Arslan, Rafet v Durrell, John

[1983] FCA 188

Re: RAFET ARSLAN; EROL AYDIN
And: JOHN DURRELL; THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS
80 FLR 192
Nos. G140, G141, G142 and G143 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Administrative Law - Refusals to grant further temporary entry permits - Deportation orders - Applications for orders of review - Alleged denial of natural justice - Alleged improper exercise of a power - Consideration of application of rules of natural justice - Consideration of irrelevant matters in deportation orders.

Administrative Decisions (Judicial Review) Act, 1977 ss. 5, 13 and 16

Migration Act, 1958 ss. 6, 7 and 18

Administrative Law - Refusals to grant further temporary entry permits - Deportation orders - Applications for orders of review - Alleged denial of natural justice - Alleged improper exercise of a power - Consideration of application of rules of natural justice - Consideration of irrelevant matters in deportation orders - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 13, 16 - Migration Act 1958 (Cth), ss 6, 7, 18.

HEADNOTE

The applicants who were Turkish citizens and journalists by occupation were permitted to enter Australia pursuant to a temporary entry permit allowing a stay of three months in each case.

The purpose of the applicants' visit to Australia was subsequently said to be the conduct of business discussions and investigations concerning the feasibility and viability of establishing a Turkish language daily newspaper to be published in Australia.

Extensions of the permits were granted to the applicants.

On 29 October 1981 a daily Turkish newspaper called "Tercuman" commenced publication in Sydney and a request was made for a further extension of the permits to enable the applicants to remain in Australia pending the outcome of an application made by Tercuman to the Foreign Investment Review Board for registration as a foreign investment company.

In the meantime some members of the Turkish community in Australia made serious allegations against Tercuman to the effect that it was connected with extremist political activity overseas.

Pursuant to an official recommendation submitted to the Minister, he determined that both applications for an extension of stay should be refused.

An application to the Minister to review his decision was made on behalf of both applicants on 19 November 1982.

The Minister having refused to alter his determination, the applicants then requested an Immigration Review Panel review of their applications for an extension, and by letters dated 24 March 1983 the second respondent, Durrell, informed the solicitors for the applicants of the refusal of further extension of the permits.

Following further correspondence the applicants' solicitors were informed that they could make submissions to the Department. They did so.

On 3 June 1983 the Minister approved a recommendation that the applicants be deported.

The applicants then commenced proceedings seeking judicial review of the Minister's decision.

Held: (1) Section 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) does not require the rules of natural justice to be applied where, apart from that provision, there is no obligation on a person exercising a power to apply any rules.

Minister of Immigration and Ethnic Affairs v. Haj-Ismail (1982) 57 FLR 133, applied.

(2) In determining whether or not the Minister is bound to apply the principles of natural justice, the facts of the particular case may be examined.

(3) Recent cases have adopted the expression "legitimate expectation" to characterise circumstances which give rise to the application of the rules of natural justice if a decision is to be made contrary to that expectation.

(4) The circumstances surrounding the applications to extend the entry permits in the present case did give rise to a "legitimate expectation".

Minister of Immigration and Ethnic Affairs v. Haj-Ismail (supra), applied.

(5) It could be inferred that the respondents took into account, adversely to the applicants to some extent, at least, the allegations made against them by the Turkish community without the applicants being given an opportunity to defend themselves against such allegations. This had resulted in a denial of natural justice.

(6) Deportation orders set aside and applicants' applications for further entry permits to be referred to the Minister to be dealt with according to law.

Jones v. Dunkel (1959) 101 CLR 298; Turner v. Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180; 4 ALD 237; Minister for Immigration and Ethnic Affairs v. Tagle (1983) 67 FLR 164, referred to.

HEARING

Sydney, 1983, June 8, 10, 14-16; July 13; August 8. #DATE 8:8:1983

J E Mancy, for applicants.

P Flemming, for respondents.

Cur adv vult

Solicitors for applicants: Boyd, House & Partners.

Solicitor for respondents: Deputy Crown Solicitor.

MPS

ORDER

1. Order that the decision of the respondent Durrell of 24 March, 1983 be set aside.

2. Order that the decision of the Minister of 3 June, 1983 affirming the aforesaid decision of the respondent Durrell be set aside.

3. Direct that the applications of each of the applicants for a further entry permit pursuant to ss. 6 and 7 of the Migration Act, 1958 be referred to the Minister to be dealt with by him or by officers of his department according to law.

4. Order that the deportation orders made by the Minister on 3 June, 1983 be set aside.

5. Order that the respondents pay the applicants' costs.

JUDGE1

The nature of the application

These are applications by Rafet Arslan and Erol Aydin for orders of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). They involve common questions of fact and of law and are heard together by consent. Each applicant has made two applications under the Act. The applications by each of them dated 6 June, 1983 seek a review of the decision of the Minister of State for Immigration and Ethnic Affairs to refuse to grant to the applicants a further temporary entry permit pursuant to sub-section 6(2) of the Migration Act 1958. Further applications by each applicant dated 8 June, 1983 claim further orders of review under s.5 of the Act of the decision of the Minister on 3 June, 1983 to order the deportation of the applicants as prohibited immigrants pursuant to s.18 of the Migration Act, 1958.

