Ang, H.B. v Minister for Immigration & Ethnic Affairs

[1994] FCA 109

HOCK BOON ANG v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG473 of 1993
FED No. 109/94
Number of pages - 5
Immigration
(1994) 121 ALR 95
(1994) 48 FCR 437

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
WILCOX J

CATCHWORDS

Immigration - Status of Singaporean national resident in Australia since 1976 - Applicant stayed illegally in Australia after expiration of last temporary entry permit in December 1976 - Whether applicant ceased to be "prohibited immigrant" after five years from expiration of last temporary entry permit - Deportation order purportedly made against applicant within the five year period - Whether valid - Purpose of making order.

Migration Act 1958-1981, s.7, 18, 20.

Migration Amendment Act 1983, s.8

Migration Legislation Amendment Act 1989, s.6(2)

Migration Laws Amendment Act (No.2) 1992, s.16

HEARING

SYDNEY, 11 February 1994
#DATE 4:3:1994

Counsel for the Applicant: C R de Robillard

Solicitors for the Applicant: Parish Patience

Counsel for the Respondent: J S Hilton SC and K M Guilfoyle

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. It be declared that the applicant, Ang Hock Boon, is not an illegal entrant within the meaning of the Migration Act 1958;

2. The respondent, the Minister for Immigration and Ethnic Affairs, be restrained from taking any steps to deport the applicant from Australia; and

3. The respondent pay the applicant's costs of the proceeding.

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

JUDGE1

WILCOX J The issue in this case is the validity of a deportation order made against the applicant, Ang Hock Boon, on 28 August 1981. Counsel for the applicant contends that it is invalid, with the result that his client is entitled to stay indefinitely in Australia. Counsel for the respondent, the Minister for Immigration and Ethnic Affairs, argue that the order is valid, with the consequence that Mr Ang has the status of an illegal entrant, under the Migration Act 1958, and is vulnerable to deportation from Australia.

The background facts
2. Mr Ang is a Singaporean national. He was born on 18 July 1954 and came to Australia at the age of 22, in August 1976. He has been here ever since.

1. Mr Ang is homosexual. In 1975 he met an Australian man, Rodney Sprague, who was holidaying in Singapore. They commenced a homosexual relationship. At the end of his holiday, Mr Sprague returned to Australia. The two men kept in contact and Mr Sprague returned to Singapore in 1976. According to Mr Ang's evidence, Mr Sprague told him much about Australia, including that homosexual couples could live together openly in Australia. Mr Ang said this contrasted with the position in Singapore, where homosexuality was illegal and homosexuals were vilified and marginalised. Also, Mr Ang said, he was in love with Mr Sprague. So he responded positively to a suggestion from Mr Sprague that he should visit Australia to see how things worked out between them here.

2. Mr Ang entered Australia on 13 August 1976 at Melbourne, where Mr Sprague then lived. He was given a temporary entry permit valid for one month. He commenced to live with Mr Sprague and to assist him in his take-away food business. On 14 September Mr Ang obtained a further entry permit valid until 13 December 1976.

3. During the currency of this permit, Mr Sprague applied to the Department of Immigration to sponsor Mr Ang (whom he referred to as "Lionel Ang") as a permanent resident. Counsel for the respondent put to Mr Ang that Mr Sprague approached both the then Minister for Immigration and Ethnic Affairs and the then Prime Minister, in the hope of obtaining permission for Mr Ang to stay in Australia. Mr Ang said that he knew that Mr Sprague sought to sponsor him. But he was vague about the details. This is not surprising. The relevant events occurred a long time ago. Mr Ang was young and new to the Australian system of government. Nor, perhaps, is it surprising that Mr Sprague's application was unsuccessful. In his letter of application, Mr Sprague did not mention his personal relationship with Mr Ang. He could hardly have done so. Sexual intercourse between males (even consenting adult males) was then a criminal offence. In any case, it is unlikely that mention of a homosexual relationship would have assisted the application. The position might have been different if the relationship had been heterosexual.

