Adhi, B.L. v Minister for Immigration & Ethnic Affairs

[1993] FCA 683

BILLY LUDWIG ADHI v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG650 of 1993
FED No. 683
Number of pages - 7
Immigration and Aliens

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
GUMMOW J

CATCHWORDS

Immigration and Aliens - deportation order - prescribed matters - natural justice - opportunity to show cause not given by reason of miscarriage of administrative procedures.

Migration Act 1958, s. 60

Migration (1993) Regulations

Administrative Decisions (Judicial Review) Act 1977

HEARING

SYDNEY, 2 September 1993

#DATE 8:9:1993

Counsel and solicitors Mr S.J. Gageler instructed
for the applicant: by Tzovaras and Company.

Solicitor for Mr Paul Roberts instructed
the respondent: by the Australian

Government Solicitor.

ORDER

The Court orders that:

(1) The decision of 14 July 1993 to make a deportation order against the applicant under s. 60 of the Migration Act 1958 be set aside.

(2) The respondent pay the costs of the applicant, including any reserved costs.

(3) The application is otherwise dismissed.

(4) The respondent procure the release from custody of the applicant forthwith.

(5) The orders be entered forthwith.

Note: Settlement and entry of orders is dealt with by Rule 36 of the Federal Court Rules.

JUDGE1

REASONS FOR JUDGMENT (ORAL)

GUMMOW J In this Court the applicant has been represented by solicitors and his case has been well put by able junior counsel. But at the outset it must be said that the occasion for this litigation may well not have arisen were it not for the apparent failures of lay "advisers" promptly to perform the tasks for which they had been paid. The Court was informed that as things now stand, the regulatory scheme established by the Migration Amendment Act (No 3) 1992 will apply to such activities.

1. This proceeding concerns a deportation order made under sub-s. 60 (1) of the Migration Act 1958 ("the Act"). The order was made against the applicant, Mr Adhi, by a delegate of the respondent on 14 July 1993. Mr Adhi applies under the Administrative Decisions (Judicial Review) Act 1977 for judicial review of the decision of the delegate to make the deportation order. The permanent relief he seeks, as appears from the amended application filed in Court on 2 September 1993, is for orders that (1) the decision of the delegate which I have mentioned be set aside as null and void and (2) that the decision of the delegate to refuse to grant to the applicant an entry permit be set aside as null and void. The decision there referred to is a decision said to have been made on or about 19 August 1993 to reject an application of Mr Adhi made on or about 20 March 1933 for the grant to him of an entry permit under the act.

2. Mr Adhi was born on 18 April 1972 in Indonesia. He first entered Australia on 14 December 1985 at the age of thirteen. Mr Adhi was travelling on his mother's passport and arrived with his parents. His entry permit was for two days until 16 December 1985. He is an illegal entrant as things now stand (see s. 14 of the Act). He has remained in Australia since the expiry of his entry permit in 1985.

3. In March 1989 Mr Adhi commenced employment in Sydney as an electrical goods manufacturing trainee with Email Training Services Pty Limited ("Email"). He was employed by this company until his arrest and detention on 9 August 1993. He became an electrical fitter mechanic apprentice in January 1990 and attended courses at Bankstown TAFE from 1990 to 1992. Mr Adhi performed extremely well in these courses. The evidence includes letters from various supervisors and managers at Email which indicate that he has been an exemplary employee. I refer in particular to the letter from Mr Richard Winter, the Training Manager for New South Wales at Email to Mr Adhi's solicitors, dated 25 August 1993. The writer there states that he feels it would be a great loss to Australia and to Email if Email were to lose the applicant's skills and competencies for which both he and Email have worked so hard to achieve.

4. Mr Adhi gave evidence that some time in 1989 he ceased to reside with his parents at Flat 11, 96 Sproule Street, Lakemba, New South Wales, and commenced to reside at 8 Tennant Place, Edensor Park. His parents continued to live at Flat 11, 96 Sproule Street, Lakemba until September or October 1992. His parents then moved to another address. Mr Adhi lived at 8 Tennant Place until 26 December 1992. He then moved to Flat 3, 96 Sproule Street, Lakemba. He continued to live at that address until his arrest on 9 August 1993. In October 1992, Mr Adhi's parents left Australia. They had been arrested and held in detention for a week before their departure.

