Aygun, Servet v Hodges, the Honourable John Charles, Minister of State for Immigration & Ethnic Affairs

[1983] FCA 36

Re: SERVET AYGUN
And: THE HONOURABLE JOHN CHARLES HODGES, MINISTER OF STATE FOR IMMIGRATION AND
ETHNIC AFFAIRS (1983) 68 FLR 276
No. G33 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.(1)

CATCHWORDS

Administrative Law - Judicial review - deportation of prohibited immigrant - whether failure to pay regard to relevant matters - whether alleged departmental oversight a relevant matter - whether failure to consider same an error of law.

Administrative Decisions (Judicial Review) Act 1977 s.5, s.13

Migration Act 1958 s.6(2A), s.6A, s.18

The Queen v Australian Broadcasting Tribunal (1979) 144 CLR 45

Sean Investments Pty. Limited v McKellar (1981) 38 ALR 363

Pochi v Minister for Immigration and Ethnic Affairs (1983) 43 ALR 261

Administrative Law - Judicial review - Deportation order - Prohibited immigrant - Whether Minister or delegate was obliged to give consideration to departmental practice - Whether Minister or delegate erred in law - Whether Departmental officer had a duty to advise applicant of effect of legislation - Immigration and aliens - Crown - Whether Minister or delegate erred in law - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 13. Migration Act 1958 (Cth), ss 6(2A), 6A, 18.

HEADNOTE

Section 6(2A) of the Migration Act 1958 (Cth) (as amended) provides as follows:

"The Minister may, in accordance with this section

and at the request or with the consent of an immigrant

who has entered Australia grant to the immigrant an

entry permit other than a temporary entry permit."

The Migration Act Amendment Act (No. 2) of 1980 which inserted ss 6(2A) and 6A in the Act received the assent of the Governor-General on 17 December 1980 and came into operation on 14 January 1981.

The applicant had entered Australia on 12 November 1980 with a temporary entry permit which had been granted to him under s. 6 of the Migration Act 1958 (the Act). The Minister for Immigration and Ethnic Affairs (the Minister) made a decision to deport the applicant as a prohibited immigrant and on 9 October 1981 a delegate of the Minister made the deportation order pursuant to s. 18 of the Act.

Pursuant to the provisions of s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), (the Judicial Review Act), the applicant sought an order of review of the decision on the ground that the delegate had erred in law in failing to consider a relevant circumstance, that a Departmental officer had breached his duty by failing to advise the applicant on or about 18 December 1980 that, when s. 6A of the amending Act came into effect, the applicant might eventually be eligible to apply under s. 6A of the Act for an entry permit on strong compassionate or humanitarian grounds.

The applicant did not obtain reasons for the decision under s. 13 of the Judicial Review Act, but it was contended on his behalf that the failure of the Departmental Officer to advise the applicant was a relevant consideration which the Minister or his delegate was bound to take into account in the exercise of his discretion under s. 18 of the Act.

Held: (1) The discretion of the decision-maker under s. 18 of the Migration Act 1958 was not qualified by a requirement that he was obliged to take into account departmental happenings of the nature relied upon.

(2) The applicant had failed to establish any error of law on the part of the Minister.

(3) Accordingly, the application would be dismissed.

R. v. The Australian Broadcasting Tribunal; Ex parte 2 H.D. Pty Ltd (1979) 144 CLR 45; Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363; Pochi v. Minister for Immigration and Ethnic Affairs (1983) 43 ALR 261, referred to.

HEARING

Adelaide, 1982, November 24, 29; December 7; 1983, March 2, 11.

#DATE 11:3:1983

APPLICATION.

Pursuant to the provisions of s. 5 of the Administrative Decisions (Judicial Review) Act 1977 the applicant applied for an order of review of a decision by the respondent Minister for Immigration and Ethnic Affairs to deport the applicant as a prohibited immigrant.

S.W. Tilmouth, for the applicant.

I. Fairbank, for the respondent Minister for Immigration and Ethnic Affairs.

Cur. adv. vult.

Solicitor(s) for the applicant: Legal Services Commission.

Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.

J.D.W.

