Aqbal, Mohamed v the Honourable John Christopher Hurford

[1984] FCA 471

Re: MOHAMED AQBAL; RABBUL NISHA AQBAL and DOREEN SHABNAM AQBAL
And: THE HONOURABLE JOHN CHRISTOPHER HURFORD
No. G.445 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

Administrative law - application for stay of the operation of deportation orders - whether the provisions of the Human Rights Commission Act 1981 were a consideration relevant to the decision to deport - principles relevant to the consideration of the application for the stay of a deportation order.

Migration Act 1958

Administrative Decisions (Judicial Review) Act 1977

Human Rights Commission Act 1981

HEARING

SYDNEY

#DATE 21:12:1984

ORDER

1. The operation of the decision of the respondent by which he refused to allow the first and second applicants to remain in Australia and the operation of the deportation orders made against the first and second applicants dated 30 November 1984 be stayed pending the determination of the application for review or further order;

2. The application for review be brought on for hearing as an urgent matter as soon in the first term of 1985 as possible;

3. The applicants file and serve any amended application upon which they may seek to rely in this case together with all affidavits in support on or before Friday, 25 January 1985.

4. The respondent file and serve any affidavits in reply on or before Monday, 4 February 1985.

5. The costs of the application for the stay of the deportation orders be costs in the application for review.

6. All parties are at liberty to apply on two days notice.

JUDGE1

Mohammed Aqbal and his wife, Rabul Nisha Aqbal, seek to stay the operation of deportation orders made against them by the Delegate of the Minister for Immigration and Ethnic Affairs.

Mr. and Mrs. Aqbal are of Fijian origin. They have three children, two of Fijian origin aged eight and four years, and a daughter Doreen Shabnam Aqbal, who is the third applicant in these proceedings. Doreen was born in Australia on 17 September 1984 during a visit by Mr. and Mrs. Aqbal to this country.

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 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 that time correspondence has been exchanged between Mr. Aqbal or his solicitors and the Commission. The essence of the complaint, as I understand it from the somewhat sparse evidence before the Court on the matter, is that the activities of the Department of Immigration and Ethnic Affairs relating to the departure of Mr. and Mrs. Aqbal from Australia are said to infringe certain human rights of Doreen and the family. An inquiry has been initiated by the Commission which has been on foot for approximately 12 months.

On about 4 December 1984 Mr. and Mrs. Aqbal were served with deportation orders dated 30 November 1984. 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 Decision (Judicial Review) Act 1977, for the decision to deport Mr. and Mrs. Aqbal. Those reasons were furnished yesterday, and a copy of them was tendered in evidence before me.

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 review of the deportation orders themselves.

It is not easy to glean from the application for review in its present form any precise grounds of attack which are made on the Delegate's decision, but the grounds have been elaborated somewhat in argument before me today. I do not find it necessary to refer to them all in any detail; it is sufficient if I mention some of them.

Before doing so, it is as well if I state briefly the principles which guide this Court when dealing with applications to stay the operation of deportation orders, which is the substance of the application before me to-day.

The Court's task is to determine whether there is a serious question to be tried in the substantive application for review and, if there is, where the balance of convenience lies.

The decided cases therefore in essence apply the principles governing applications for interlocutory injunction. There are many cases where these principles are referred to and it is sufficient that I merely adopt what was said by Gibbs C.J. in Australian Coarse Grain Pool Pty. Limited v. Barley Marketing Board of Queensland (1982) 46 A.L.R. 398, an approach which has been followed in this Court by single judges and by at least one Full Court of this Court.

The primary submission of counsel for the applicants is that the deportation orders ought to be stayed because the Delegate deliberately chose to give no weight whatsoever to the provisions of the Human Rights Commission Act 1981 and the Schedules thereto, including the relevant Articles of that Act, on the ground that he (the Delegate) regarded those considerations as irrelevant, indeed impermissible, in the light of a decision of a Full Court of this Court in a not dissimilar matter to the present, namely, the case of Kioa & Ors. v. Minister for Immigration and Ethnic Affairs, 3 October 1984.