On 8 June, 1983, I granted a stay of the orders of the Minister directing deportation of each of the applicants. This suspension of the operation of the deportation order and a stay of proceedings thereunder was continued by consent until further order on 10 June, 1983, upon certain undertakings being given by the applicants.

The facts

Both applicants are Turkish citizens who were permitted to enter Australia pursuant to a temporary entry permit permitting a stay of three months. Mr. Arslan arrived in Australia on a business visitor's visa on 31 August, 1981 and was granted an entry permit for a three month's stay. Mr. Aydin arrived in Australia on 22 October, 1981 on a business visitor's visa and was granted an entry permit for a three month's stay.

Before being granted a visitor's visa in Germany, each applicant signed a printed form of declaration containing, inter alia, the following:

"I declare that: . . . - I and my accompanying family members will not engage in employment or in formal studies in Australia, will not seek authority to settle in Australia and will leave Australia at the end of the authorized visit period.

The application for permission to visit Australia referred in each case to a letter from a Turkish daily newspaper. In the case of Mr. Arslan, this letter in the form of a "certificate" dated 18 May, 1981, said:

"This is to certify that Mr. Rafet Arslan is in the employ of our firm working as a free-lance reporter and that he has been commissioned by our daily newspaper to begin a journey to Australia. Tercuman - Newspaper Ter - Printers For the Management Serhat Ilicak"

In the case of Mr. Aydin, the "certificate" dated 30 September, 1981, said:

"We hereby certify that our staff member Mr. Erol Aydin, . . . . . , is about to embark, as a journalist, on a trip to Australia. The purpose of his journey will be to write a series of articles about Turkish workers in Australia. We hope that you will assist Mr. Aydin when issuing his visa to Australia for which we thank you in advance. Yours faithfully, Ter-Printers Pty. Ltd. Tercuman Newspaper For the Management Serhat Ilicak (managing Director)"

In each case, the "visitor visa" issued by the Australian Embassy in Germany bore the stamp "employment prohibited".

The purpose of the applicants' visit to Australia was subsequently said to be the conduct of business discussions and investigations, on behalf of a company in the Federal Republic of Germany styled Ter-Druckerei GmBh, concerning the feasibility and viability of establishing a Turkish language daily newspaper to be published in Australia. Both applicants are journalists by profession, although Mr. Aydin is more involved in management than Mr. Arslan.

On 29 October, 1981, publishing commenced in Sydney of a daily Turkish newspaper called "Tercuman" Turkish Daily Newspaper ("Tercuman") and publication of that newspaper continues. Tercuman is published by Tercuman Turkish Daily Newspaper Pty. Limited which is a locally owned company. The applicants' employer, the German company Ter-Druckerei GmBh, made application to the Foreign Investment Review Board ("F.I.R.B.") on or about 29 October, 1981 for approval to acquire .0% of the issued share capital of Tercuman Turkish Daily Newspaper Pty. Limited. No decision has been received to date from F.I.R.B.

On 26 November, 1981 Mr. Arslan was granted a further temporary entry permit permitting him to remain in Australia until 3 March, 1982. A further temporary entry permit was granted to Mr. Aydin on 19 January, 1982 permitting him to remain in Australia until 22 April, 1982. On 4 March, 1982, after the expiry date of Mr. Arslan's further entry permit, a request for an extension of his visa was made to the Department of Immigration and Ethnic Affairs. Mr. Arslan's passport was forwarded with the letter of request. A similar request was made on behalf of Mr. Aydin on 28 April, 1982. Both applications to extend the stay made reference to the application to F.I.R.B. for the Tercuman Turkish Daily Newspaper Pty. Limited to be registered as a foreign investment company and asked that the two applicants be permitted to remain in Australia until the outcome of the application to F.I.R.B. was known. No reply to these requests was received by the applicants as at 30 September, 1982 when the applicants asked for the return of their passports. These were said to be required by the authorities in Germany to complete certain formalities relating to their permanent residency in Germany.

On 28 September, 1982, Mr. R.S. Henry, Assistant Secretary Operations 2 Branch and Mr. D.W. Weeden, Acting Assistant Secretary Ethnic Affairs and Citizenship Branch made a submission to the Minister recommending the departure of the applicants:

"This submission recommends that we require the departure of two overstayed Turkish business visitors Mr. Rafet Arslan and Mr. Erol Aydin who came here with their families on behalf of the Turkish language newspaper Tercuman. -

2. Tercuman is currently published in Australia by a sole-trader operation pending a decision by the Foreign Investment Review Board on a proposal for the establishment of an Australian based company. The German parent company would have a substantial shareholding.

3. Serious but unconfirmed allegations from a variety of official and other sources have been made against Tercuman and some of the personnel who are currently working for it. These include: - the newspaper plans to channel money from Australia to support extremist political activity overseas; - some personnel may be connected with the Grey Wolves - a right wing terrorist group, and are involved in illegal drug and arms trafficking.

4. The present operation and the investment proposal rely heavily on the employment for lengthy periods of overseas personnel. On these and a number of other associated grounds (ineffective local editorial control and inadequate involvement of the local community) the proposal does not satisfy the Government's existing foreign investment requirements for ethnic newspapers.

