Bonanno, A. v. Minister for Immigration & Ethnic Affairs [1985] FCA 91

Federal Court of Australia|1985-03-08|Before: Morling J

BETWEEN : ALFREDO BONANNO Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent ORDER JUDGE MAKING ORDER 3 Morling J. DATE OF ORDER 3 8 March 1985 WHERE MADE : Sydney THE COURT ORDERS AS FOLLOWS:

The operation of the deportation order made by

the respondent against the applicant on 2 October 1984 be stayed until 4 p.m. on 22 Macch

) ) NEW SOUTH WALES DISTRICT REGISTRY } No. G50 of 1985 ) GENERAL DIVISTON )

which he has made under the Administrative Decisions (Judicial

Review) Act. In the principal application he seeks a review of decisions that he bea not granted a further entry permit and

The history of Mr Bonanno's entry into and stay in Australia 1s set cut in reports which have been furnished to the respondent by departmental officers. Mr Bonanno, an

Italian citizen, arrived in Australia as a visitor on 10 Mav

81 snd was granted a tempcrary entry vermit for a stay until

10 October 1981. Mr Bonanno is a physically handicapped person having some disability consequent upon having suffered from poliomyelitis. He apparently came to this country az a visitor in the belief that, as a disabled person, he might be granted

On 19 August 1981 he applied for a change of status under s.6A of the Migration Act and his application was supported by a number of persons. However, the Minister tock the view that he did not qualify to be dealt with under 5.6A

Early in November 1982 Mr Bonanno made a much publicised walk on crutches to Canberra to see the former Minister. One of the Minister's staff apparently told Mr Bonanno that sympathetic consideration would be given to an application for an extension of one or two menths of his temporary antry permit to enable him to make departure arrangements. However, no application for an extension was

Between November 1982 and January 1983 a number of representations were received by the Minister in support of a request by the applicant that he be permitted to stay in Australia, but the decision that he should leave Australia was affirméd. In July 1983 the Director of the Enforcement Section

of the Department of Immiacation and Ethnic Affairs proposed to

the Minister that, since Mr Bonanno had ignored requests to depart frem Austcalia since November 1981, it was proposed that an officer should travel to Ballina near where he was living

for the purpose of ascertaining his then circumstances. He was

to be asked to depart voluntarily to avoid deportation, That recommendation was adopted by the Minister and an officer of the Department interviewed Mr Bonanno in Nimbin on 21 December

Mr Bonanno was informed that his application cto remain in Australia had been refused and that he should make departure arrangements and that, failing him doing so, deportation action would be taken against him. Mr Bonanno then said that it was

Apparently some time towards the end of 1984 Mr Bonanno was again interviewed by a departmental officer. Mr Bonanno told him that he had heard that his application to rernain in Australia had been refused but that he had not been advised personally of that decision. He admitted having received a telephone communication frcm the Department that he should depart from Australia. He stated that he had become romantically involved with an Australian citizen, that he did not regard himself as being in Australia illegally, that the Migration Act was irrelevant to him and that he had no

In a report dated 10 September 1984 these facts were brought to the Minister's attention. The report concluded with

"9, Following Mr Bonanno's application for permanent residence in August 1981, his case has

been considered at ministerial level on five occasions and the decision to refuse him residence has been maintained. In November 1982 Mr Bonanno was advised by the former minister's staff that he might apply for a short extension of stay to enable him to make departure arrangements but Mr Bonanno made do application.

Mr Bonanno pursues an itinerant life- style. Nevertheless he was informed by letter on 7.7.83 and personally in December 1983 and August 1984 that his application for residence was unsuccessful and that he should leave

Australia. Mr Bonanno has stated that he has no intention of departing Australia.

il. Mr Bonanno is a prohibited non-citizen and he has committed an offence in becoming a prohibited non-citizen. Mr Bonanno has no

outstanding applications to this department for the regularization of his status. Although it remains possible for his status to Be regularized by the grant of a temporary entry permit, in my view he has not established grounds to justify his continued stay in Australia. Bearing in mind the policy on prohibited non-citizens and taking into account the circumstances of Mr Bonanno as related above, you may decide to order his deportaticn.