In that case Northrop and Wilcox JJ., who prepared joint reasons for judgment, reviewed the relevant provisions of the Human Rights Commission Act including the Preamble thereto, the definition of "human rights" in sub-s. 3(1) and Articles 23 and 24 in the covenant which appear in Schedule 1 to that Act. Their Honours also considered Schedule 2 which contains the declaration of the right of the child and reference was made by them to principles 1, 2, 4, 6, 7 and 8 relating to the rights of the child.

In the Kioa Case their Honours held that there was no basis in law for the conclusion that, by reason of the Human Rights Commission Act, the Delegate of the Minister who signed the deportation orders in that case was obliged to turn his attention to the various rights and principles enunciated in the relevant international agreements. Their Honours said:

"The enactment of the Human Rights Commission Act did not and could not give rise to any new legal rights or derogate from any existing legal powers. In particular, the powers of the Minister and his various delegates under ss. 6, 7 and 18 of the Migration Act were left unaffected."

Special leave to appeal to the High Court from the decision of this Court in Kioa was granted recently. I was informed by counsel for the applicants that it is likely that the appeal will be heard by the High Court in February 1985. Counsel for the Minister argued strongly that I should approach this application on the footing of the law as it stands at present, that is to say, on the footing that the decision of the Full Court in Kioa is correct and binds me and that the fact that special leave to appeal has been granted in Kioa, a case different from the present, is an entirely irrelevant consideration.

Furthermore, counsel for the Minister argued strongly that, on the facts before me, there is nothing to suggest that the Delegate did not take into account all the relevant facts that would have to be taken into account even if the relevant Articles of the Covenant applied.

There is, I think, some force in these submissions but they would have greater weight if I was hearing the substantive application for an order of review, which, of course, I am not. I am merely hearing an application to stay the operation of the deportation orders pending the hearing of the application for review. I see no reason why that application, if it proceeds, could not be heard early in 1985: and the matter can be thoroughly examined by the trial Judge who will reach whatever conclusions are appropriate according to the facts and the law as it then stands.

My task to-day is to see whether there is a serious question to be tried at the hearing. I think there is one such question. I need not refer to the other questions save for one brief observation which I will make in a moment.

It seems to me on the material before me that the Delegate has more likely than not proceeded on the basis that the provisions of the Human Rights Commission Act are irrelevant to his task in deciding whether or not to deport the applicants. That may be a correct view in law to adopt. The Full Court has said that it is the correct view, but in the light of the fact that the High Court has granted special leave to appeal in Kioa (albeit that Kioa may ultimately turn on questions other than questions relating to the Human Rights Commission Act) it seems to me that the proper course for me to take is to direct that the application be brought on for hearing as soon as possible and that in the meantime the stay be granted. If it were not to be granted, then the application would probably become utterly academic because by the time of the final hearing those who would seek to prosecute it would be removed from Australian shores. In this branch of the law, dealing with the interaction between the Judicial Review Act, the Migration Act and the Human Rights Commission Act, there are still unchartered waters which must be examined by the Courts from time to time, and this case raises one such question.

It may take weeks or months before this case is finally determined, but I think it would be an improper exercise of discretion in this case for me to ignore both the fact that the High Court will be looking at the Kioa Case next year and to put it beyond the reach of the applicants to have whatever benefit, if any, may emerge from that review.

There was an argument put by counsel for the applicants that, because there is an inquiry on foot before the Commission, that in itself is a reason for distinguishing this case from Kioa, where it appears there was no such inquiry on foot. I will say nothing about this argument except that, as presently advised, it would be anomalous if the Minister could not exercise his power of deportation in respect of people who are not entitled to be in this country merely because an inquiry may be on foot under the Human Rights Commission Act. I have said already that the inquiry in this case appears to have been on foot for some twelve months or so and is still not determined. However, I have no final view on this question.

Accordingly the orders which I make are that:-

1. The operation of the decision of the respondent by which he refused to allow the first and second applicants to remain in Australia and the operation of the deportation orders made against the first and second applicants dated 30 November 1984 be stayed pending the determination of the application for review or further order;
2. The application for review be brought on for hearing as an urgent matter as soon in the first term of 1985 as possible:
3. The applicants file and serve any amended application upon which they may seek to rely in this case together with all affidavits in support on or before Friday, 25 January 1985.
4. The respondent file and serve any affidavits in reply on or before Monday, 4 February 1985.
5. The costs of the application for the stay of the deportation orders be costs in the application for review.
6. All parties are at liberty to apply on two days notice.