Alpaslan, G. v The Minister for Immigration & Ethnic Affairs

CATCHWORDS

649

Adminlstrative

Law - ludical review

- lnterlocutory stay

deportation orders - effect of failure

to obtam statement of

reasons - whether relevant considerations taken lnto account at

all or in reallty - consideratlon of possible danger

to life -

conslderation of deportee's difficulty	ln conducting litlgatlon
from overseas.

GULOREN ALPASLAN and MUSLIM	T O W N
-v-

THE MINISTER

FOR IYXIGRATION AND ETHNIC AFFAIRS

286 of

1 9 8 5

KEELY J

2 3

December

1 9 8 5

Melbourne

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIAN DISTRICT REGISTRY	) VG 286 of 1985
)

DIVISION	GENERAL	)
B E T W E E N :

GULOREN

ALPASLAN

and

MUSLIM TORAMAN

Applicants

A N D :

THE

MINISTER

FOR

IMMIGRATICN AND ETHNIC

AFFAIRS

Respondent

2 3 DECEMBER, 1985

KEELY

REASONS FOR JUDGMENT

On Monday, 16 December 1985 Mr Kevin Bell,

counsel, on behalf of the applicants, undertook to

file,

within 24 hours, an application under the Administrative

Decisions (Judicial Review) Act (the Judicial Review Act),

and handed to the court

a draft application:-

'I...

to review the declslons

of the Respondent made

on about 8 December 1985 to

(a) refuse the grant

of further temporary entry

permits.to the applicants;

(b)	refuse the grant of permanent residence to the appllcants; .and
(c)	to order that the'appllcants be deported."

. *

C *

'v'

A clalm was made for interlocutory rellef, namely:-

.. an order suspending the operatlon of the

> - . . , -

declslons and staying

all proceedlngs under

_ - -

them

pendlng

the

~ n a l hearlny

and

.. . -

determination of thls applicatlon."

_.--, I IJ

That claim was dlsmissed on 16 December 1985 wlthout waiting

for the preparation of

written reasons €or judgment.

Those

reasons for judgment are now given.

The parties,

consent

and

with leave, have

referred to

and relied upon materlal filed in

two

earlier

proceedings between the same parties, namely, matter number

VG 160 of 1985 and

matter

number

VG 246 of 1985.

affidavit

by Ross Frederick Smyrk, an offlcer

the

Enforcement Section of the Victorian Regional Offlce of the

Department of Immigration and Ethnlc Affairs, was flled

the latter matter. It set out, the decisions made by the respondent Minister on 8 December 1985 and exhibited a copy

of the departmental submission

the respondent Minister,

dated 27 November 1985.

Attached to that submission were

many documents, includlng medical reports, affidavits and

other material which

had been forwarded to the Minister by

Messrs P.G. McMullin L CO, solicltors, in making representations, on behalf of both applicants, urging a reconslderatlon of earlier decislons'made In respect of them.'- -.'- '

- .

. - - ..

,. ..

In a carefully

prepared

submission, Mr Bell

I _ . ._

- .-

supported in a

number of ways the appllcatlon for an

order

3 .

suspendlng the operation of the Minister's declsions.

His

primary submission was that at the

hearing on 23 October 1985

the Minister's counsel had given an undertaking that the

applicants would not be deported until after they had been

furnished with a statement of reasons, under

s.13 of the

Judlcial Review Act In respect

of the deportation orders made

on 15 October 1985.

He submitted that, as those deportation

orders had been revoked and the statement

of reasons

had

never been given, and as fresh deportation orders had

been

signed on S December 1985, the court should - in the absence

of a simllar undertaking being offered by the respondent

Minlster on

this occasion

- grant

a stay until after the

Mlnlster has furnished a statement of reasons under 5.13

the Judicial Review Act in respect	of those fresh deportation
orders.