4. Whatever Mr Ang's precise state of knowledge about Mr Sprague's application, he agreed under cross-examination that, by November 1976, he knew he would not be allowed to remain permanently in Australia. Nonetheless, he made a decision not to return to Singapore, but to remain in Australia illegally. He did not inform the Department that he proposed to take this course.

5. For some months, Mr Ang and Mr Sprague continued to live in Melbourne. According to Mr Ang, the business did not prosper and, when Mr Sprague was offered a good job in Brisbane, they decided he should accept it. They moved to Brisbane and lived there together. Mr Ang obtained employment in a glass factory.

6. The relationship between Mr Ang and Mr Sprague came to an end in 1979. According to Mr Ang, the reason was Mr Sprague's interest in yachting, which apparently consumed an increasing proportion of his time and their money.

7. Despite the breakdown in his relationship with Mr Sprague, Mr Ang wished to stay in Australia, which he now regarded as his home. He had not returned to Singapore since his arrival in Australia and had only occasional contact with members of his family; and none with anyone else in Singapore.

8. In order to get away from Mr Sprague, Mr Ang moved to Sydney, where he has resided ever since. He did not inform the Department of Immigration of his whereabouts. For a while he continued to call himself "Lionel Ang", then "Adrian Ang". But it seems that he also used the surname "Tang", sometimes with the first name "Adrian", sometimes "John". When asked in cross-examination why he used these names, Mr Ang replied: "Because well I'm afraid to be caught by the Immigration". He said that, for this reason, he lived "a very quiet lifestyle". But he denied that this was why he did not renew his Singapore passport when it expired in January 1980. He said his reason was that he just wanted to stay in Australia.

9. The Departmental file in evidence in this case includes a telex dated 19 March 1981 from an officer in Canberra to an officer in Melbourne referring to Mr Ang and asking whether he was "located or departure confirmed". A response was sent on 25 March in these terms:
   

"RE ANG HOCK BOON DOB 18.7.54. SUBJECT NOT LOCATED NOR DEPARTURE CONFIRMED. HELD F.B. TICKET TO DEPART QF5 EX MELBOURNE 13.12.76. PHONE CALL TO SPONSOR MR JOHN SPRAGUE REVEALED SPRAGUE MOVED TO BRISBANE APPROX. APRIL 1977. AT THIS TIME ALL STATES NOTIFIED NO RECORD OF APPROACH."

1. The file also contains a note dated 15 July 1981 concerning Mr Ang. It was apparently written by a Departmental officer in Canberra. It reads: "Please include in your next DO schedule for Dep Sec, if not already done so."

2. The letters "DO" in this note plainly mean "deportation order". At that time the provisions concerning the deportation of prohibited immigrants were ss.18 and 20 of the Act. Section 18 empowered the Minister to order the deportation of a prohibited immigrant. Section 20 provided:
   

"Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly."

1. On 26 August 1981, an officer named Cavanagh wrote a memorandum to Derek Volker, the Deputy Secretary of the Department, on behalf of the Regional Director in Melbourne. The memorandum listed "ten (10) visitors (who) have failed to depart on the expiration of their temporary entry permits and their whereabouts are unknown". The list included Mr Ang. Mr Cavanagh went on:
   

"In accordance with Section 7(4) of the Migration Act 1958 these people will cease to be prohibited immigrants at the expiration of a period of five years from the time at which they became prohibited immigrants unless at the expiration of that period, deportation orders in relation to them are in force. In order to ensure that all persons remain prohibited immigrants and if necessary their departure can be enforced when they are located, I recommend you sign the attached orders for their deportation. When such persons are located, no further action to invoke the Deportation Order will be taken without reference to the Minister or yourself."

1. In order to understand this memorandum, it is necessary to know the effect of s.7(4) of the Migration Act. Section 7(1) of the Act empowered the Minister, in his discretion, to cancel a temporary entry permit. Section 7(2) permitted the grant of a further temporary entry permit. Subsections (3) and (4) of s.7 provided:
   

"(3) Upon the expiration or cancellation of a temporary entry permit, the person who was the holder of the permit becomes a prohibited immigrant unless a further entry permit applicable to him comes into force upon that expiration or cancellation.