5. On 21 October 1992 Mr Adhi lodged an application for an extended eligibility temporary entry permit and an application for a permanent entry permit after entry, through a migration agent, Amhurst Migration Services. Mr Adhi gave his address as 8 Tennant Place, Edensor Park, 2176. It also was stated on the application form that Mr Adhi's employer from July 1988 to date had been Email Westinghouse of Joynton Avenue, Waterloo, New South Wales. Both applications were refused. Mr Adhi was notified of this by letter dated 19 January 1993 sent to his agent, Amhurst Migration Services, and to the Edensor Park address.

6. At this point it should be noted that by virtue of sub-s. 37 (2) of the Act, Mr Adhi was not entitled to make any further application for an entry permit unless (a) there had been a prescribed change in his circumstances since he last applied for an entry permit and (b) no deportation order under s. 59 had been made in respect of him. However, when considering Mr Adhi's second application for an entry permit, this time a Class 812 entry permit, lodged 13 August 1993, the respondent's department ("the Department") conceded that there had been a prescribed change in circumstances under reg. 2.10 (f) of the Migration (1993) Regulations ("the Regulations").

7. This was recorded in the formal decision record which was sent to Mr Adhi on 20 August 1993. I have therefore proceeded on the basis that Mr Adhi was entitled to make a further application for an entry permit. On 20 March 1993, following the receipt by Mr Adhi of the letter dated 19 January 1993 from the Department, Mr Adhi attended another immigration agent. This firm was known as Hardy's Immigration Professionals. He attended the offices of that business on a number of occasions to assist with the completion of his application form. Mr Adhi was told that the fees payable were $50 for the first consultation, $1000 to prepare and lodge an application and another $1000 on receipt of the response from the Department. In the event he paid a total of $1050.

8. On or about 3 April 1993 Mr Adhi was informed by a Mr Lee that his application was complete and would be forwarded by Hardy's Immigration Professionals to the Department for consideration. In fact the application form was not lodged until 13 August 1993. In the meantime, as I have mentioned, much had happened. A deportation order was made on 14 July 1993. Mr Adhi was arrested and placed in detention on 9 August 1993.

9. As will be apparent, the application to the Court has received an expedited final hearing. The proceeding here was commenced with an ex parte application shortly before 21 August 1993. It appears that Mr Adhi had no knowledge of the intention of the Minister to issue a deportation order against him prior to the issue of the order on 14 July 1993. His contention is that if he had received notice of this intention before 14 July 1993, he could have ensured that his completed application form was lodged with the Department and that this happened prior to the Minister or a delegate considering whether to deport him.

10. Had he done this, or had his advisers done in April what they then had said they would do, sub-reg. 7.15 (d) would have made the pendency of the application a proscribed matter for consideration before the making of the deportation order.

11. On 18 May 1993 a form was generated in Mr Adhi's immigration file in the Department headed, "Compliance Check List - Parramatta". Item 6 on that form is titled, "Last Known Address (show folio)". Next to that is written, "F64: 8 Tennant Place, Edensor Park". Item 8 on the form is titled, "Last Known Phone Number". Next to that is written "F67: H: 759 4584". Underneath the phone number is written the following, "02 confirmed. Terry check Unit 3/96 Sproule Street, Lakemba." Mr Michael Crighton, an officer in the compliance branch of the Department at Parramatta, who had dealings with Mr Adhi's file, gave evidence. He explained that the words, "Terry check Unit 3/96 Sproule Street, Lakemba" appeared on the form in the following circumstances.

12. On 24 May 1993 Mr Crighton wrote to Mr Terry O'Loughlin of the Australian Bureau of Criminal Intelligence requesting information concerning 23 people, including Mr Adhi. On 27 May 1993 Mr O'Loughlin replied to this request stating that Mr Adhi's address was, "Unit 3, 96 Sproule Street, Lakemba, 2195". Mr Crighton told the Court that the notation on the compliance checklist was inserted after information had been received from Mr O'Loughlin.