However, no such undertaking was given on behalf of

the Minister - as is

shown by the transcript of the hearlng

on 2 3 October 1985. On that date the Minlster consented

to a

stay of the deportation orders

for three weeks and did

SO In

contemplation that a statemeAt

of reasons would be

furnlshed

to the applicants by him within two weeks, apparently

with

the Intention that, before the hearing

of the application for

review, the applicants' legal advisers would have

perlod of

one week in which to

study the s.13 statement of reasons

I n

respect of the deportation'-orders made

on 15 October 1985.

',:

4 .

Those deportation orders were revoked

on 8 December

'..

1985 by the Mlnlster at

tlme when he was reconsiderlng

thelr applications for "further temporary entry permits" and

- -

their appllcations for "permanent resldent entry

permlts", 2s

well as the questlon

of whether they should be depdrted;'

That reconsideration was made

In the light

of the

detailed

departmental

submission

referred

earlier,

dated

November, 1985, and the documents and other matters referred

to in that submission, including the policy

'statement whlch

had been tabled in the House

Representatlves

the

Minister on 1 7 October 1985, i.e., at a time after the decisions on 15 October 1985 to deport the appllcants.

The Minister,

having

reconsidered

the

matters

generally and made

fresh deportatlon orders in respect

both applicants, was not obliged to agree

to a stay in

respect of the later deportatlon

orders, merely because he

had - for whatever reason appeared proper to him - agreed to that course on 23 October 1985 In respect of the deportation orders made on 15 October 19.85. It may be added that, as to the current deportation orders, made on 8 December 1985 and communicated to the applicants' solicitor on 10 December 1985, no application for a statement of reasons was made

until the day

of the hearing of this matter,

namely, 16 .

- .....

. _

. .

December 1985.

In any event, In my oplnion the mere

€L&

I - C

.... . . . . "_.	I. .~	-
I	.

that an application for a statement of reasons has been

made

_ L

is not

a sufficlent ground for granting

a stay of the

3 .

deportatlon orders. In Gonaseelan v Mlnister

f o r Immiqration

and Ethnlc Affairs (unreported - dellvered 22 February

1985)

Morllng J. said (-at

17):-

I should add that when thls matter was before

the

Court

last

Friday

I heard

argument as to

whether

applicants

the

were

ntitled

interlocutory relief until such time

as they had

been furnished wlth

a statement

of reasons under

a.13 of

the Judicial Revlew Act. Cases such

Capello

Minister

for

Immlcrration and

Ethnic

Affairs (1980) 2 A.L.D. 1014; Canberra Labor Club v

Hoduman (1982) 47 A.L.R. 781, and my own decislon

in Sharma v Minister for Imnluration snd Ethnlc

Affairs ( 2 8 December 1984, unreported) tell auainst

the granting of interlocutory relief merely because

a statement of reasons under

5.13 has

not been

given. It

is true that, in Rifki v Minister for

Immiqration and Ethnlc Affairs

(1983) 46

A.L.R.

301, Toohey J.

granted interlocutory relief in

case where no statement of reasons had been

glven

by the Minlster but

I do not take hls Honour as

deciding that the mere absence of reasons will	in
every case justify the granting of interlocutory

relief.

For these reasons the primary submlsslon put on behalf of the

appllcants in support of the appllcation for a stay can not

be upheld.

Bell

put

alternative

submlssions that, in

respect of each of the three paragraphs set out in ground

in the draft application for a review, there	was "a serious
questlon to be tried" - see Northrop and	Plncus JJ. In

Dallikavak v The Minlster of State for Immlsratlon and Ethnlc

Affairs (unreported - 6 August 1985). As to that questlon,

reference should also be	made to the statement of Jenkinson
J. in the same case that:-

"There

wlll

cases

which

the

pfeludiclal

consequences for the

applicant bf refusal of a stay

(or for the community

of grant of a stay) are of a

kind or degree outslde the contemplatlon of

those

who framed the crlteria

governing the grant

interlocutory

injunctive relief

lltigation

concernlng proprietary and contractual interests."

Paragraph (1) of ground 1 in the draft application

was in the following terms:

"1.