ORDER

1. The application of Servet Aygun for a review of the decision of the respondent be dismissed.

2. The applicant to pay the costs of the respondent the same to be taxed if not agreed. Application dismissed.

JUDGE1

In this matter Servet Aygun ("the applicant") seeks the review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Review Act") of a decision by the Minister for Immigration and Ethnic Affairs ("the Minister") to deport him from Australia. The delegate of the Minister made the order pursuant to s.18 of the Migration Act 1958 ("the Act"), ordering on 9 October 1981 the deportation of the applicant as a prohibited immigrant, as indeed he was. Counsel for the applicant during the hearing ultimately identified and confined the only error of law alleged as having been made in making the deportation order as follows:

"The error of law is that the delegate failed to consider a relevant circumstance, namely that the applicant was not advised on or about 18 December 1980 that he might eventually be eligible to apply under s.6A of the Act for an entry permit on strong compassionate or humanitarian grounds."

This alleged failure on the part of the Minister was not established on any of the material before me in that the applicant had not obtained reasons under s.13 of the Review Act for the decision. However the Minister through his counsel conceded that his delegate at the relevant time did not take into account what was said or not said by an officer of his Department on 18 December 1980.

A statement of agreed facts makes clear when supplemented by facts deposed to by the applicant in his affidavit what was said on or about 18 December 1980 and in what circumstances. I set out in full the statement of agreed facts.

"1. The applicant aged 25 (born 24/9/57), is a Turkish citizen.

2. The applicant legally entered Australia on the 12th day of November 1980 pursuant to a temporary entry permit granted to him pursuant to section 6 of the Migration Act 1958 (as amended and hereinafter referred to as "the Act").

3. Conditions of the said temporary permit included:

(1) entry into Australia before the 30th of November 1980

(2) a maximum stay of three months

(3) prohibition from obtaining employment within Australia.

4. The Migration Act Amendment Act (No. 2) of 1980 received the assent of the Governor General on the 17th day of December 1980 and came into operation on the 14th day of January 1981.

5. By a press release dated the 19th day of June 1980 the then Minister for Immigration and Ethnic Affairs The Honourable Ian McPhee said; 'The Government has decided to provide the opportunity for the majority of illegal immigrants who arrived in Australia before 1st January 1980 to regularise their status in Australia. From today until the end of 1980 these people will be able to apply for permanent resident status under the Regularisation of Status Programme (ROSP)', and also announced that amendments to the Migration Act would be introduced into the Parliament to clarify and limit the categories of persons eligible to be considered for permanent residence in Australia following their arrival in Australia as temporary entrants. (These amendments being contained in the Migration Act Amendment Act (No. 2) of 1980) 6. On or about the 18th day of December 1980 the applicant went to the Perth Office of the Department for Immigration and Ethnic Affairs and enquired whether there was any way that he could be permitted to remain in Australia when his said temporary entry permit expired. He was not advised at this time, or at any other time, of the provisions of the Migration Amendment Act (No. 2) (supra), or as to its applicability to his circumstances.

7. The applicant's said temporary entry permit expired on the 12th day of February 1981 and thereafter he became a prohibited immigrant. He has remained in Australia from that time until the present date.

8. By Deportation Order dated the 9th day of October 1981 the Deputy Secretary to the Department of Immigration and Ethnic Affairs, a Delegate of the Minister of State for Immigration and Ethnic Affairs for the purposes of section 18 of the Act, purported to order that the applicant be deported from Australia on the ground that he was a prohibited immigrant.

9. On or about the 23rd day of September 1982 the applicant was arrested as a deportee pursuant to section 39(1) of the Act and he has since that date, remained in custody at Her Majesty's Adelaide gaol pursuant to the direction of the respondent.

10. The applicant applied for an Order of Review of the said deportation order to this Honourable Court on the 15th day of November 1982.

DATED this 2nd day of March 1983

Signed:Susan E. O'Connor Signed: B.J. O'Donovan Solicitor for the Applicant Solicitor for the Respondent"

The applicant in his affidavit gave additional details of the interview referred to in paragraph 6 of the agreed statement of facts. He said:

"4. After my arrival in Perth in the State of Western Australia my sister and I attended on about the 18th day of December, 1980 at the Department for Immigration and Ethnic Affairs to see if I would be able to stay under the amnesty which had been talked about in the newspapers. We were told by an officer of that Department that I was not able to apply under the amnesty as I was then legally in the country. We asked if there was any other way in which I would be able to stay. We suggested that my sister Sukran could be a guarantor for me but we were told that there was no possibility that I could remain in Australia. I then asked for another 3 months visa but the officer told us to come back just before the visa expired and apply at that time. He also told us that we could apply to our local Member of Parliament and ask that person to approach the Minister. I was not told at this time or at any other time by an officer of the said Department that I could apply or become eligible to apply for an entry permit on compassionate or humanitarian grounds. I believe that such grounds existed because of the members of my family who were already resident in Australia."