I cecommend that you sign the attached order for the deportation of Mr Alfredo Bonanno. "

Thereafter, on 2 October 1984 the Minister signed an erder that the applicant be deported from Australia. Tt 18

proposed that the applicant be deported on Sunday March id,

The applicant claims that he is a disabled person within the meaning of the Declaration on Human Rights of Disabled Persons which is reproduced in Schedule 3 to the Human

Rights Commission Act 1981. For the purpose of deciding this application I shall assume that to be the case. On 6 March a friend of the applicant made a complaint on the applicant's behalf to the Human Rights Commission alleging that the Minister's decision to deport the applicant infringed his human

rights under the Human Rights Commission Act. On 7 March 1985

the Human Rights Commission, acting under s. 9(1)(b) of its Act, resolved to conduct an inquiry as to whether the proposed deportation of the applicant breached any of the principles and rights set forth in the Declaration of the Rights of Disabled Persons. The Commission has decided to conduct the inquiry on

14 March next and has issued a summons to the applicant to

The applicant has been taken into custody and presently remains there. It appears that the Deputy Chairma of the Commission has advised the Department of Immigration and Ethnic Affairs of the Commission's interest in the matter. Initially, the Minister agreed to postpone the applicant's deportation, pending the Commissicn's investigation, However

he has now come to the view that he is not prepared to further

interlocutory relief under s.15 of the Judicial Review Act.

In substance, the relief sought is a stay of the déportation

order, pending the final hearing of the application to this

The proper approach which should be taken by the Court

to applications of this kind has been referred to in other cases on more than one occasion. In Simsek v Minister for

Immigration and Ethnic Affairs (1982) 40 A.L.R. 61, the facts

were that a person whom it was proposed to deport made an application for refugee status to the Committee for Determination of Refugee Status. That Committee had not dealt with the application at the time the application came before the Court. The applicant sought interlocutory injunctive relief to ensure that he was not deported from Australia before the Committee reached its decision, and also to secure his release from custody. In that case, as in the present case, there was no denial that the applicant was a pronibited ammigrant (or prohibited non-citizen, to use the correct terminology) nor was there any contest as to the validity of the deportation ocder. Stephen gd. held that it was necessary for the applicant to make out a prima facie case. He held that if the Minister's power of deportation is to be interfered with an acase where the applicant does not deny that he is a prohibited immigrant he must first make out a prima facie case

for injunctive relief. He cannot rely upon a submis3ion that

deportation would be tantamount to the destruction of the

subject matter of his action, and that he ig entitled to the

grant of an injunction whether or not a prima facie case is

In Collins v The Minister for Immigration and Ethnic

Affairs (26 October 1982), Bowen C.J., unreported) the Chief

dudge said, in relation to an application for a stay ofa

"This involves showing that they have an application on foot which has at least some reasonable prospect of success and showing reasons why a stay should be granted. I do not think that the standards imported from other areas of the law are necessarily applicable in the administration of this Act. Whether s,15 requires an applicant to make out a prima facile case in the sense laid down in Beecham Group Limited v Bristol Laboratories Ptv. Limited 116 C.L.R. 618 or whether 1t is sufficient to show an arguable case as mentioned in Capello v Minister for Immigration and Ethnic Affairs (1980) 2 A.L.D. 1014 might be a question. Each case I think will depend upon its own circumstances in the exercise of discretion."