The decisions were made without taking into

account at all or

in reality the following

considerations:

(1) That if

the applicants

were

deported

they would have to return

to Turkey where they

would be In severe danger of suffering bodily

harm m- death;

Before going

to the specific matter in paragraph

(l), it

should be noted that all three paragraphs in ground

are

preceded by the words "wlthout taking into account

at all or

in reality ... ' I.

Closely allied to that matter was Mr Bell's

submission that there had

been a rigid application of pollcy

without regard to the merits.

I adopt,

with respect, the

following statement by Toohey

in Turner v Mlnister for

Immiqration and. Ethnic Affalrs (1981) 35 ALR 388 at 392:-

',:

7 .

"In many cases It will be clear whether

or not the

declsion maker

has

taken a relevant consideration

Into account.

That 1 s

not to say that the mere

asset-tlon by the declsion maker that he has done s o wlll conclude'the' matter. It may be posslble to demonstrate from a consideration of all the reasons

leading

to the. decision, or indeed

from

the

declslon Itself, that.a consuleration

has not been

taken Into account In any real sense. Conversely

the

omission of an express

reference

some

consideration will not lead inevltably to a conclusion that it was not taken into account. An examinatlon of the reasons for declslon and of the

decision itself may justlfy the inference that

was.

Accordingly, in relation

to eachaf these three

paragraphs, I have considered whether Mr Bell's

submissions

have shown "that a consideration has not been taken into

account in any real

sense".

However,

the court must be

careful to ensure that,

in consldering whether the Minister

took a matter into account "in any real sense", it does

not

trespass into the decision-maker's

field of decidlng what

weight should be given to a consideration. As Deane J.

said

in Sean Investments Pty Ltd v MacKellar (1981) 3 8 ALR 363

375 :

In a case such as the present, where

relevant

conslderatlons are not.specified, it is largely for

the decision-maker, in the light

of matters placed

before hlm by the partles, to determlne which matters he regards as relevant and the comparatlve Importance to be accorded to matters which he s o regards. The ground of failure to take into account a relevant consideratlon will only be made

good if it is shown that the decision-maker

has

falled to take intp account a consideratlon

which

he was, in the circumstances, bound to take into

account for there	to be a valid exercise	of the
power to declde.

As to the matter in paragraph

(l),

I accept the

submission put by Mr Moshlnsky, of counsel,

on behalf of the

respondent Minister, that that was

a questlon of fact whlch

was a matter for the Minister

to consider.

In my oplnlon-..

... I -.

there is nothlng

In the material to suggest that the Minister

did not take into account the matters	In	paragraph (1) of
ground (1).

It may be noted that the applicants' solicitors, in

placlng representations before the Minlster, relied upon

report prepared by

Mr Romans Mapolar,

a law graduate of

Ankara

University,

which

placed

some

emphasis

upon

the

likelihood of each

of the applicants being prosecuted, and

possibly imprisoned,lf they returned to Turkey. Mr Mapolar

said that "under Articles 440 and

441 of the Turkish Penal

Code, adultery by a married man or

by a married woman is

punishable if a

complalnt is made by the spouse of either

party".

In this connexion Mr Bell, correctly in my view, did

not

suggest

that

the

Minister's

decision

deport

the

applicants could be attacked for

any fallure

to take Into

account that passibility

of prosecution and Imprisonment; the

Minister could quite properly take the view that the question

of what laws shall govern

the conduct of citizens of

Turkey

is a matter for the Turklsh Parliament.

-. . . -

< . .

- -

".. __..

