A . TARY, JUDGMENT No. &O.7.58. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION ) ~ QLD G17 of 1988 BETWEEN: JAGDISHWAR LAL First Applicant AND: SHAMINA BIBT Second Applicant AND: ANTHONY CLEMENT HARRIS First Respondent DEPARTMENT OF IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS Second Respondent 19 FEB 1988 FEDERAL GOURT, CE AUSTRALIA PRINCIPAL REGISTRY MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 9 FEBRUARY 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application for interlocutory or interim relief be dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. a energies ee ' 7 . sete . my A tree ae pe eee ' : IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G17 of 1988 GENERAL DIVISTON ) BEIWEEN: JAGDISHWAR LAT First Applicant AND: SHAMINA BIBI Second Applicant AND: ANTHONY CLEMENT HARRIS First Respondent AND: DEPARTMENT OF IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS Second Respondent PINCUS J. 9 FEBRUARY 1988 EX TEMPORE REASONS FOR JUDGMENT In this matter the applicants seek as principal relief review of a decision that they be deported. In the meantime, they ask for a stay until trial, or alternatively, a stay for a brief time. The applicants came to Australia from Fiji with their two children by airplane on 27 August 1987. They arrived in Sydney, holding tickets for travel to India, and obtained a visa until the following day, to make their flight connection. rT ITo.. Instead of leaving as was contemplated, they remained in this country. On 24 September, they lodged through a solicitor an "Application for Resident Status in Australia". According to exhibit "A" to the affidavit of Mr B.T. Henry, which is before me, some application was made of (perhaps) a similar kind in June 1987, in Fiji, but rejected. On 30 September 1987, the applicants were interviewed by an officer of the relevant department. They then produced a statement by the first applicant which was sought to be incorporated in the application for residence made on 24 September. On 3 February 1988, their solicitor received a letter from the department, addressed to his clients, and reading as follows: "Dear Mr and Mrs Lal I refer to your status in Australia as prohibited non-citizens since the expiry of your entry permit on 28 August 1987 and your application for the grant of permanent resident status lodged with this office on 24 September 1987. The full details of your claims, along with the policy on prohibited non-citizens were put before the Deputy Secretary of the Department recently. In making his decision the Deputy Secretary has summarised his findings as follows: 'Clearly the applicants have adversely been affected by the Fijian coup - rather more affected than most Fijian Indians. Nevertheless the traumas they have suffered have been the result of random attacks by militant ethnic Fijians. There is no evidence that they have been singled out either by that group or the regime. Indeed, information provided indicates that the then Governor-General and Colonel Rambuka did not approve of arson and Colonel Rabuka [sicJ sought to reduce its incidence. It is acknowledged that the applicants would be significantly advantaged by the grant of an unconditional entry permit not limited as to time. However, their situation in Fiji does not qualitatively differ much from a large number of their fellow ethnic citizens. That they have no house or booth is a severe blow to them but they do have family in Fiji and overseas who could help if they chose to. Given that I do not judge that they have humanitarian or special strong compassionate factors such as warrant the grant of an unconditional entry permit not limited as to time, I do not hold that they have a reason to remain in Australia. They have no means to return to Fiji and in view of that and other factors noted here I order their deportation. ' Deportation orders were signed on 28 January 1988 and copies of those orders are enclosed. Your two daughters are expected to accompany you on your departure at government expense. You are directed to visit this office within seven days to discuss travel arrangements and to commence proceedings to obtain current travel documents if you have not already done so. I have enclosed a second copy of this letter for the records of the South Brisbane Community Legal Service Inc." Some matters in that letter require explanation. The reference to the applicants having no house or booth is derived from the statement of the first applicant, to which I have referred above, and which explains that inthe racial troubles in Fiji, the applicants' house was destroyed, their souvenir stall was overturned, and the stock thrown about. The reference to humanitarian or special strong compassionate factors is derived from the Migration Act, s.6A(1)(e): pesos "An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say - (e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him." The reference to the applicants having no means to return to Fiji is also derived from the material which was placed before the department. Counsel for the applicants, Ms. Holmes, says a stay should be granted for a number of reasons, of which she relied chiefly upon three. Of those, two are criticisms of the summary of findings quoted in the letter set out above. It appears to be suggested that there is an inconsistency in those findings, in that they assert that the applicants' situation in Fiji "does not qualitatively differ much from a large number of their fellow ethnic citizens," whereas the letter itself shows, as does the material, that that is untrue. The letter concedes that the applicants have been "rather more affected than most Fijian Indians" by the coup. The argument runs that this inconsistency constitutes legal error, at least arguably, of such a kind as to warrant the grant of a stay. The weight of the contention seems to me to depend on the precise meaning one gives to the word "qualitatively". The letter reflects a view of its author that, although the applicants appear to have been more severely affected by the coup than most - other Fijian Indians, that is not suggested to have