5. Mr. Arslan and Mr. Aydin entered Australia late last year. They came on visitors' visas which they overstayed, and have been employed by the paper without approval. Treasury has advised that it will not finalise its report to the FIRB until their immigration status is resolved.

6. Details of the visitors, their dependents and two other Tercuman personnel at present in Australia (Mr. Ali Gumus and Mr. Nafiz Ilicak) are attached. Both Mr. Arslan and Mr. Aydin have sought to regularise their stay. Mr. Ilicak is also overstayed but his whereabouts are unknown.

COMMENT

7. The company and its Australian principals can be expected to criticise a requirement that Mr. Aydin and Mr. Arslan leave before the FIRB proposal is finalised. Mr. Gumus does however have approval to work and to remain in Australia until 7 November 1982. The company has had time to recruit and train local staff.

8. Given the nature of the allegations, the departure of Aydin and Arslan will put the Government in a better position to screen future sponsored Tercuman personnel.

RECOMMENDATION

9. It is recommended that the departure of Messrs Arsland and Aydin together with their wives and children be now required - on the grounds that they have been here as visitors for periods well in excess of the normal maximum allowed (6 months). They are now prohibited immigrants in that they do not hold valid temporary entry permits and under the Migration Act they do not qualify to be considered for permanent residence.

10. It is proposed also to enquire of them the whereabouts of Nafiz Ilicak and to take appropriate action to effect his departure.

11. In the event that the two visitors and their families do not make voluntary departures they should be subject to the full rigors of the Migration Act ie. prosecution for becoming prohibited immigrants and working without authority, and deportation."

A note apparently made by the then Minister, appears at the end of the submission: "Agree totally."

On 8 October, 1982 the Minister determined that both applications for an extension of stay were refused. An application to the Minister to review his decision was made on behalf of both applicants on 19 November, 1982. This application was based on the claim that the applicants' expertise was required for the survival and operation of the Tercuman newspaper.

On 17 November, 1982 Mr. David Goman, an accountant acting for Ter-Druckerei GmBh in its application to F.I.R.B., spoke by telephone to Dr. On Kit Tam, then an officer employed in the Foreign Investment Division of the Department of Treasury. Dr. Tam's note of the conversation, which is not challenged, is as follows:

"Gorman (sic) rang to say that two employees (Arslan and Aydin) of Tercuman sent from Germany to work in Australia had now been asked by the Dept. Immigration to leave the country within 14 days. Gorman (sic) said he wanted to know when the Govt. would make a decision on the proposal. Mr. Gorman (sic) appeared to be under the impression that approval by the Govt. of the proposal would reverse Immigration's decision not to extend the visa for the two people concerned. I asked how important the two people were for the running of the newspaper. Gorman (sic) said they were vital. I said if that's the case, would the parties still want to go ahead with their proposal as these two gentlemen were to leave the country in two weeks. Gorman (sic) said the proposal would go ahead and he said that a quick decision by the Govt. would be able to allow the two people's continued stay. I said we were still examining the proposal and waiting for advice from relevant Depts. I noted that decisions by Govt. in the foreign investment process were made without prejudice to considerations by other Govt. Departments."

It would appear that the application to F.I.R.B. became dormant upon the withdrawal of one of the promoters, Mr. Mutluol in early 1983. In cross-examination, Mr. Gorman said that this year he told Dr. Tam that it was possible that there would be a change in the application but that he was awaiting instructions from his principals.

On 16 December, 1982, advice was received by the Department to the effect that, following an approach from Mr. A. Incekara, the Minister was prepared to reconsider his earlier decision that the applicants be directed to depart and that he would agree to their temporary stay for a further period of one month. Mr. R.S. Henry then prepared a submission to the Minister recommending deportation of the applicants. The submission dated 22 December, 1982 referred to the Minister's concern that the Tercuman newspaper would close down if the applicants were required to depart and that closure would result in loss of employment for several Australian residents. The Minister was also informed that the foreign investment application to R.I.R.B. was not in fact "reliant" on the applicants remaining here. It was suggested to the Minister that necessary enquiries about the employment future of Tercuman employees could be instituted as a matter of urgency to allay his concerns. The submission concluded that the Minister's earlier decision to require the departure of the applicants would be quite justified as both applicants were prohibited immigrants who by working in Australia and by overstaying, had failed to abide by the conditions of their entry as visitors.

On 25 December, 1982, the Minister advised Messrs. Henry and Migus (another officer of the Department) that in view of their submission and discussions with Mr. Migus, he now believed that the applicants ought to depart.

The applicants then requested an Immigration Review Panel review of their applications for an extension. Each request sought a review of the decision to "refuse my application to remain in Australia until the outcome of an application to the Foreign Investment Review Board for the 'Tercuman' newspaper to be registered as a foreign company". On 16 February, 1983 the Immigration Review Panel advised the applicants by letter that their requests for review were not eligible for consideration by the Panel.

