Aqbal, M. v The Honourable M. Hurford
[1986] FCA 172
•29 APRIL 1986
Re: MOHAMED AQBAL; RABBUL NISHA AQBAL and DOREEN SHABNAM AQBAL (an infant
suing by her next friend and mother, Rabbul Aqbal)
And: THE HONOURABLE JOHN CHRISTOPHER HURFORD Minister for Immigration and
Ethnic Affairs
No. G445 of 1984
Abministrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.
CATCHWORDS
Administrative law - judicial review - deportation orders - personal circumstances - application of rules of natural justice.
Administrative Decisions (Judicial Review) Act 1977: s. 5. Migration Act 1958: s. 18.
Kioa v. Minister for Immigration and Ethnic Affairs (1984) 55 A.L.R. 669; (1985) 60 A.L.J.R. 113.
HEARING
SYDNEY
#DATE 29:4:1986
ORDER
The application be dismissed.
The applicants pay the respondent's costs of the proceedings.
The judgment of the Court given today and the orders made today shall not take effect or operate until 6 May 1986 or further order.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Mohamed Aqbal and Rabbul Nisha Aqbal, who are husband and wife, seek to quash deportation orders made against them on 30 November 1984 by the Delegate of the Minister for Immigration and Ethnic Affairs. The third applicant, Doreen Shabnam Aqbal, is a daughter of Mr. and Mrs. Aqbal born in Australia on 17 September 1974 during a visit by them to this country.
It is necessary to state something about the curial history of the matter and to mention some of the relevant facts. Mr. and Mrs. Aqbal are of Fijian origin. They have three children, two of Fijian origin, and Doreen. Mr. and Mrs. Aqbal entered Australia on 24 December 1981 under a temporary entry permit which expired on 12 January 1982. Since then they have been prohibited non-citizens within the meaning of that expression under the Migration Act 1958.
On or about 22 November 1983 Mr. Aqbal made a complaint to the Human Rights Commission concerning various alleged breaches of the human rights of himself and his family. Since then correspondence has been exchanged between Mr. Aqbal or his solicitors and the Commission. On about 4 December 1984 Mr. and Mrs. Aqbal were served with the deportation orders under challenge in this case.
On 10 December 1984 the solicitor acting for Mr. and Mrs. Aqbal wrote to the Minister for Immigration and Ethnic Affairs seeking reasons, pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977, for the decision to deport Mr. and Mrs. Aqbal. Those reasons were later furnished and are in evidence.
On 18 December 1984 the applicants filed an application for an order seeking review of the decision of the Delegate of the Minister to deport Mr. and Mrs. Aqbal from Australia, as well as a review of the deportation orders themselves. The matter first came before me in December 1984 upon an application by the applicants for a stay of the operation of the deportation orders made against Mr. and Mrs. Aqbal. I need not repeat what I said in my reasons for judgment except to say that I granted a stay of the operation of the deportation orders pending the determination of this application for judicial review.
The essential reason for the grant of the stay, as appears from my reasons for judgment of 21 December 1984, was that the Delegate of the Minister, in making the deportation orders, appeared to have proceeded on the basis that the provisions of the Human Rights Commission Act 1981 (Cwth.) were irrelevant to his task of deciding whether or not to deport Mr. and Mrs. Aqbal. This question had been considered by a Full Court of this Court in Kioa v. The Minister for Immigration and Ethnic Affairs (1984) 55 ALR 669 where a majority of the Court expressed a view on this question unfavourable to the applicants in this case. The matter then went to the High Court of Australia following the grant of special leave to appeal.
The High Court gave judgment on 18 December 1985 (reported in (1985) 60 A.L.J.R. 113) and the reasons for judgment of the members of the Court are at the heart of the case before me today. The Court (Gibbs C.J., Mason, Wilson, Brennan and Deane JJ.) gave separate reasons for judgment, and on the critical issue then before the Court the Chief Justice dissented. So far as the Human Rights Commission Act is concerned, not all their Honours considered that question. It is I think sufficient for present purposes to refer to the observations of Brennan J. on that point at p. 147, where his Honour said:
"The Human Rights Commission Act does not provide that the respositories of statutory power are bound to take the conventions into account; the preamble does no more than state what, apart from the preamble, the repositories of power were generally entitled to do, that is, to take the conventions into account. The exercise of a statutory power is not liable to be set aside merely because the repository of the power does not take into account a matter which he was entitled, but not bound, to take into account."
The reference by his Honour to the conventions is to certain international conventions which are set forth in the Schedule to the Human Rights Commission Act.
No doubt because of the views expressed by the members of the High Court in the Kioa Case, counsel for the applicants on the final hearing today did not rely on any point relating to the Human Rights Commission Act. I mention it in passing simply to explain what has happened in the matter to date.
The deportation orders were made by the Delegate of the Minister on 30 November 1984 and they followed the submission to him of a report signed by Mr. Dwyer, the Director of the Enforcement Section of the Department of Immigration and Ethnic Affairs dated 30 November 1984.
The report refers to many matters relating to the applicants but, so far as relevant to the submissions of counsel for the applicants to which I shall refer in a moment, it makes the following statements:
"Personal Circumstances
17. Mr. and Mrs. Aqbal were interviewed on 16.10.84 and provided the following information:
...
their daughter is continuing to receive specialist treatment for an ear problem."
"Summary/Assessment
...