(4) Notwithstanding section ten of this Act, a person who has become a prohibited immigrant by virtue of the last preceding sub-section ceases to be a prohibited immigrant at the expiration of a period of five years from the time at which he became a prohibited immigrant unless, at the expiration of that period, a deportation order in relation to him is in force."

1. Section 10 of the Act provided that a prohibited immigrant lost that status when granted an entry permit, "and not otherwise".

2. On 28 August, acting as a delegate of the Minister, Mr Volker made an order under s.18 of the Migration Act that Mr Ang "be deported from Australia".

3. Despite the signing of the deportation order, no immediate attempt was made to locate Mr Ang. On 11 January 1982 a memorandum was dispatched from the office of the Melbourne Regional Director to senior officers in other cities and some other Commonwealth officers referring to Mr Ang and requesting them to advise the Melbourne office if he came under notice. Nothing came of this; perhaps not surprisingly, as the officer wrote "NK" (presumably for "not known") against each of the descriptive particulars contemplated by the form of the memorandum.

4. Mr Ang was arrested by officers of the Department on 29 May 1993. He was released the following day and subsequently interviewed in company with his solicitor. The interview was followed by correspondence during which the solicitor claimed that the effect of s.7(4) was to allow Mr Ang to remain in Australia. The Department responded by referring to the deportation order signed in August 1981. The solicitor argued this was invalid. The Department did not agree and indicated that it proposed "to proceed with action to effect Mr Ang's departure from Australia". Thereupon this proceeding was commenced. On 9 July 1993 Mr Ang's solicitor filed an Application seeking declarations and an injunction restraining the Minister from taking any steps to deport Mr Ang from Australia.

The legislation
20. As I have indicated, the issue in the case is whether the August 1981 deportation order was valid. In order to put that issue into context, I should refer more fully to the legislation.

1. Counsel agree that, upon the expiration of his second temporary entry permit on 13 December 1976, Mr Ang became a "prohibited immigrant": see s.7(3), as it then read, quoted above. They further agree that, if the deportation order was invalid, on 13 December 1981, the fifth anniversary of the expiration of the second temporary entry permit, Mr Ang ceased to be a prohibited immigrant: see s.7(4), quoted above. If the deportation order was valid, he continued to be a prohibited immigrant. He retained that status until 2 April 1984 when the Migration Amendment Act 1983 commenced to operate. That Act substituted the term "prohibited non-citizen" for "prohibited immigrant". If Mr Volker's deportation order was valid, Mr Ang then became a prohibited non-citizen.

2. The 1983 Act also repealed s.7(4). In enacting the repealing provision, Parliament not only sought to prevent people unlawfully in Australia gaining future benefits from the effluxion of time; it sought to take away benefits already conferred by s.7(4). Section s.8(2) of the 1983 Act provided that a person who, at the commencement of that Act, was a non-citizen and not the holder of an entry permit and had ceased to be a prohibited immigrant by virtue of s.7(4) became on that commencement a prohibited non-citizen. On this basis, Mr Ang was a prohibited non-citizen even if no valid deportation order had been made against him. However, this retrospectively-operating provision was itself retrospectively amended by s.16 of the Migration Laws Amendment (No.2) Act 1992. That section provided that s.8(2) of the 1983 Act "does not apply, and never has applied" to a person who on the commencement of that Act was in Australia, before that commencement had ceased to be an immigrant and, since that commencement, had not left Australia. As counsel for the respondent concedes, Mr Ang meets these criteria; thus bringing us back to the critical question of validity of the deportation order.

3. The term "prohibited non-citizen" was jettisoned by the Migration Legislation Amendment Act 1989. The current term is "illegal entrant". Section 14 of the present legislation sets out categories of people falling within that description. The stated categories do not include people previously known as "prohibited non-citizens". But s.6(2) of the 1989 Act provides that a person who, immediately before the commencement of the section (on 19 December 1989), was a prohibited non-citizen "becomes an illegal entrant at that commencement". It follows that, if the deportation order was validly made in August 1981, so that Mr Ang remained a prohibited immigrant after 13 December 1981 and later became a prohibited non-citizen, he is now an illegal entrant. Moreover, he is liable to deportation: see ss.59 and 60 of the present legislation.