By letters dated 24 March, 1983 in similar terms, the respondent, John Durrell, an officer of the Department, informed the solicitors for the applicants of his refusal to further extend their temporary entry permits, saying:

"Visitors are expected to leave Australia by the expiry date of the temporary entry permit granted on their arrival. Only when special circumstances arise may visitors apply for an extension of the initial authorised period of stay. Extensions are not normally granted where this will result in a total visit period in excess of six months. Mr. Aydin arrived in Australia on 22 October 1981 and was granted a temporary entry permit allowing a three month stay. His application of 11 May 1982 for a further extension was refused. Business visit visas are issued for the purpose of business discussions and/or investigation. Mr. Aydin was issued a multiple entry business visit visa for a stay of three months. The request for a further extension of stay is based on the claim that his expertise is required for the survival and operation of the Tercuman Newspaper. Mr. Aydin signed a declaration that he would not engage in employment during his visit and would depart from Australia by no later than the expiry of the temporary entry permit granted on his arrival. The issue of the visa constituted acceptance that the declaration was made in good faith and would be honoured. From his own statements it is clear that Mr. Aydin has not abided by these entry conditions and can no longer be considered a genuine visitor. He has been working and has now been in Australia for a period far in excess of the normal maximum six months period of stay permitted visitors. The basis of his request is inconsistent with the purpose of his entry. In the circumstances I have reviewed the application but the earlier decision to refuse the request has been maintained. As Mr. Aydin is a prohibited immigrant it is expected he will leave Australia within 14 days of the date of this letter. If he fails to depart as directed, there will be no option but to institute deportation proceedings."

Shortly before writing this letter, Mr. Durrell had received a report from Mr. D.J. Crossland, another officer of the Department. The report dated 15 March, 1983 arose out of allegations made in an editorial by Mr. Askan Baran in another local Turkish newspaper that the applicants are "like two fingers of a hand, of a formidable organization providing foreign currency for weapons and drug trafficking, between Turkey and Europe and which has now unfortunately extended to Australia".

In his report, Mr. Crossland said that, at a meeting with members of the Baran family, he was freely given a deal of information which the Barans believed to be correct. His report included this statement:

"(7) The Barans believe, based on information from both Turkey, and the Turkish community in Australia, that the organization which publishes the newspaper 'Tercuman' in Turkey and Germany is a front for a number of illegal operations including arms and drug running. Further they say that: * When first established in Australia the owners made it clear they would not mind losing $100,000 or more a year. * 5,000 copies are printed daily however only 500 copies are sold. * The excess rate of production implies to readers and advertisers that it has a widespread distribution and therefore is a creditable publication. * In Germany the newspaper had 26 branch offices yet it only sold 30,000 papers per period. This aroused the suspicions of the German Police and many of the offices were closed down. * 'Tercuman' finances its nefarious activities by acting as an unofficial currency exchange bank. It is claimed to offer a higher than normal exchange rate to Turkish nationals returning to Turkey after for instance a period in Germany as a guest worker By offering this favourable rate they are able to acquire large amounts of a stable currency such as German marks with which they then persue (sic) illegal activities. * 'Tercuman' represents an extreme right wing ideology. * A person by the name of F. Mutluol who previously published the 'Tercuman' came to the Sydney office of D.I.E.A. recently and told a Mr. Wilson that Aydin and Arslan should not be allowed to remain in Australia. When this became known to the owners of the newspaper his services as a publisher were immediately dispensed with. The Barans say they wrote the editorial not only because of their opposition to what they see 'Tercuman' represents but also to express an opinion of annoyance by the community that these people should be allowed to stay in Australia after being directed to leave. I questioned them on whether their complaint was really based on a commercial interest and whilst unable to assess the veracity of their reply simply recorded their statement that as their newspaper was a fortnightly publication and Tercuman was daily they did not compete for readers."

The applicants' solicitors requested a statement of reasons for Mr. Durrell's decision of 24 March, 1983 pursuant to s.13 of the Act. Reasons for the decision, purportedly made under sub-section 6(2) of the Migration Act, 1958, were provided by letters of 9 May, 1983.

They were as follows:
"A. My Findings on Material Questions of Fact

. The applicant is a Turkish citizen.
. The applicant arrived in Australia on 22 October 1981 and was granted a temporary entry permit for a stay of three months.
. The application to visit Australia contains information that extensions of stay after arrival will be granted only in special circumstances and will not normally be granted where this will result in a total visit period in excess of six months.
. Before being granted a visitor visa overseas the application signed an undertaking that, inter alia, he and his accompanying family members would leave Australia at or before the end of the authorised visit period and would not undertake employment or formal studies while in Australia.
. The applicant by his own statement has indicated that he has undertaken employment in Australia as Manager and assistant editor of 'Tercuman' newspaper.
. An application for a further temporary entry permit was submitted to Sydney Regional Office on 26 May, 1982 but a further temporary entry permit was not granted.
. The applicant is not required to be in Australia for the purpose of the Tercuman Newspaper foreign investment proposal receiving consideration.
. The applicant has been a prohibited immigrant since 22 January, 1982.