Mapolar's

report

also

referred

the

v --.

possibility of danger to the llfe of each applicant. As

to-

I -

that, the Mmlster may have taken into account the fact that,

as Mrs Alpaslan had been divorced

In September 1983, her

action In cohabltlng

wlth Mr Toraman during the tlme slnce

that divorce (a)

was not conduct

by her as a wlfe (b) dld not

constitute an offence against the

Turklsh Penal Code ( c ) was

less likely to give rise to violence against her by either her former husband or by members of her family. It was open to the Minister to take the n e w that any tendency towards

violence by the former husband would

be likely to have been

reduced by the passage of the years and

by the fact of

the

divorce. A similar view mlght have been

taken

the

Minister In respect of the posslbility

of vlolence from other

persons

such

other

family

members.

true

that

violence by her family is a posslbility for, as Mr

Mapolar

put it, "in Turkey a defacto relationship is unacceptable to

the community" and there 1s a "strong feeling of family

honour

in Turkey". However, that was a

matter

for

the

Minister to consider and assess; further, it would have been open to the Minister to reach the conclusion that any such

danger in respect

continuing conduct by her could only

occur if she continued her ielationship	with Mr Toraman after
returning to Turkey.

Paragraph ( 2 ) of

ground 1 was in the following

terms :

10.

( 2 ) That the flrstnamed appllcant is

In a grievous

state of ill health and requires medlcal treatment and regular hospltalisatlon;"

Again I accept the submlsslon put by Mr Moshlnsky that there

is nothing in the material

suggest that the

Mln1sc:or

-.---

-.-

failed to take Into account the medical condltlon

of the

flrstnamed

appllcant

and

the

requirement

for

medical

treatment,

lncludlng

hospitalization.

There was material

before

the

Mlnister

as to the

availability of medlcal

treatment and facilities in Turkey. Again

'the questlon

the weight to be given to	the material on that aspect was a
matter far the Minister.

Paragraph (3) of ground

1 was in the following

terms :

" ( 3 ) That the secondnamed applicant needs

stay

Australia to enable

him

prosecute

Supreme Court proceedings issued by hlm for

damages in relation

to inluries he received

an industrial accldent In March 1985."

Mr Bell submltted

(as he did in relation to paragraphs

(1)

and

( 2 ) ) that

Minister

had

not

given

any

real

conslderation to a relevant matter, namely, the claimed need

for the secondnamed applicant to remain in Australia to

prosecute his Supreme Court proceedings.

In this connexion

paragraphs 19, 24 and 31 of

the departmental submlssion to

. - .

. 1

the Minister referred to the common law clalm. Paraqraph

27, .

in listing the relevant materlal, referred to

an affidavit by

Mr Grando, the

solicltor acting in

the

Supreme

Court

11.

proceedlngs for the secondnamed	applicant, whlch affldavlt
exhiblted the statement of clalm	In that matter. Paragraph

34 was in the following

terms:-

"34

Nelther is her presence required In

Australia

to pursue workers' compensatlon

an actlon for

professional negligence.

To this end, reports from

specialists,

even wlth the

assistance of the

Australian Embassy In Ankara if necessary, could

conveyed to her solicitors and doctors from Ankara.

In the same way, Mr Toraman could conduct his claim

from overseas.

In answer to a question, Mr Bell, after considering the matter during the luncheon adlournment, conceded that

Toraman could

conduct his proceedings

the

Vlctorian

Supreme Court from overseas alt'nough it

would be

extremely

difficult

to do so. In my opinion

that

concession

was

correct. My reference to the conduct of the proceedings was

a reference to the conduct of the litigatlon up to, but not

including, the actual hearing of the case, which apparently will not take place for at least 2 years. I point out, as did Jenkinson J. in Dallikavak's case, that there is nothing

in the material to suggest that the Minister's decislons on E December 1985 are intended to have the effect of refusing to permit Mr Toraman to return to Australia for the purpose of giving evidence in, and fully participating in, the hearing

in the Supreme Court and in the	final preparation immediately
before that hearing.

Such a return

to Australia would, of course,

involve expense. However,

in Dallikavak's case (supra)

12.

Northrop and Pincus

JJ.,

referring to the difficulty

conducting litigation from Turkey,

said "there is really

evidence that the Minister himself looked

thls aspect

unfalrly or that

he was unconscious

the fairly obvious

problems which would

be encountered as to the litlgatlon

..."; earlier,

thelr

Honours

had

quoted

the

following

passage from a letter written by the Minister:-

"While I have given consideration to the effect of deportation on Mr Dallikavak's compensation claim,

I consider that much of the dlsadvantages claimed

are of Mr Dallikavak's own making

working

illegally, under an assumed name, in Australia."