The arguments of counsel
24. The critical question in the case is a short one. Counsel for the applicant does not dispute Mr Volker's authority to make a deportation order or the appropriateness of the form of order he signed. He puts two distinct arguments. First, he says that Mr Volker's decision to make the deportation order was made with the intention that it be suspended for an indefinite period - at least until Mr Ang was located, and possibly thereafter. In relation to this argument he cites Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471, in which a Full Court held that the Minister had no power to suspend a deportation order. The order under consideration in that case was made in October 1984. Between August 1981 and October 1984 some amendments were made to ss.18 and 20 but not so as to change their substance. Accordingly, counsel for the applicant argues, and this is not disputed on behalf of the respondent, Dallikavak applies equally to the 1981 form of ss.18 and 20. Counsel submits that, if the Minister (or his delegate) had no power to suspend a deportation order, Mr Volker's decision to make a deportation order whose operation was to be immediately suspended must have been invalid; the decision to suspend being integral to the decision to make the order, it cannot be divorced from the order itself. Absent the decision to suspend, Mr Volker would not have made the order.

1. Secondly, counsel argues that the August 1981 order was invalid ab initio because it was made for an ulterior purpose. According to the argument, the deportation order was not made in order to effect the deportation of Mr Ang as soon as possible in the ordinary course of business, as s.20 of the Act required, but in order to prevent the operation in his favour of s.7(4) of the Act; in other words, to maintain his status as a prohibited immigrant and thus preserve the Department's ability to make a deportation decision against him, if it saw fit, at a later date. That it was envisaged that there would be a later decision is demonstrated, counsel says, by the concluding sentence of Mr Cavanagh's memorandum promising that, after location, "no further action to invoke the Deportation Order will be taken without reference to the Minister or yourself". It is apparent, according to counsel, that Mr Cavanagh expected that the decision would be made, in relation to each of the people on the list, as and when they were located; he did not intend Mr Volker to make any decision about deportation at this time.

2. In relation to the second argument counsel cites Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) 81 ALR 288. In that case the seven appellants, South Korean nationals, entered Australia illegally, with the connivance of corrupt Customs officers. Deportation orders were made against them on 20 August 1986 but not immediately executed. The Director of Public Prosecutions wished the appellants to remain in Australia and give evidence in criminal proceedings against the Customs officers. For some months after the deportation orders were made, the appellants were held in detention. It was argued on their behalf that the deportation orders were invalid because they were made for the purpose of authorising their detention, and not to ensure their prompt removal from Australia. At first instance, Davies J upheld this argument. He inferred from the evidence concerning discussions between officers of the Department and the office of the Director of Public Prosecutions that the delegate (a senior Departmental officer) knew of the Director's wish to keep the appellants in Australia and made the order to authorise their detention for this purpose. In the course of his reasons, his Honour said this:
   

"When s.18 authorises the Minister or his delegate to order that a person be deported from Australia, it does not authorise the Minister or his delegate to sign a deportation order unless the decision-maker has determined that the prohibited non-citizen shall be deported as soon as appropriate arrangements for his deportation can be made. A deportation order may not be made as a mere indication of a possible or likely future course of action. Once made, the deportation order may not be suspended: ... Section 20 imposes the statutory duty that a deportation order be implemented 'accordingly', that is to say according to its terms. Section 39 authorises the arrest and detention of the prohibited non-citizen pending deportation, but that is to say only for the purposes of deportation and during the period it may take to arrange deportation by means which are appropriate having regard to the terms of the order and the circumstances of the case."

1. On appeal from Davies J, the Full Court divided on the factual question whether it was correct to infer the existence of the alleged improper purpose. Sweeney and Foster JJ agreed with Davies J; Morling J did not. But there was no disagreement about matters of legal principle. Sweeney and Foster JJ each quoted with approval the whole of the passage set out above: see 293-294 and 315. Morling J quoted part of it, at 304. He made no direct comment about the passage, but apparently accepted its correctness. At 305 he identified the "question which is central to all the decisions made in August 1986" as being whether the delegate's decisions to make the deportation orders "were flawed in the manner found by his Honour".