24. The medical condition of Doreen Aqbal, aged 10 years, and the unavailability of treatment in Fiji has been put forward. A specialist has stated that the child's ear problem is satisfactory but there is a possibility of recurrence which may require surgery. The Commonwealth Medical Officer is of the opinion that the child could be treated in Fiji. In any event, the girl is an Australian citizen and could return here for treatment as necessary."
In the section 13 statement of reasons the following passage occurs under the heading "Findings on material questions of fact":
"The applicants were interviewed on 15 October 1984 and provided the following information: ... their daughter is continuing to receive treatment for an ear problem."
Later in the same statement in paragraph 16 under the heading "Reasons for my decision", the following appears:
"16. In considering whether to deport the Applicants I took into account their personal circumstances, including their stated desire to remain in Australia. In particular, I had regard to the fact that the Applicants have a ten year old daughter who is Australian citizen. If the Applicants were deported their daughter would either go with them, in which case she would lose the advantages of living in Australia, or remain here, in which case she would be separated from her parents."
There is in evidence before me other material relating to the ear problems of Doreen Aqbal, including a copy of a letter from Dr. Frank Elsworth of January 1984, the original of which is in the Ministerial file which says:
"Doreen Aqbal has suffered from 'glue ear'. Her ears are currently satisfactory.
There is a problem of possibility of recurrence of her ear problems which may require further surgery. To my knowledge this service is not available in Fiji."
Counsel for the applicants in reliance upon the judgment of the High Court in the Kioa Case submitted that the rules of natural justice apply in this case in relation to the making of the deportation orders under challenge and in particular he submitted that the Delegate of the Minister who made the deportation orders should have considered certain personal circumstances relating to Doreen Aqbal, namely, her need for specialist treatment for her ear problem which could require surgery in the future. He submitted that although this question was referred to in the submission to the Delegate, it was plain that there was a dispute on the question of the availability in Fiji of surgical facilities to enable the ear problem of Doreen to be treated if it should recur and that although the Commonwealth Medical Officer expressed a view to the effect that the ear problem could be treated in Fiji, nevertheless the applicants were entitled to further examine the question and to put before the Delegate additional material to support their argument that this treatment was not in fact available in Fiji.
Particular reliance was placed by counsel for the applicants upon certain passages from the judgments of Mason, Wilson, Brennan and Deane JJ. in the Kioa Case. They are to much the same effect so far as present purposes are concerned and I will simply refer to a portion of what Mason J. said about the question. His Honour said at p. 128:
"But what does procedural fairness entail in its application to the exercise of the discretionary power conferred by s. 18? It would be going too far to say that fairness requires that in all cases in which a deportation order is to be made notice should be given to the prohibited immigrant of the intention to make such an order and of the grounds upon which it is to be made. The Migration Act plainly contemplates that in the ordinary course of events a deportation order will be made ex parte. And the prohibited immigrant may be a person who, intent upon remaining in Australia without lawful right or title, has evaded the authorities and will continue to do so."
A little later his Honour said:
"These considerations indicate that, in the case where the reason for the making of the order is that the person concerned is a prohibited immigrant, the dictates of natural justice and fairness do not require the giving of any advance notice of the proposed making of the order: Salemi (No. 2) at 452-453, and Ratu at 480.
But it may be otherwise where the reasons for the making of the order travel beyond the fact that the person concerned is a prohibited immigrant and those reasons are personal to him, as for example, where they relate to his conduct, health, or associations. And if the order is made in consequence of a refusal to grant a further entry permit to him, the reasons on which that refusal is based may require that as a matter of fairness the person affected should have the chance of responding to them."
A little later at pp. 128 and 129 his Honour said:
"recent decisions illustrate the importance which the law attaches to the need to bring a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it."
In my opinion, it is apparent from the report of Mr. Dwyer to the Delegate that consideration was given by the Department to the assertion on behalf of the applicants that treatment for the ear condition of Doreen was unavailable in Fiji and to the fact that a specialist had stated that there is a possibility of recurrence of the ear problem which may require surgery. In going on to say that the Commonwealth Medical Officer was of the opinion that Doreen could be treated in Fiji, it is perhaps open to the construction that the writer of the report was asserting that the view of the Commonwealth Medical Officer was to be preferred to that of the views in support of the applicants which were to the contrary. However, I do not myself construe the document in this fashion. Even if that construction for which the applicants contend is correct, I do not think it would make any difference in this case. As I read paragraph 24 of the report and the other relevant material before the Court it seems to me that the writer is summarising the case put forward on behalf of the applicants relating to Doreen's medical condition, in particular their assertion that there is no relevant treatment available in Fiji, and an assertion to the contrary made by the Commonwealth Medical Officer, without resolving that conflict of opinion or fact, whichever it be. It has not been suggested that the contents of paragraph 24 of the report of the Director of the Enforcement Section was not a material allegation, although counsel for the Minister did submit that these questions relating to the ear problem of Doreen were of fairly minor significance in the context of the report and the decision to deport.
In my view, the matters relating to the ear problem of Doreen are material and they are matters which the Minister or his Delegate should have taken into account and I am satisfied that he did so and that there is no case established for interfering with the decision to deport Mr. and Mrs. Aqbal. The weight which the Delegate gave to the fact of competing assertions about the availability of surgical treatment for Doreen's ear problem if it should recur was a matter for him, not for this Court. It is not a case like Kioa of an allegation or statement contained in the report not having been put to the deportees, which asserts material highly prejudicial to them. It is a very different case. No matters were relied upon by counsel for the applicants other than the matters to which I have referred. I am satisfied that in the circumstances the applicants were not denied natural justice and that the application for order of review should be dismissed. The applicants are to pay the respondent's costs of the proceedings.
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