B. The Evidence or Other Material on which my findings are based
In making the above findings the material to which I had regard was:
. Submissions to the former Minister from Mr. R.S. Henry, Assistant Secretary, Operations 2 Branch and Mr. D.W. Weeden, Assistant Secretary, Ethnic Affairs and Citizenship Branch dated 28 September and 22 December 1982 together with annexures thereto.
. Request for Review dated 28 January 1983 and signed by the applicant - regarding the employment aspect. (Presumably this is intended to be a reference to the statements made in the request for review in each case as to employment by the applicants with the Turkish newspaper in Sydney.)

C. The Reasons for the Decision

. The applicant has been in Australia for a period well in excess of the normal maximum permitted visitors.
. By undertaking employment he has contravened the conditions of his entry and has failed to honour the declaration he made overseas which was accepted in good faith.
. It is not considered that circumstances have been presented which would warrant the granting of a concession outside of normal visitor provisions.
. The applicant was already a prohibited immigrant when he sought the grant of a further temporary entry permit.
In the circumstances I decided to refuse the application for a further temporary entry permit."

By letter dated 18 May, 1983, the Secretary of the department wrote to the solicitors for the applicants saying:

" . . . As Mr. Rafet Arslan and Mr. Erol Aydin are prohibited immigrants, consideration will be given to ordering their deportation. They are invited to make submissions directed to the Regional Director, Department of Immigration and Ethnic Affairs, Sydney as to their personal circumstances insofar as they may be affected by the Minister (or his delegate) making or deciding not to make an order for deportation and other relevant matters which they consider relevant in the exercise of the discretion under section 18 of the Migration Act 1958. That discretion will be considered in the light of policy in respect to prohibited immigrants stated in chapter 3 of the departmental Residence Control Manual (available for inspection at the regional office of the Department of Sydney; an extract is attached.) Wherever possible, those submissions should be supported and verified by satisfactory evidence. . . "

By a briefing paper dated 19 May, 1983, Messrs. Durrell and Henry reported to the Minister in these terms:

"To provide you with background information in anticipation that a Mr. Baran of 'Yorum', a Turkish newspaper, will raise the question of the departure of Arslan and Aydin with you next Saturday, 21 May at your press conference preceding the ethnic communities reception in Sydney. He may be critical of delays in effecting their departure.

BACKGROUND

Arslan and Aydin arrived in Australia, with their families, in August and October, 1981 respectively as business visitors. Since arrival they have engaged in employment with 'Tercuman' a Turkish newspaper, contrary to the conditions of their entry. Both have been prohibited immigrants for in excess of 12 months. Applications for extension of stay have been refused and both have failed to comply with directions to depart. There have been delays in finalising these cases due to: . Tercuman has an investment proposal with the Foreign Investment Review Board and claimed Arslan and Aydin were essential to the papers continued operations. Enquiries revealed that the proposal is not reliant on their continued stay. . Solicitors representing Arslan and Aydin have continued to challenge our decision to refuse extension of stay, most recently under the provisions of the ADJR Act. Appropriate statements were issued by the Department on 9 May 1983.

CURRENT SITUATION

Deportation action is currently under consideration. No action has been implemented to take them into custody. In view of the continued involvement of solicitors in the cases and anticipated challenge to deportation action, Arslan and Aydin have been invited, through their solicitors, to make submissions not later than 1 June 1983 as to the effect deportation action may have on their personal circumstances."

By letter dated 1 June, 1983 from Mr. Aydin, the applicants responded to the invitation to make submissions on the question of whether they should be deported. They denied breach of any undertaking. They emphasised that they sought only further temporary entry permits pending a decision by F.I.R.B. The letter went on:

" . . . I submit that I and my colleague, Mr. Rafet Arslan, should not be treated as ordinary visitors who have 'over-stayed' for the following reasons:

(i) We have not been 'employed' in Australia in the sense of taking advantages of employment ' . . . rightfully available to the legally residents members of the community'. (ref. 3.1.4 of Chapter 3 of the Department of Immigration and Ethnic Affairs' Residence Control Manual'). All expenses for myself and Mr. Aydin (sic) have been met by TER - Druckerei GmBh while we have been in this country.

(ii) We have not 'deliberately overstayed' our permitted visas with a view to 'queue-jumping' (ref. 3.1.5. Ch.3 of the Departmental Manual mentioned above). Our stay has been extended beyond the period of our Temporary Entry Permits because of the failure of the F.I.R.B. to decide on the application . . .

(iii) The managerial and journalistic expertise of myself and Mr. Arslan are essential to the continued publication of the Tercuman newspaper because of its special language requirements and scale of operation (Tercuman has incurred approximately a $250,000 deficit in its operations to date). Mr. Arslan and myself are also required to train local talent.

(iv) The continued publication of Tercuman, pending a response by the F.I.R.B. to our employer's application of 29.10.81 is dependant on Mr. Arsland and myself being permitted to remain here in connection with the venture . . ."

On 3 June, 1983, the Minister approved a recommendation that the applicants be deported. A deportation case summary was prepared by Mr. A.E. Faubel for the Minister in each case. It included, in each case, the following:

"Policy Summary

It is in the public interest to ensure that persons abide by normal immigration policies and procedures and do not queue - jump by entering or remaining illegally in Australia to the prejudice of prospective applicants overseas who abide by the procedures. Presence of such queue-jumpers is inimical to Government control of immigration programs as well as impacting upon job availability for legal residents. Prohibited immigrants who do not leave voluntarily must expect to face the full weight of the law when located including expulsion by deportation is necessary.