1. Park was further appealed to the High Court of Australia: see (1989) 167 CLR 637. But the only issue there argued was whether the appellants' detention was unlawful. The Minister did not dispute the Full Court majority view that the deportation orders were invalid: see 642.

2. Counsel for the Minister dispute both the applicant's arguments. They concede that the timing of the deportation order was dictated by s.7(4); unless the order was made before 13 December 1981, it could not be made at all. But they say this does not affect the order's validity; provided only that Mr Volker had a genuine intention to deport Mr Ang when he was located, it was legitimate to make the deportation order sooner rather than later. There was no element of suspension; just that it was obvious that there would be some delay before the order could be implemented. To leave the making of the order until Mr Ang was located, would be to risk losing the ability to make the order at all, and thus to effect the deportation of a person whose deportation was contemplated by the Act. It follows, say counsel, that the making of the order, at that time and under those circumstances, was an action falling within the scope and purpose of the Migration Act, and not for a foreign purpose such as a "disguised extradition" (as to which see the discussion in Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 at 724-729). Counsel insist that this is a very different case from Park where, on the finding of Davies J upheld by the Full Court majority, the purpose of the deportation order was not to effect the appellants' removal from Australia but to retain them here securely until they gave their evidence. The Department's genuine desire to remove Mr Ang from Australia is demonstrated, counsel say, by its action in circularising his particulars to regional offices and other Commonwealth instrumentalities.

Conclusions
30. In relation to the first submission of counsel for the applicants, I accept that Mr Volker realised when he signed the deportation order against Mr Ang that it could not immediately be carried into effect. Obviously, it would first be necessary to locate Mr Ang. But it does not follow that the order was made with the intention that its operation be suspended, in the sense of the discussion in Dallikavak. A person may make an order, knowing that there will or may be delay in its implementation, yet with the intention that it be implemented at the earliest possible time. In such a case, I do not think it is accurate to say that the implementation of the order is intended to be suspended; in such a case the order is in force, to be implemented as quickly as circumstances permit. The fact that Mr Volker knew that the Department was ignorant of Mr Ang's present whereabouts does not affect the validity of his order.

1. However, I think there is substance in counsel's second submission. In this case there is more than an expectation of unavoidable delay. The applicant is able to point to two additional circumstances. They are, I think, related.

2. First, the applicant's counsel cites the reference in Mr Cavanagh's memorandum to s.7(4). He says it is evident that the deportation order was made against Mr Ang solely to ensure that he would be denied the benefit of s.7(4); unless a deportation order was made before 13 December 1981, Mr Ang would cease to be a prohibited immigrant and liable to deportation. Secondly, counsel says the final sentence of Mr Cavanagh's memorandum shows that the order was made on the basis that it would not be implemented without instructions to that effect, if and when Mr Ang was located.

3. There is no doubt that s.7(4) loomed large in the minds of the officers concerned with the making of the deportation order. As I have said, counsel for the respondent concedes that it affected the timing of the deportation order. I think the critical question is whether this is all it did, causing a deportation decision to be made sooner rather than later, or whether the true position is that the deportation order was made without Mr Volker reaching any conclusion that Mr Ang should be deported, but merely to preserve the Department's ability to make a decision to that effect if and when he was located.

4. I think it should be concluded that the latter was the true situation. It seems that, in 1981, it was the practice of the Department to submit to delegates lists of names of prohibited immigrants whose whereabouts were unknown in order that they might make deportation orders against each of them, and thus prevent s.7(4) of the Act operating in their favour. The evidence includes a memorandum dated 6 May 1981 from A J Goward, First Assistant Secretary, Legislation and Review Division of the Department to the Minister reporting on deportation activity. The memorandum gives statistical information for April 1981, including the following:
   

"a total of 77 deportation orders were signed against prohibited immigrants (163 so far for 1981); apart from those submitted on schedules of 'whereabouts unknown' by Regional Offices."