13. He explained that the term, "Terry check" is a colloquial term which in effect refers to the seeking of information from Mr Terry O'Loughlin. In Mr Crighton's affidavit the following paragraph appears:
    

"The address disclosed by the 'Terry check' was not followed up or visited for several reasons:

(i) the file was already being dealt with as a "whereabouts unknown" file and it was planned to advertise the Minister's intention to deport;

(ii) the address was outside (the) Parramatta office area. It is not the usual practice to follow up an address outside the area due to constraints on resources and the possibility that the address is incorrect in any event;

(iii) the last known address was at Edensor Park and the file disclosed that the applicant had previously lived at Sproule Street, Lakemba and this address was regarded therefore as an old address."

Mr Crighton goes on to say, in para. 9:

"In any event the Minister's intention to make a deportation order in respect (of) the applicant was subsequently published in the Parramatta Advertiser of 16 June 1993 and the Australian Newspaper on Saturday 12 June 1993 in accordance with regulation 7.2 of the Migration (1993) Regulations."

1. Mr Adhi put into evidence a page of the 1993 Sydney White Pages. There is an entry in the following terms, "Adhi B.L. 96 Sproule, Lakemba, 759 4584". Although there was no evidence as to when this issue of the White Pages was available to the public, it was not disputed that Mr Adhi provided the information to Telecom in December 1992. It should also be noted that the telephone number in this listing is the same as the number appearing on the compliance checklist to which I have referred.

2. Mr Crighton gave evidence that the Department did not usually make inquiries from Telecom Directory Assistance. This was because the listings only contained a surname and initials and thus a particular listing might refer to the wrong person. He stated that by paying an amount of $6, more comprehensive information could be obtained from Telecom, including the full name and date of birth of the person listed. However, this inquiry was not made. It does not appear that any officer of the Department looked in the 1992 White Pages to see if there had been any listing under the name of "Adhi".

3. In my view, the Department was aware by 27 May 1993 that Mr Adhi's address was Flat 3/96 Sproule Street, Lakemba. Even if the Department had doubts that this was the correct address, none of a number of simple steps to verify it was taken.

4. Sub-section 60 (1) of the Act states that the Minister may, after considering the prescribed matters, and no other matters, order the deportation of a person who is an illegal entrant under any provision of the Act. Regulation 7.15, to which I have referred, provides as follows:
   

"7.15 For the purposes of subsections 60 (1) and 82 (1) of the Act, the following matters are the matters to be considered by the Minister in relation to a person referred to in either of those subsections:

(a) whether the person is an illegal entrant;

(b) whether the person has been given, in accordance with these Regulations or the Migration (1989) Regulations, a notice of the intention to refer to the Minister the question of the exercise of the power:

(i) to order the deportation of the person; or

(ii) to require the person to leave Australia; as the case requires;

(c) whether the person has been granted, or is an applicant to be granted, refugee status or territorial asylum;

(d) whether the person:

(i) is an applicant for an entry permit; or

(ii) has applied to a review authority following a decision by the Minister refusing to grant an entry permit;

(e) whether the person is subject to a court order that is in force affecting the Minister's exercise of the relevant power referred to in paragraph (b);

(f) whether:

(i) if the person applied to the Minister under clause 6002 of Schedule 6 or under sub-paragraph 42 (1A) (a) (iv) of the Migration

(1989) Regulations - 7 working days; or

(ii) in any other case - 2 working days; have elapsed after the day on which the person was arrested under section 92 or 93 of the Act, as the case requires."

The deportation order made against Mr Ahdi on 14 July 1993 was one of seven made by the delegate on that day. The delegate acted upon what one might call an omnibus written submission. This had dealt with the seven persons as a group. The submission annexed copies of the notices which had appeared in the press on 12 and 16 June 1993. In para. 6 of the submission to the delegate the following appeared:

"The seven persons listed at Annex A were requested on 12 June 1993 and 16 June 1993 to provide evidence they were not subject to a court order that is in force affecting the exercise of the relevant power detailed in the notice referred to in paragraph 3 above. To date the seven persons listed at Annex A have failed to provide evidence that they are not subject to such an order."