Assessment

Aydin is a prohibited immigrant who may have worked without permission thereby committing offences under the Migration Act. He has been refused a further temporary entry permit. While it remains possible to regularize his status by the issue of a further temporary entry permit bearing in mind applicable policy and having regard to his circumstances as submitted, you may decide to order his deportation.

Recommendation

If you agree with the above assessment, it is recommended that you sign the attached order for the deportation of Erol Aydin."

On 6 June, 1983, the applicants commenced the first set of these proceedings seeking judicial review of the decision of Mr. Durrell made on 24 March, 1983. At that stage, reasons under s.13 of the Act were not available in respect of the decision of the Minister of 3 June, 1983. Those reasons were published after the commencement of the hearing of these proceedings.

So far as material, the statement of reasons, which were similar in each case, stated:

"MY FINDINGS ON MATERIAL QUESTIONS OF FACT

. . .

4. On 24 March 1983, the applicant was refused a further temporary entry permit.

5. I was invited by a submission by Mr. Rafet Arslan on his behalf and on behalf of the applicant to find that there are 'appropriate circumstances' for the granting to Mr. Arslan and the applicant a further temporary entry permit. Upon the review of the material before me, I was not satisfied that there are such 'appropriate circumstances' in the case of the applicant.

6. I was also invited by the said submission, in effect, not to decide the question of the deportation of Mr. Arslan and the applicant, pending -

(a) the resolution of an application for an Order of Review in the Federal Court of Australia of the decision on 24 March 1983 to refuse Mr. Arslan and the applicant further temporary entry permit; and

(b) the decision of the Foreign Investment Review Board in relation to the application by TER-Druckerei GmBh to participate in the Tercuman newspaper venture in Australia.

7. I was not prepared to defer my consideration of the question of the applicant's deportation as a prohibited immigrant, having regard to the fact that the applicant has remained unlawfully in Australia (for whatever reason) for a period exceeding one year.

8. I made a finding that applicant may suffer financial hardship should he be deported, due to the possible severance of his association with the Tercuman venture arising therefrom. I also find that applicant's business associates may suffer financial detriment as a result of an expulsion of the applicant.

9. I made a finding that the applicant was engaged in business activities in Australia. The applicant may have worked in Australia (contrary to the condition of his permit) as an employee of TER-Druckerei GmBh.

10. The applicant does not nor do his wife and children fulfil one or more of the conditions of section 6A of the Migration Act 1958 for the grant of a permanent entry permit.

11. The applicant did not depart Australia voluntarily since the expiration of 22 January 1982 of his permit to remain in Australia.

THE EVIDENCE OR OTHER MATERIAL ON WHICH MY FINDINGS ARE BASED

12. In making the above findings the material to which I had regard was:

(a) a submission to me by Mr. A.E. Faubel dated 3 June 1983, attaching the following documents:

(i) a letter dated 24 March 1983 from Mr. J. Durrell of my Department to the applicant's solicitor advising of his refusal to grant a further entry temporary entry permit and requesting departure within 14 days,

(ii) a statement of reasons furnished by Mr. J. Durrell of his decision; and

(iii) a letter from the applicant's solicitors dated 1 June 1983 together with enclosures, being the response to my Department's letter of 18 May 1983 inviting submissions in relation to the applicant's personal circumstances which might be affected by my making or not making a decision to order his deportation under section 18 of the Migration Act 1958; and

(b) the policy on the deportation of prohibited immigrants as articulated in Chapter 3 of my Department's Residence Control Manual.

13. I had regard also to a submission to me, in the nature of briefing paper, by Mr. Durrell dated 19 May, 1983.

REASONS FOR MY DECISION

14. The applicant is a prohibited immigrant, by reason of section 7(3) of the Migration Act 1958. His wife and two children have the same status.

15. The applicant has remained in Australia for a period well in excess of the normal maximum period permitted by policy to visitors; (paragraph 2.15.1 of Temporary Entry Handbook Part 1).

16. The applicant's immigration status has not been regularised by the grant of any permit, since the expiration of his last permit on 22 January 1982.

17. While I accepted that it remains possible to regularise the applicant's continued presence in Australia by the grant to him of a further temporary entry permit, I was satisfied that such a grant was inappropriate in the circumstances.

18. While I considered and gave weight to the matters in 12(a)(iii) above and in particular to the possible financial detriment to the applicant and his business associates resulting from his expulsion and to the possible benefit to the Turkish community in Australia from the applicant's services in Australia, those considerations did not outweigh the public interest in ensuring that non-citizens abide by immigration law and policies. The applicant pursued in Australia ventures and business activities contrary to his original stated purpose of his travel to Australia as a visitor; and remained unlawfully in Australia after the expiration of his permit.

19. The applicant did not depart Australia voluntarily when his application for a further entry permit was refused.

20. I considered in the circumstances, including the personal circumstances of the applicant, the expulsion of the applicant from Australia was warranted and accordingly I ordered his deportation.

21. Since the making of the decision I have been informed that the applicant was granted a further temporary entry permit on the 19 January 1982 valid until 22 April 1982 and having now considered this fact I have decided that it would not have made any difference to my decision made on the 3 June 1983 to order the deportation of the applicant."