Plainly, the orders made in response to "whereabouts unknown" schedules were regarded as being in a different category to the counted cases (77 for April, 163 so far for 1981).

1. Mr Cavanagh's memorandum was what Mr Goward would have called a "whereabouts unknown" schedule. Mr Ang's name got onto the list because of the note of 15 July 1981 requesting that Mr Ang's name be included "in your next DO schedule for Dep Sec".

2. There was not necessarily anything wrong with a practice of submitting lists of names of missing prohibited immigrants to delegates with a recommendation that they make deportation orders against each of them. It would have been open to the Department to adopt a policy that all prohibited immigrants should be deported, so that, once it was known that a particular person had overstayed his or her temporary entry permit, a delegate should be invited to make a deportation order for execution as soon as possible. If that was intended, it would be no objection that sometimes execution would be delayed because the deportee had first to be found. There would still be a determination "that the prohibited non-citizen (to use the 1988 term embodied in Davies J's statement) shall be deported as soon as appropriate arrangements for his deportation can be made". The order would not be made "as a mere indication of a possible or likely future course of action". However, Mr Cavanagh's memorandum demonstrates that the subject deportation order was not made pursuant to any such policy. The reason for his recommendation that Mr Volker sign deportation orders against the ten listed people was stated in these words: "In order to ensure that all persons remain prohibited immigrants and if necessary their departure can be enforced when they are located"; in other words, in each case to keep the Department's deportation option open. Consistently with that reasoning, Mr Cavanagh promised Mr Volker that none of the deportation orders would be enforced without reference to the Minister or himself. In other words, the order would not be treated as an operative command without a later decision to that effect at a very senior level.

3. Counsel for the respondent say that a conclusion by the Court that a deportation order could not validly be made for the purpose of keeping open the possibility of deportation when a prohibited immigrant was located would have the effect of rewarding people for concealing their whereabouts from the Department. I do not think this is correct. As I say, it would have been open to the Department to adopt the practice of making genuine deportation decisions against prohibited immigrants, that were intended to be immediately operative but could be revoked if new circumstances became apparent when the deportee was found. If that practice had been adopted, the deportation orders would have been valid; the prohibited immigrants would have obtained no advantage from concealment of their whereabouts. However, this is not what the Department chose to do. For reasons not apparent to me, it seems to have been unwilling to adopt a practice of making immediately operative orders. Instead, it seems to have set out systematically to deny the benefit of s.7(4) to prohibited immigrants, or at least all those whose whereabouts were unknown.

4. The policy behind s.7(4) is not obvious to me. Perhaps the subsection owed less to logic and considerations of policy than to a perception that an unconfined s.7(3) might run into a constitutional difficulty; on the basis that, after five years, even a prohibited immigrant might be regarded as absorbed into the community and beyond the reach of the Commonwealth's legislative power in respect of immigration: see The King v Macfarlane; ex parte O'Flanagan (1923) 32 CLR 518; Ex parte Walsh; in re Yates (1925) 37 CLR 36; Williamson v Ah On (1926) 39 CLR 95; O'Keefe v Calwell (1949) 77 CLR 261 at 294. But compare, more recently, The Queen v Forbes; ex parte Kwok Kwan Lee (1971) 124 CLR 168 at 173. However, whatever the reason for s.7(4), whilst it remained in the Act it expressed the policy of Parliament as to the effect on their future status of prohibited immigrants being in Australia for a period exceeding five years. If a deportation order was made against such a person, genuinely and with the intention that the person without more ado be deported, as s.20 required, s.7(4) did not operate to allow a change of status. If no such order was made, it was not legitimate for delegates to attempt to frustrate the will of Parliament by systematically denying the benefit of the subsection to prohibited immigrants. I think this is what Mr Volker sought to do in this case. He used his power to make a deportation order, not for the purpose intended by the Act, that is to implement a present decision to remove the applicant from Australia as soon as possible, but to enable the Department to make such a decision at a later date.