Notwithstanding the sympathy that I have for any disabled person, and in particular a disabled person who wishes to remain in this country because he feels that his prospects here are better than in his native Italy, I must decide this case in accordance with established legal principle. I must,

therefore, refer to s.5 of the Judicial Review Act to see

Counsel for the applicant arques that there are two bases upon which the case might succeed if it goes to trial. First, it 1s said that the decisions sought to be reviewed were made in breach of the rules of natural justice and that,

therefore, para. 5(1)(a) of the Judicial Review Act applies. TI

have read all the material that has been filed and I cannot see that the applicant has been denied the right to have his case considered. It is clear that over a long period succesive Ministers have carefully and sympathetically considered his circumstances and have considered everything that has been put to them on behalf of the applicant. I am quite unable to see that there is any realistic prospect of the case succeeding on the basis referred to in para, 5(1)(a) of the Judicial Review

Counsel for the applicant also relles upon para. 5(l)(e) of the Act, as expanded by para. 5(2)(b). That is to say, he argues that the making of the decisions in this case were improper exercises of the powers conferred on the Minister because he farled to take into account a relevant consideration. The relevant consideration that counsel claims was not taken into account by the Minister 1s the circumstance that there is pending before the Human Rights Commission the application to which I have already referred. This circumstance, of course, cannot be relevant to a consideration of the validity of the deportation order since that order was made some months before the applicaticn was made to the Puman

I donot think that the argument based upon para. S(1)(e) has been shown to have any real prospect of 3uccéss, nor has it been shown that there is a real question to be tried in that respect. In the first place, it is clear that the Minister is aware of the application to the Human Rights Commission and I think it 1s proper to infer that he has taken it unto account but has nevertheless decided to put the deportation order into effect. Moreover, it seems to me froma consideration of the material which is before the Court that all the matters that will be relied upon by the applicant to

qualify him for consieration under the Human Rights Commission

Act have been considered by the Minister in considering the applicant's position generally. Further, I have considerable difficulty in seeing how the carrying into effect of the deportation order could in any way infringe the provisions of

the Declaration on the Rights of Disabled Persons. In my view

the rights of a person who is a prohibited non-citizen cannot be elevated by the Declaration in such a way as to restrict the

Couns#1 for the applicant has drawn my attention to

the decision of Lockhart J. in Agqbal and Ors. v Hurford (21

December 1984). His Honour there referred to the decision cf

the Full Court of this Court in Kioa v The Minister for

Immigration and Ethnic Affairs (3 October 1984). In that case

the Court held that there was no basis in law for the

concluszon that, by reason of the provisions cf the suman

Raghts Commission Act, the delegate of the Minister was obliged to consider the various rights and principles enunciated in the international agreements referred to in that Act. I am informed that an appeal in Kioa's Case has been heard in the High Court but that as yet no decision has been given. Counsel for the applicant concedes that he can gain no comfort at all from the decision of this Court in Kioa's Case, but he relies upon the circumtances that in Aqbal's Case Lockhart J. stayed the operation of the deportation order on terms that the

application for review be brought on for hearing as a matter of

I think there are valid reasons for distinguishing the present case from Agbal's Case. In the present case I do not think the Minister failed to take into account the circumstance that an application had been made to the Human Rights Commission. He was aware of that circumstance but has apparently chosen not to give it weight. The Minister is not obliged to give any particular weight to the circumstance that

an application has been made under the Human Rights Commission

ct. The mere making of an application does not require the

For the above reasons, if the matter were to reat there, I would dismiss this application in its entirety.

However. a practical problem arises. It is now late on

8 March and it is proposed to deport the applicant on

application should be dismis3ed, I cannet say that it would not be open to the applicant to seek to persuade an appellate court

that my decision 1S incorrect. It will be physically impossible for the parties to obtain a copy of these reasons for a few days since I will be sitting interstate early next week. I do not think the applicant should be deprived of the opportunity of pursuing an appeal because of his inability to obtain a copy of my reasons. If I dismiss the application in its entirety today it would be necessary for the applicant to take steps over the weekend to appeal from my decision if he is advised to appeal. Since the applicant is in custody no harm

can come from a temporary stay of the deportation order.

The order I propose to make, therefore, is that the operation of the deportation order made aqainst the applicant on 2 October 1984 be stayed until 4 p.m. on Friday, 22 March. It is to be understood that unless an order is made before that

time extending the stay, then the stay will terminate,

I reserve the question of costs for further arqument.

At a glance

Court

Decision date

Before

Source

Judgment (83 paragraphs)