Paragraph 3 of the submission identifies the notices as those which were published on 12 and 16 June 1993. In fact, the notices had not been expressed in such specific terms as might be suggested by para. 6. What the notices did state was:

"Take notice that unless reasonable cause is shown within seven days as to why such action should not be taken, a submission will be made to the Minister, or a delegate of the Minister responsible for the administration of the Migration Act 1958, seeking an order for the deportation of the following persons believed to be illegal entrants in Australia and whose whereabouts are unknown."

What does follow from the text of the notices with significance for the present litigation is that, firstly, the notices were issued on the assumption or in the belief that the persons listed, including the applicant, were persons whose whereabouts were unknown to the Department and, secondly, an opportunity was being given to show reasonable cause why a submission should not be made seeking deportation orders under s. 60 of the Act.

1. As to the first point, it follows from what I have said earlier that it could not accurately be stated that the whereabouts of Mr Adhi was unknown to the Department. As to the second, this recognises the general precept that where a statute such as s. 60 of the Act confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment. See Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane, McHugh JJ.

2. Indeed, s. 60, when read with the provisions of reg. 7.15, supports the applicability of the rules of procedural fairness. Sub-section (1) of s. 60 conditions the power to order deportation of illegal entrants upon there having been a consideration by the Minister of the prescribed matters and no others. The term "consider" as a matter of ordinary meaning involves the bestowal of attentive thought upon the matter in hand, here, the prescribed matters. As the submission which was in fact made in this case recognised, it will be appropriate in the course of that consideration to have regard to the question whether the proposed deportee has had an opportunity to show the existence of a Court order that is in force and is said to affect the exercise of the deportation power (see sub-reg. 7.15 (e)). Likewise, the process of consideration would involve the question whether Mr Adhi was currently seeking an entry permit (see sub-reg. 7.15 (d)).

3. The formulation of procedures upon the correct assumption that opportunity should be given to prospective deportees to show reasonable cause, to use the language of the notices, brought with it the need for consideration as to whether the method chosen to give notice of the intention to refer to the Minister the question of the exercise of the power, sub-reg. 7.15 (b), was in the circumstances an appropriate means to that end. It is true that the provisions of reg. 7.1 and reg. 7.7 provide that in the case of illegal entrants the notice called for by sub-reg. 7.15 (b) may be given by publication in the press as an alternative, amongst others, to posting the notice to the person at the address of that person's last known place of residence. Where the materials before those making the recommendation to the Minister or the delegate, as the notices in this case assumed, indicate that the whereabouts of the prospective deportee are unknown then, consistently with the requirements of procedural fairness, publication by newspaper notice ordinarily will be sufficient.

4. However, this was a different case. The decision maker was disabled from giving a proper consideration to the prescribed matters within the meaning of the legislation by a submission which proceeded on the footing that the whereabouts of Mr Adhi were unknown to the Department. This suggested that the method of notification which had been adopted was therefore the best means available to alert Mr Adhi to the opportunity given to show cause. Nor is this a case where, if the appropriate procedural fairness had been afforded to him, it could be said that no different result would have followed. It was, as I have indicated, common ground at the hearing that there had been a change in the circumstances of Mr Adhi since his previous application for an entry permit and that sub-s. 37 (2) of the Act would not have operated as a bar to a fresh application. It was further accepted at the hearing that a fresh application for an entry permit would have had at least a reasonable prospect of success.

5. It follows that the applicant should have an order of judicial review pursuant to para. (1) of the application filed 2 September 1993 and that the decision of 14 July 1993 to make the deportation order against him should be set aside. I will stand the matter over for a short time for consideration of the utility of dealing with para. (2) of the application, that is to say, the decision of 19 August 1993 to reject the application made on or about 20 March 1993 for an entry permit. I will deal also with costs.

6. I made the following orders:
   

(1) The decision of 14 July 1993 to make a deportation order against the applicant under s. 60 of the Migration Act 1958 be set aside.

(2) The respondent pay the costs of the applicant, including any reserved costs.

(3) The application is otherwise dismissed.

(4) The respondent procure the release from custody of the applicant forthwith.

(5) The orders be entered forthwith.