5. I should refer to three other matters. First, mention was made of the recent decision in Seiler v Department of Immigration, Local Government and Ethnic Affairs (French J, 19 January 1994, not reported). In that case deportation orders were made against nine people, including Seiler, on 21 August 1984. All nine people had apparently overstayed their temporary entry permits and remained in Australia as prohibited non-citizens, as the term then was. Their whereabouts were unknown to the Department on 21 August 1984. Their names had been submitted to the Deputy Secretary in a memorandum recommending that he make deportation orders against each of them. The memorandum referred to a Departmental policy document that spoke of the appropriateness of making deportation orders "when the known circumstances of that prohibited non-citizen evince the 'queue jumping' of immigration selection procedures and/or breaches of undertakings given in securing entry to Australia". The memorandum also said that the making of a deportation order in those circumstances "will facilitate the location of that prohibited non-citizen". The policy document said that, upon location, "the review of his existing circumstances may either lead to the revocation of the order (and subsequent regularisation of status) or the enforcement of departure from Australia".

6. One of the matters French J had to determine was the validity of the deportation order made against Seiler. He held that it was valid, stating that it was open to the Minister or his delegate to make the order "while accepting that further information might be obtained which would lead to its revocation". He went on:
   

"Such an order is neither conditional nor provisional. And the fact that ancillary enforcement powers enlivened by the making of the order might lead to the detection of the deportee is not irrelevant to the exercise of the power. For the power serves the purpose of removing from Australia people who are not entitled to remain in this country. The collateral or ancillary purpose alleged in this case is related directly to the object of the power. It is to be distinguished from a case in which the deportation power is exercised for some extraneous purpose such as the detention of the subject pending criminal investigations ... or the extradition of the subject to answer charges in another country."

1. I respectfully agree with the view expressed by French J. I do not think it conflicts with the conclusion I have reached in this case. There are significant differences in the essential facts of the two cases. When the Seiler deportation order was made, s.7(4) of the Migration Act had been repealed. There was no question of the deportation order being made pursuant to a policy of denying to particular people the operation of a statutory provision. A stated purpose of the deportation orders discussed in Seiler was to "facilitate the location" of the prohibited non-citizen. It was not explained how this would occur but, if this was a reason for making the order, it was (as French J observed) a collateral purpose "related directly to the object of the power". There is no suggestion in the contemporaneous documents that Mr Volker saw this as a reason for making the deportation orders against Mr Ang and the other people listed in Mr Cavanagh's memorandum to him.

2. French J said the Seiler deportation order was "neither conditional nor provisional". This cannot be said of the order made against Mr Ang. In practical terms, there may be little difference between a presently operative order that is subject to possible revocation in the light of new circumstances learned when the person is located and a provisional order that defers any final decision until after location. But the former type of order is valid; the latter is not.

3. Secondly, during the course of argument senior counsel for the Minister made the comment that, if the present applicant's argument was accepted, it would enure for the benefit of many other people who remained illegally in Australia whilst s.7(4) was in force. In fairness to counsel, I should say that I understood the comment to be merely intended to show the ramifications of the case, not to influence its outcome.

4. I accept that the conclusion I favour may benefit other people; I do not know how many. Whatever the number, they would all be people who have resided continuously in Australia for at least 15 years, since at least five years before the repeal of s.7(4). As they have escaped notice so long, it is probable that all of them, like Mr Ang, have lived a "very quiet lifestyle" and avoided conflict with the law. No doubt many of them have formed close relationships within the Australian community or otherwise put down roots in this country. Perhaps it might not much matter if this case had the effect of freeing them all from the threat of deportation.

5. Thirdly, I record that counsel for the applicant put a separate argument that his client was now beyond the reach of the Migration Act because he had been absorbed into the Australian community. Unless Mr Ang would be classified by the legislation as an illegal entrant, this question does not arise. If he would be so classified, Kwok indicates the argument is not tenable.

Orders
46. I propose to make a declaration that the applicant is not an illegal entrant within the meaning of the Migration Act and to issue an injunction restraining the respondent from taking steps to deport him from Australia. The respondent must pay the costs of the proceeding.