The legislation

By s.6(1) of the Migration Act, 1958, an immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant. By s.6(2) an officer may, in accordance with that section and at the request or with the consent of an immigrant, grant to the immigrant an entry permit.

Section 7 provides:

"(1) The Minister may, in his absolute discretion, cancel a temporary entry permit at any time by writing under his hand.

(2) At any time while a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder and, where such a further entry permit is granted while a temporary entry permits is in force, the further entry permit shall come into force only upon the expiration or cancellation of the existing entry permit.

(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."

By s.18, the Minister may order the deportation of a person who is a prohibited immigrant under any provision of the Act. Thus, in the present case, the deportation orders were made under s.18 by reference to the provisions of sub-section 7(3).

The judicial review sought

In the first instance, the applicants challenge the decision of Mr. Durrell made on 24 March, 1983 refusing to grant a further entry permit. In this connection, they seek to invoke the provisions of paras.5(1)(a) and (e) of the Act. Under those provisions, an aggrieved person may apply to the Court for an order of review in respect of a specified type of decision on the grounds (inter alia):

"(a) that a breach of the rules of natural justice occurred in connection with the making of the decision; . . .

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made."

By sub-section 5(2), the reference in para.(1)(e) to an improper exercise of a power shall be construed as including a reference to (inter alia):

"(a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; . . .

(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case."

In support of their claim for an order of review of the refusal to grant a further entry permit, the applicants put their case in a number of ways. In the first place, they say that Mr. Durrell took too narrow a view of the employment position of the applicants. In particular, they say that Mr. Durrell failed to appreciate the true context of their employment, namely, the need for their presence in Australia for the purposes of the application to F.I.R.B. They also say that Mr. Durrell simply applied departmental policy in this area without having regard to the special circumstances surrounding their employment. In these ways, the applicants submit, the provisions of paras. 5(2)(a), (b) and (f) and thus para.5(1)(e), of the Act are satisfied. I seriously doubt that the applicants have made out a case on this branch of their argument, but, having regard to the conclusion I have reached on another submission put by the applicants, I need not resolve this question.

Alternatively, the applicants say that a denial of natural justice occurred in the refusal of their application (para.5(1)(a)). Here, they point to the circumstance that, apparently, Mr. Durrell took into account, adversely to the applicants, the grave allegations of their association with a terrorist group, without giving them an opportunity to deal with so serious a charge.

The first question to be considered is whether para.5(1)(a) requires the rules of natural justice to be applied where, apart from that provision, there is no obligation on a person exercising a power to apply any such rules. In other words, if the general law does not impose any such obligation, does para.5(1)(a) do so independently? In the Minister of Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 A.L.R. 341, the question was answered in the negative. It was held that para.5(1)(a) means that relief may be sought only where the rules of natural justice are otherwise applicable in the exercise of a power and effect has not been given to those rules (at p.347).

The next question to be determined is whether the Minister or other officer is bound to comply with the rules of natural justice when making a decision under ss.6 and 7 of the Migration Act, 1958. The point was considered by Davies, J. in Haj-Ismail. After discussing Salemi v. Minister for Immigration; Ex parte Ratu (1977) 137 C.L.R. 461, his Honour said at (p.375):

"In my opinion, the decision in Salemi's case binds this court to hold that in making an order under s.18 of the Migration Act the Minister is not bound to comply with the principles of natural justice, he may make an order under s.18 without giving the person affected a right to be heard. Though the justices were equally divided, the opinion of the Chief Justice prevailed pursuant to s.23(2) of the Judiciary Act 1901. The decision of the court, which has not been over-ruled, clearly decided the point of principle and must be followed by this court. On the other hand, the majority of the justices in Ratu's case took the view that, in appropriate circumstances, the Minister is bound, when making a decision under the Migration Act, to apply the principles of natural justice. This latter principle should be applied by this court to the effect that, in an appropriate case, the Minister is bound to comply with the principles of natural justice when making a decision under ss. 6 and 7 of the Migration Act, sections which provide for the grant and cancellation of entry permits. Thus, in determining whether or not the Minister is bound to apply the principles of natural justice, the facts of the particular case may be examined. Just as the effect of the application of the rules of natural justice must vary from case to case depending upon the particular circumstances of the case so the question of whether or not the principles apply is not itself to be determined without regard to those circumstances. Recent cases have adopted the expression 'legitimate expectation' to characterize circumstances which give rise to the application of the rules of natural justice if a decision is to be made contrary to that expectation. In Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149 at 170, Lord Enning MR referred to: '. . . some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say': see also Schmidt's case at 173; Breen v. Amalgamated Engineering Union (1971) 2 QB 175 at 191; Salemi's case (137 CLR) at 404, 419, 437-9, 452; Ratu's case (137 CLR) at 476; Heatley v. Tasmanian Racing and Gaming Commission (1977) 14 ALR 519; 137 CLR 487 at 491, 494 and 508-9; McInnes v. Onslow Fane (1978) 3 All ER 211 at 218; and Cinnamond v. British Airports Authority 2 All ER 368 at 374. The last of the cases is of particular interest because the court took the view that, in the circumstances of the case, having regard to the conduct of the persons affected, there was no legitimate expectation. At pp.374-5, Lord Denning MR said: 'These men have a long record of convictions. They have large fines outstanding. They are continuing to engage in conduct which they must know is unlawful and contrary to the by-laws. When they were summonsed for past offences, they put their case, no doubt, to the magistrates and to the Crown Court. Now when the patience of the authority is exhausted, it seems to me that the authority can properly suspend them until further notice, just like the police officer I mentioned. In the circumstances they had no legitimate expectation of being heard.' Therefore, it is necessary to look at the particular facts which are before the court."

