Din, L. v. Honorable John Christopher Hurford, Minister for Immigration & Ethnic Affairs [1985] FCA 270

JUDGE MAFING ORDER 3 Neaves J. 5DATE _OF ORDER : 19 June 1985 WHERE MADE : Sydney of LY THE COURT ORDERS THAT: l. The motion for interlocutory relief be dismissed. 2. The applicant pay the respondent's costs of the motion. Note: Settlement and entry of orders is dealt with in

NEW SOUTH WALES DISTRICT PEGISTRY No. G 139 of 1985

BETWEEN : LEONIDA DIN Applicant AND: THE HONCURABLE JOHN

The applicant, Leonida Din, has applied to the Court by motion for an order which will have the effect of permitting him to enter Australia and remain here until the determination of an application which is pending before the Court for an

order of review under the Administrative Decisions (Judicial

Review) Act 1977 in respect of certain decisions of the respondent described in the application as being decisions

The applicant arrived at Fremantle on 13 May 1985 as a

stowaway on board the vessel "Flinders Bay" which is a British registered ship.

It may be accepted for the purpose of considering the present application that the applicant lived in Romania, his

native country, until some time in 1981. He left Romania with a transit visa for Greece and an entry permit for Egypt. He apparently remained in Greece and in December 1981 was qranted political asylum there. That grant of political asylum was subsequently revoked. In December 1982 he decided he did not

wish to remain in Greece and stowed away ona ship travelling

to South Africa. He was unable to land in South Africa and travelled back to Europe. The ship called at a port in the United Kingdom but, as he did not wish to stay there, he did not seek entry. He was taken off the ship in Hambucq in March 1983. He applied for asylum in West Germany but subsequently withdrew his application as he did not wish to remain there. He went tao Italy and lived there until March 1984 when he

returned to Greece. A second application for asylum there was

rejected, He subsequently returned to Italy. From time to time between 1982 and 1985 he made clandestine visits to Romania. In April 1985 he again returned to Greece and at Piraeus he stowed away on the "Flinders Bay" which called at

ports in France, Spain and Italy before calling at Fremantle.

When the "Flinders Bay" arrived at Melbourne sometime

after 16 May 1985 the applicant was, at the request of the

master of the vessel, taken ashore and kept in custody pursuant

to section 36 of the Migration Act 1958. He was returned to the "Flinders Bay" when 1t left Sydney for New Zealand on 24

May 1985. On 4 June 1985 the vessel returned to Melbourne. The applicant was again taken ashore and kept in custody pursuant to section 36 of the Act. Pursuant to sub-section 36(2) of the Act, the applicant was subsequently placed aboard the vessel "Resolution Bay", also a British registered ship, where the applicant now is. That vessel is due to depart from Botany Bay for overseas vorts at 11.00p.m. today. Pursuant to

section 35 of the Act. the master of that vessel is authorised

to prevent the applicant from entering Australia since it is clear that, if the applicant so entered, he would be a prohibited non-citizen and liable ta be deported. I was informed that the Master has given an «ndertaking to the Court

The applicant applied for permission to enter Australia on the basis that he had the status of a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It was contended on the applicant's behalf that he has a well-founded fear of being persecuted should he return to Romania and is, therefore, unwilling to return there.

Whether the applicant has that fear and, if $0, whether it is

well founded is not a matter for this Court to consider and I

express no view upon ut. The application was refused by the respondent and that vefusal was confirmed by him after

In addition to refusing the applicant refugee status, the respondent treated the applicant as having applied for an entry permit and a temporary entry permit. The applicant was refused either a temperary cor a permanent entry permit. The

applicant was supplied with a statement under section 13 of the

Administrative Decisions (Judicial Review) Act 1977 as well as

copies of the material which was placed before the respondent

and upon which the decisions referred to were made.

It was submitted on behalf of the applicant that the making of the decisions the subject of the application for review was an improper exercise of the power conferred by the Migration Act 1958 by reason of the fact that the respondent, in the exercise of the power, took irrelevant considerations into account and failed to take relevant considerations into

account. These grounds have the1r foundation in paragraph

5(1)(e) of the Administrative Decisions (Judicial Review) Act

Before considering those submissions it 1s important to note that the relief that the applicant now seeks is not relief designed to preserve the status quo. What he, in

effect, seeks from the Court is relief which will result ina

change in the status which he now has of being a person who has not yet entered Australia. His arrival in an Australian port on board the véssel the "Flinders Bay" did not amount to entry into Australia within the meaning of that expression in the Migration Act 1958 and by virtue of sub-section 36(4) of that Act the fact that he was taken ashore pursuant to sub-section 36(1) does not deem him to have entered Australia for the purposes of that Ach. Any relief which the Court might now grant would result in the applicant entering Australia and acquiring the status of a prohibited non-citizen or a person having a temporary entry permit. It may be said, at once, that the applicant has a heavy onus to discharge in convincing the Court that it should by appropriate orders bring about that

The matters which the apyolicant says the respondent took into account but which were irrelevant to the exercise of

(a) that the applicant is aboard a British registered ship and is, therefore, not

(b) that there was a responsibility on the United Kingdom to ensure the applicant's protection if such protection were

(c) that the applicant, having been informed in Athens that any application for entry winto Australia should be made through the proper channels, had not so

The matters which, it was said, the respondent should

(b) that unless a temporary entry permit be granted to the applicant, his application' cannot be properly investigated and the usual procedures, including consideration by the interdepartmental committee known as the Committes for Determination of Refugee

It was submitted that the above matters showed that there were serious questions to be determined on the hearing of the substantive application such that the Court should intervene to prevent the departure of the applicant from Australian waters. It was also submitted that the balance of

convenience dictated that such relief should be granted.

To support the ardument on the balance of convenience the applicant submitted that no cogent reasons had been shown why it was not appropriate for the application for refugee status to be dealt with in accordance with what were called the usual procedures involving consideration by the committee to which I have referred, that there were humanitarian reasons for allowing the applicant to disembark from the vessel on which he now is and that the applicant's absence will present difficulties in the further conduct of the substantive

interim relief. It was also submitted that the decision taken by the respondent to refuse to grant the applicant refugee status was not, in the circumstances of this case, a decision "under an enactment" so as to attract the Court's jurisdiction

under the Administrative Decisions (Judicial Review) Act 1977.

However, in the view which I have taken it is unnecessary

before the respondent and upon which the decisions the subject of the application for review were made, I am not satisfied that the applicant has a sufficiently arguable case to warrant the intervention of the Court by way of interlocutory relief. In particular, I am not satisfied that there 15 an arguable case that the respondent took into account irrelevant matters

or failed to take into account some essential aspect. The

material before the respondent included reports of an interview conducted by Commonwealth officers with the applicant and the material which had been made available by the applicant's solicitors. I am unable to conclude that the applicant is likely to succeed in showing that the respondent failed to take that material into account. The weight to be attached to it

In any event, the balance of convenience does not dictate that the applicant should be allowed to enter Australia with the consequent change of status to which I have referred. I can discern no sufficient reason why the status quo should not be maintained, that situation having arisen by reason of the applicant's own conduct and being a situation where there

The motion for interlocutory celief will be dismissed.

The applicant must pay the respondent's costs of the motion.

I certify that this and the preceding 8 pages are a true copy of the Reasons for Judqment herein of the Honourable Mr Justice Neaves.