Wah, P.Y. & Ors v Mahoney, J.R. & Anor [1986] FCA 186

JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 1 MAY 1986 WHERE MADE: BRISBANE

2. The applicants pay to the respondents the costs of and incidental to the proceedings to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 ' of the Federal Court Rules.

QUEENSLAND DISTRICT REGISTRY ) QLD G39 of 1986 GENERAL DIVISTON )

BETWEEN: PHANG YOOK WAH PHANG CHIA NGIT LAN PHANG KENG CHUN PHANG YING YING

This is an application by Phang Yook Wah, Phang Chia Ngit Lan, Phang Keng Chun, and Phang Ying Ying for an order of review of decisions that they be deported pursuant to the

provisions of s.18 of the Migration Act 1958, as prohibited

non-citizens. The dates of the deportation orders are not

certainly known as to all of them, but apparently are 23 April

1986 as to the first two applicants, and 30 April 1986 as to the

The applicants are husband, wife, and two children who came to Australia in 1982. They received a temporary entry

permit, over-stayed, and have since lived in this country, and

the parents have worked here. They have apparently been

successful citizens, and the information before me suggests that

On 16 April 1986, acting on what is described as community information, an officer of the department detained the first applicant, and he was interviewed on 17 April 1986. A record of interview 1s before me. On 18 April, on application by the department to a stipendiary magistrate, authority was given

On that day, an application was made to Spender J. to set aside the magistrate's order, and that application was heard on 18 April and 21 April. On the latter day, Spender J. made an order for the release of the first applicant. With the concurrence of counsel for the applicants, I have looked at the papers in relation to that first application and have noted that counsel then acting for the applicant said that the family were willing to leave Australia to go to Hong Kong immediately, and informed Spender J. that the application was brought to allow the applicant a few days' breathing space to organize his affairs in Australia. His Honour remarked during the course of the application:

that they will voluntarily make arrangements to go to Hong Kong."

On 23 April, as I have mentioned, a decision was taken,

so far as the information before me discloses, to deport the

second applicant, and an order was apparently made in respect of

her. There is a copy tendered of the order of deportation in respect of the first applicant. Thereafter, there were some contacts between the department and the applicants and legal advisers. The first applicant apparently changed his solicitor, and on 30 April, I am told - and the matter has been conducted on this basis - that deportation orders were made against the third and fourth applicants. The immediate purpose of the present applications is to obtain a short stay of the deportation orders to enable an application to be brought for an interlocutory injunction on proper material. The longer term purpose is to give the first applicant, who, of course, wishes his family to remain with him in the meantime, some months delay, if necessary, to enable him to sell his business as a going concern. It isa restaurant business which has been closed as a result of the

There was some debate before me as to the proper test to be applied with respect to the first, and immediate, question. Counsel for the respondent urged upon me the view that, in

accordance with the decision of the Full Court in Faingold v. Zammit (1984) 1 F.C.R. 87 and the later decision in Dallikavak v.

The Minister for Immigration and Ethnic Affairs, 61 A.L.R. 471 at

p.478, the court has to inquire whether there 1s a_ serious question to be tried. Counsel for the applicants, however, relied upon cases such as the decision of Toohey J. in Videto v.

The Minister for Immigration and Ethnic Affairs, unreported, 20

"Although reference is made in the papers to an interlocutory injunction, the appropriate relief is an order suspending the operation of the decision of the Minister or staying any proceedings under

Review Act. The analogy of any interlocutory injunction is not necessarily appropriate. "

His Honour then referred to remarks of Jenkinson J. in

"There will be occasions when the exercise of the power is sought at a time when the refusal (or the grant) of a stay will have grave consequences, but it us impossible to form any view as to whether there is such a question to be tried. There will be cases in which the prejudicial consequences for the applicant of refusal of a stay (or for the community of grant of a stay) are of a kind or degree outside the contemplation of those who frame the criteria governing the grant of interlocutory injunctive relief in litigation concerning proprietary and contractual interests."

Toohey J. agreed with the view of Jenkinson J., who adopted the criterion suggested by Keely J. in Perkins v. Cuthill (1981) 52

-»- S-15(1)(a) requires an applicant to satisfy the court that reasons or circumstances exist which

make 1t just that the court should make the order sought ..."

I have also noticed that in Faingold v. Zammit the Full Court

recorded without disapproval that Keely J. had given a short stay

I agree with the contention put forward here that quite different considerations apply with respect to a short stay, the only purpose of which 1s to enable an interlocutory application to be brought on proper material. Here, the applicants have the difficulty that their new solicitor is not fully seized of the matter, having been recently appointed, although he has obviously

been vigorous in pursuit of his clients' interests.

Nevertheless, the circumstances are such as to make it impossible, in my view, to grant a stay. It is not a case where there has simply been no time to apply. I have mentioned that the controversy, if I can call it that for simplicity, started a fortnight ago, and during that time, until yesterday, there was no suggestion that the applicants were unwilling to leave. Both in the interview on 17 April and before Spender J. on 23 April,

Mr. Morley Q9.C., who appears for the applicants, says that the case proposed to be mounted is on the basis of a breach of the rules of natural justice, and refers to the recent decision of the High Court in Kioa v. Minister for Immigration

and Ethnic Affairs 62 A.L.R. 321. He made complaints of a

general character under this heading, observing, for example, that it was not put to the applicants precisely what the authorities had against them. He suggested that they had not an opportunity to answer anything of that sort. I can see the difficulty under which the applicants labour and the possibility that, if reasons are given and the departmental papers are examined, some ground of challenge to the deportation orders may

emerge; experience suggests that that is not unlikely.

There must, however, in my view, be some specific legal basis for applying for a stay of a deportation order. The degree of cogency which the applicant must demonstrate in his attack or foreshadowed attack depends on the circumstances, but, in general, it cannot be right to say that the mere possibility that

further examination of circumstances surrounding the making of a

deportation order will disclose some legal defect 1s sufficient

That is, in essence, the position here. It 1s true that there may be matters which have been considered in making the orders which have not been put to the applicants, but there is no evidence of the existence of any such matters, and I do not think I am entitled to speculate that unanswered allegations of significance underlie the basic case of the respondent, which is simply that there is a power to deport prohibited non-citizens, a

category into which all the applicants admittedly fall.

Putting this more simply, in my view, it cannot be the law that a stay of a deportation order, valid on its face, is to be had simply for the asking, whether for a few days, or evena lesser time. It may, to some, seem unfortunate that the course has been taken of deportating these applicants precipitately but I am far from thinking that that course has been shown to have the slightest trace of illegality. If, on simply suggesting that there may be a breach of the rules of natural justice, or some other vitiating factor, a stay may be obtained, the practical result is that the power of immediate deportation given by s.18 ef the Act has been cut down by judicial decision.

In my view, therefore, the applications cannot succeed

and must be dismissed. . { certify that this andthe J preceding

pages are a true copy of the reasons for judgment herein of His Honour