been the we een soaé ss ener result of anything other than their race. They have been randomly attacked - so the author appears to be saying - and not specially persecuted. Some may think this rather a hard line to take, in respect of applications of this sort made by victims of racial prejudice, but I cannot see that it is reasonably arguable that there is a logical inconsistency in it. The authorities are now clear that a Court is not entitled to set aside administrative decisions merely on refined considerations of the precise language used. One, in short, should not be too pedantic in considering the phrasing of the reasons, and, in my opinion, what the author of the passage referred to was saying is clear enough, whether or not one agrees with 1t as a matter of policy. The second criticism of the letter referred to is related to the first, and that is that it, irrelevantly, refers to the situation of other persons. Ms. Holmes argued, in effect, that whether or not other persons might have good grounds for special consideration under s.6A(1)(e) of the Act, the applicants' case must receive its own consideration. Again, I cannot, with regret, see that the submission has any real substance. Paragraph (e) itself contemplates that there may be, in some cses, a comparative exercise involved, in that it uses the relative expression "strong", which necessitates looking at the case of the applicants for consideration as compared with that of other possible or actual applicants. It is true, in my view, that the letter implies that if the misfortunes of which the applicants complain were unique or extremely unusual, their case would have more weight, but in my opinion that is plainly so. I cannot see that a decision-maker, considering a matter under the paragraph in question, must refrain from looking at such questions of degree as whether the ill-treatment or other disadvantage of which an applicant complains, is, in his or her home country, very unusual. One could readily understand the merit of a government policy that people who are sufferers of irrational attacks on racial grounds should, ipso facto, receive special consideration under para.(e). But it does not seem to me to be open to hold that a failure to adopt and apply such a policy is unlawful, nor to hold that a view, implicit in the letter I have referred to, that if the applicants had been especially mistreated in a purposeful way their case would be stronger, is necessarily wrong. The last main matter raised by Ms. Holmes is whether relief should be granted on the ground that the applicants wish to raise a case that natural justice was not accorded then. The respect in which natural justice is said not to have been accorded is that the only interview granted was one relating to the question of deportation or no. The interview was recorded and it is not suggested that the record is inaccurate. Counsel for the respondent, Mr O'Gorman, points out that the record contains reference to the application for resident status and the statement made in support eee + of it. The essence of the point made by Ms. Holmes appears to be the evidence which is before me that there is quite another procedure used elsewhere in respect of applications for resident status, namely that an appropriate officer is designated to and does conduct an interview specifically with respect to that application. That that procedure is followed elsewhere does not seem to be disputed; it was not followed here. On the other hand, there is nothing in the material to suggest that the decision which was ultimately made was defective for lack of proper consideration of the application for grant of resident status. The application is referred to in the first sentence of the letter, and, on its face, the circumstances put forward by the applicants in the statement were considered. Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321 was referred to as authority for the view that natural justice must be accorded to persons such as_ these applicants, and I have been somewhat troubled as to the question whether any case has been made that the requirements of natural justice have not been satisfied. I have been unable, however, to think of any reason why it should be held that it is legally necessary that there be an interview specifically directed to the application for resident status. The department here seems, in its disposition of the matter, to have relied on and assumed the truth of the statement produced in the interview. That does not seem to have been an unfair course. It may be (one does not know) that the applicants might have been able to put their case more persuasively, orally, if they had been granted an interview specifically directed to their application for resident status, aver but I do not consider that it is seriously arguable that the grant of such an interview was essential to the proper and lawful disposition of their case. The principal application contains five grounds - that is, two grounds in addition to the three which were principally put forward. Ido not think it necessary, however, to make specific reference to the other two grounds, which were discussed briefly at the hearing but do not seem to me to have any substance. The applicants, alleging themselves to have been subjected to ill-treatment in a foreign country, have attempted to migrate to this country, in the reasonable belief that Australia holds out better hopes for them and their children. It cannot be doubted that they have a case on compassionate grounds, but it has been put forward, considered, and rejected, the grounds of rejection appearing summarily but clearly enough, from the letter from the department. There does not appear to me to be any substantial argument available as to the legality of the grounds of rejection, or the legality of the process whereby the decision adverse to the applicants was arrived at. The application for interlocutory or interim relief will therefore be dismissed. 1 certify that this and the 4 preceding pages aré a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus ot A bigs Associate Dated 9 Fetyuary 1988 wae aera