Mr Bell accepted that the Minister may have acted upon advice that the Supreme Court proceedings could be

conducted

from

overseas.

However,

submitted

that

the

' court should infer, from paragraph

34 of the departmental

submlssion, that the Minister had falled to give any real

consideration to that relevant matter and instead had decided

accordance

wich

an inflexibly

applled pollcjr. He

contended that the Minister

had failed to take into account,

in any real sense, the matters dealt	with in the affidavit	of
Mr Grando.

That affidavlt included statements by

Mr Grando (1)

that he believed that Mr Toraman would be required by the

. -_.

I c .,-

defendant to attend for medical examlnations

on a

regul'ar

-. . _.I .

- - .

.. .

basis, ( 2 ) that it was

his lntentlon to

have Mr

Toraman's

"medical condition reviewed and assessed from time to tlme by

consultant medical practitioners throughout the course

these proceedings" and

( 3 ) that it would be necessary

for him

(Mr Grando) "to

obtain more detailed instructlons from CMr

Toraman] throughout the entire course of these proceedlngs".

For those reasons he believed that

I would be "necessary for

CMr Toraman] to be in Australia

whilst the said proceedlngs

are on foot". He also expressed the opinion that "the proceedings will not come to trial for a period of some two to three years from the present lme" (i.e., 6 August 1985).

No reference was made to the possibility

of a successful

appeal nor to the possiblllty

of a retrial

the whole

action or of the issue as to damages.

There is nothing to suggest that the Minister did

not take into account the contents

of Mr Grando's affidavit;

in my opinion it was open to him to

do so and yet to reach

the conclusion that those proceedings could

be conducted from

overseas, with considerable difficulty, and

that

any

disadvantage to the secondnamed applicant was outweighed by

the factors favouring deportation.

Another dlfficulty in the

way

of the secondnamed

applicant on this branch

of the

submlssion

is that the

Minlster may well have

taken into account the

fact that the

inluries allegedly suffered by Mr Toraman, on or about 25 March 1985 whilst employed by the defendant, would not have occurred had he adhered to the undertaking glven by him that

\ /

14.

he would not work,

without permission, whilst in Australia.

The passage from Northrop and Pincus

JJ. In Dallikavak's case

quoted earlier shows that

In that case the Minister said

consider that much of the disadvantages claimed are of

Dallikavak's own making in worklng illegally ... in Australia". The Minister may well have taken the same view

in the present matter.

my opinlon, It

was open to the

Minister, as a matter of law, to take the

view that, in those

circumstances,	the	fact	that	Mr Toraman	will	encounter
-

considerable difficulty in conducting

his proceedings from

overseas 1 s not

a factor of such weight as to outweigh the

factors favouring an order

for deportation. As pointed out

earlier, the weight to be attached to that factor - and

any other factor

- is a matter for the Minister and is not

matter for this court.

Glven the number of references in the departmental submission to the common law proceedings and the fact that

the material submitted to

the Minister included Mr

Grando's

affidavlt, In my

oplnion it would

be quite wrong for

tYiis

court to reach the concluslon that the Minister had failed to

take into account that consideration.

Paragraph 34 of the

departmental submission, although expressed rather briefly, expressly referred to the posslbility of "reports from

specialists", with "the assistance

of the Australian Embassy

in Ankara if necessary", belng conveyed to her solicitors and

doctors

from Ankara.

true

that

hat

partlcular

statement related to

a claim by Mrs Alpaslan but the next

sentence, referring to Mr

Toraman, began with the words

"In

the same way

. . .

" .

Before

decldlng

this

matter

I considered the

decision of Lockhart J. in Laremont v

The Minister for

Immlqration and Ethnic Affalrs (unreported decision

- dated 6

December 1985).

In my opinion It 1 s distinguishable because

his Honour took the

view that in that case, havlng regard

a letter written by	the	Mlnister,	the	departmental
submission:-

"conveyed a materially inaccurate impression

to the

Minister which played a significant role in

his

decision.