In my opinion, the circumstances surrounding the applications to extend the entry permits in the present case did give rise to a "legitimate expectation" of the kind referred to by Davies, J. In particular, whilst the applicants were always given to understand that the department was prepared to give, and did give, the applicants adequate opportunity to put submissions on the issue of their employment and their role in the F.I.R.B. submission, the applicants had no means of knowing that, at the time, the department was being urged to deport them by other members of the local Turkish community who were making allegations against the applicants of the most serious kind.

It is true that the documentary material does not make it clear whether Mr. Durrell or the Ministers accepted the allegations at face value or, more likely, to some lesser extent. Although the submission of 28 September, 1982 refers to the allegations as "serious but unconfirmed," nowhere in the department's documents dealing with the applicants is there any suggestion that the allegations have been dismissed outright as unfounded. On the contrary, six months later, the allegations are still to the forefront in Mr. Crossland's report dated 15 March, 1983. That report was considered by Mr. Durrell when he gave his decision on 24 March, 1983. Mr. Durrell was not called, despite a reference by Senior Counsel for the applicants, Mr. Shand, Q.C., on the first day of the hearing, that Mr. Durrell had not seen fit to "show his face" in the proceedings. The Minister also was not called. No explanation for their absence was proferred. I must therefore assume that neither witness, if called, could have given evidence which would have advanced their case (see Jones v. Dunkel (1959) 101 C.L.R. 298 at p.321).

I have found this a most difficult aspect of the proceedings but, on the whole, I am driven to infer, from the absence of any evidence to the contrary, that Mr. Durrell and later, the Minister, in his affirmation of Mr. Durrell's decision under ss. 6 and 7, took into account, adversely to the applicants to some extent at least, the allegations made against them of their "Grey Wolves" terrorist associations (cf. Turner v. Minister for Immigration and Ethnic Affairs (1981) 4 A.L.D. 237 at p.241; Haj-Ismail at p.365). The absence of any documentary material rejecting the allegations as being without foundation is significant in this regard: there is a clear distinction to be drawn between an "unconfirmed" allegation on the one hand and an "unfounded" one on the other. Given the grave nature of the allegations, one would have expected to find a statement on file rejecting the imputations made if indeed that was the view of Mr. Durrell and the Minister. No such statement exists.

It follows, in my opinion, that the decision of Mr. Durrell on 24 March, 1983 refusing to grant a fresh entry permit and the affirmation of that decision by the Minister on 3 June, 1983 were both vitiated by a denial of natural justice. I propose, therefore, to order that these decisions be set aside pursuant to para.16(1)(a) of the Act.

The applicants then say that, by reason of the reliance placed upon these vitiated decisions by the Minister in his deportation orders made under s.18 of the Migration Act, 1958, those orders are themselves bad in law because they were based, in part at least, upon a misconception in that regard. Thus, it is said, the deportation orders should be set aside pursuant to para. 5(1)(e), having regard to the provisions of para.5(2)(a) of the Act. That is, the applicants submit, the deportation orders are themselves bad in law in that they proceeded upon the false assumption that the applicants had been validly refused fresh entry permits. This is not to say that an association with a terrorist group, if it be the fact, is not a proper matter to be taken into account in any exercise of power under s.18 of the Migration Act, 1958. Clearly, it is.

There can be no doubt that the deportation orders did proceed, to a significant degree, upon the assumption stated. The case is thus similar, in principle, to the decision of the Full Court in Haj-Ismail (see also The Minister for Immigration and Ethnic Affairs v. Tagle - Full Federal Court, 28 July, 1983. In other words, even accepting that the rules of natural justice do not apply to an order made under s.18, such an order will be set aside if, as here, the Minister, in making the order, took into account an irrelevant matter such as a wrongly based assumption that the applicants had been properly refused fresh entry permits.

I hold, therefore, that because the deportation orders made under s18 were wrongly based to a significant degree, for the reasons I have given, they should be set aside also. I propose to so order. The respondents must pay the applicants' costs.

I make the following orders:
1. Order that the decision of the respondent Durrell of 24 March, 1983 be set aside.
2. Order that the decision of the Minister of 3 June, 1983 affirming the aforesaid decision of the respondent Durrell be set aside.
3. Direct that the applications of each of the applicants for a further entry permit pursuant to ss. 6 and 7 of the Migration Act, 1958 be referred to the Minister to be dealt with by him or by officers of his department according to law.
4. Order that the deportation orders made by the Minister on 3 June, 1983 be set aside.
5. Order that the respondents pay the applicants' costs.