropritae to examine that question today so I act on the assumption in favour of the applicants as I have. It is said that this decision constitued an unreasonable exercise of power under s. 5(2)(g) of the Judicial Review Act, again on the basis that no reasonable administrative officer would have ordered the execution of the deportation orders as to the male applicant or indeed the female applicant whilst the male applicant was in the physical condition that he is. It is also said that that decision had paid insufficient weight to the male applicant's medical condition. Whilst no-one likes to see people who suffer physical infirmitites such as the male applicant obviously does, put to the ordeal of boarding aircraft, landing in countries and receiving unknown treatment at the hands of migration officials at the other end and things of that nature, it is not the function of this Court to do other than see if, on the material before it, it could be said that there is some reasonably arguable point of law in favour of the applicants. Having thought hard about the matter, I have come to the conclusion that no such reasonable case has been established. This is a matter which I think is not one in which the court can intervene and not one in which it should intervene. Accordingly, I refuse the application for review and the immediate injunctions sought by the applicants to stay extention of the deportation order pending the applicants seeking leave to appeal. I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart. Associate RY ogee Date: 23 September 1987