It is a case, not of insufficient weight

being

given to a materlal matter, but

fundamental

mlsconception of what is

admitted

Ci.e., by the Minister3 to be a consideratlon of

signlf icance"

In my opinion

the departmental submission In the present

matter

could

not

falrly

said

have

"conveyed

materlally inaccurate impression to the Minlster". It said that "Mr Toraman could conduct his claim from overseas" and in my opinion that meant that he "could" do so but did not suggest that he could do it without conslderable dlfficulty.

As Northrop

and

Pincus

JJ. sald, in

the

passage

from

Dallikavak's case, quoted earlier, "There 1s really no

evidence that the Minister ... was unconscious of the fairly

obvlous

problems

which

would

be encountered as

to the

litigation".

16.

I should add that,

wlth great respect to Lockhart

J., I am qulte unable to agree with his statement, If it

intended as a general statement, that "viewed in a practical

light it is obviously unreal to expect a worker to prosecute

his claim ...'I.

That it would be very difficult

to do

so 1 s

doubtless true but,

with

the facilities available for the

taking of evidence, in my respectful opinlon there is nothlng unreal - or unfair - in expecting a worker to prosecute his -

claim from overseas

where, as in this case, it is clear that

the injury the subject

of the proceedings would not

have

occurred but for hls breach of his undertaking not to work In Australia without written permission - a breach which is an

offence against section 31E(2)

of the Mlqration Act.

It would be open to the Mlnister, in my opinion, to

regard it as far more unreal if he were required to approach such cases upon the basis that every prohibited non-citizen in Australia, who works in breach of his undertaking that he

will not work without written permission,

ca not be deported

from Australia until three or possibly more years after

brings proceedings in respect of any claim by him that he suffered an inlury which was due to the negligence of his employer.

It was also submitted by Mr Bell that the

decisions

of the Mlnister were

so unreasonable that

no reasonable

‘4

l /

person could have made them (based upon ground 4 in the draft

..	application). It wlll be clear from what I have already sald that In my oplnion that qround 1 s quite untenable and ralses no serious question to be tried.

It is true

that, as

Mr Bell said in opening the

case, the applicants have

had difficulty in making out their

case and that they might have

been in a stronger position lf

they had received a 5.13 statement. On the other hand

it may

be that such a statement would have made It quite clear that

no ground existed for the present application. In thls

connexion, it may be briefly mentioned that, in addition to

the consideration given by him to the policy, the respondent

Minister may well have

had regard

a number of other

factors.

First, each applicant broke

an undertaking not to

work in Australia.

Second,

each

broke

an undertaking

not

t o

seek to stay longer and not to

seek permanent resldence in

Australia. Thlrd, each applicant made, in September 1984, a false statement in the appllcatlon for permanent residence as

to their employment in Australla. Fourth, each gave a

false

address In the application for permanent resldence. Fifth, according to the flrstnamed applicant‘s affldavit, filed In

July 1965,

each

applicant dld not tell the Departmental

officer at an lnterview in November

1984 that either of

them

had been working

Australia.

Sixth, nelther

applicant

disclosed to

the Department any details as to

a Workers

Compensation claim or

as to

an exlsting medlcal conditlon.

' ..

\ .;

Seventh, each appllcant was employed under

a false name.

Eighth it appears that

each appllcant

has used other

false

names and Mr Toraman has issued Supreme Court proceedings in

a false name.

? -

At all events

it 1s not for the court to speculate.

The applicants have

failed to show that there is a

serious

question to

be trled and

no other circumstances have been

shown whlch make it just for the court

to make the order that

is sought.

all the material before the court I was

not

persuaded

that

the applicants should be given

the

interlocutory rellef sought. Accordingly the claim for

stay was dismissed and it was ordered that costs of the application for interlocutory relief be costs in the cause.

After hearing argurncnt It was also decided that there be no

order as to costs In Matter No VG 160/1985 and VG 246 of

1985.

[1985] FCA 649

23 Dec 1985