Counsel for the applicant contended that on 18 December 1980 the officer of the Department was in breach of his duty in that he failed to advise the applicant that when s.6A came into effect in mid January 1981 the applicant might be eligible to apply for an entry permit under s.6A(1)(e). He said that this failure was a relevant consideration which the Minister or his delegate were bound to take into account in the exercise of his discretion under s.18.

Before considering the crucial question whether under that section there was an obligation in law on the Minister or his delegate to give consideration to any such circumstances, it is desirable to emphasize the relevant facts. I can not see that the Minister's press release of 19 June 1980 is of any significance. It had no application to the applicant as he did not arrive in Australia before 1 January 1980 and was not in Australia at the time of its release. The amending Act which inserted s.6(2A) and s.6A in the Act received the assent of the Governor General on 17 December 1980 and was proclaimed to come into effect 28 days from that date. Section 6(2A) is in the following terms:

"(2A) The Minister may, in accordance with this section and at the request or with the consent of an immigrant who has entered Australia, grant to the immigrant an entry permit other than a temporary entry permit."

Section 6A is as follows:

"6A (1) An entry permit shall not be granted to an immigrant after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

(a) he has been granted, by instrument under the hand of a Minister territorial asylum in Australia;

(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed immigrant; or

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.

(2) An entry permit shall not be granted to an immigrant in respect of whom the condition specified in paragraph (1)(a) is fulfilled (whether or not any other condition specified in sub-section (1) is also fulfilled in respect of him) otherwise than by the Minister

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) . . .

(8) In this section, a reference to an entry permit shall be read as a reference to an entry permit other than a temporary entry permit."

The contention of the applicant was that he should have been advised on 18 December 1980 that during the period commencing on 14 January 1981 (the date when s.6(2A) and s.6A came into operation) and concluding on 12 February 1981 (the date when his temporary entry permit expired) he was eligible to apply for an entry permit into Australia under s.6A(1)(e). I leave aside the question whether the applicant had any prospects of establishing that he had "strong compassionate or humanitarian grounds" for the grant of an entry permit. It was suggested that such grounds existed because he had two sisters in Australia at the time, although it is relevant that in Turkey he had a mother and also two sisters. I can also leave out of consideration whether it was reasonable to assume that the officer in Perth interviewed was aware or should have been aware on 18 December 1980 that the amending Act containing s.6(2A) and s.6A had received the Royal Assent on the previous day and that it contained a provision that it came into operation 28 days thereafter. I am asked to proceed on the basis that the failure of the officer to give the abovementioned advice was in breach of his duty, which I do, although again I doubt whether this could ever be established as the applicant acknowledged in his affidavit that he was told to come back before his visa (temporary entry permit) expired and apply at that time, when as it happened he would have qualified to apply for a permit under s.6(2A). Notwithstanding all of these dubious assumptions I will proceed on the basis that the officer in Perth failed to act in accordance with his duty.

The Minister has, for the purpose of these proceedings, conceded that neither he nor his delegate gave consideration to this alleged breach of duty. The applicant contends that in so doing the Minister has erred in law in that he has, as provided by s.5(2)(b) of the Review Act, failed to take this relevant consideration into account.

The applicant's problem however, is to establish that it is a consideration which is relevant and which the decision maker is bound as a matter of law to take into account. Section 18, the section which empowers the Minister to deport a prohibited immigrant, is in the widest of terms and appears to give the Minister an unfettered discretion in making orders of deportation. In The Queen v Australian Broadcasting Tribunal (1979) 144 C.L.R. 45 at p.50 the High Court said:

"The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute."

In Sean Investments Pty. Limited v McKellar (1981) 38 A.L.R. 363 at p.375 Dean J. said:

"In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards."

Counsel for the applicant put two arguments before me to support his contention that the alleged breach of duty which occurred on 18 December 1980 was a matter to which the Minister or his delegate was obliged, in making the decision of 9 October 1981, to consider. First of all he contended that the applicant had been seriously prejudiced in that, if he had been advised correctly, he might well have made a successful application under s.6(2A) of the Act. Assuming such a contention can, despite all my considerable reservations, be made out, I do not see that it is anything to the point. The applicant is in effect contending, that in consequence of an alleged error of a departmental officer, the Minister or his delegate is restricted, if not estopped, from exercising his discretion under s.18. Of such an argument the Chief Justice said in Pochi v Minister for Immigration and Ethnic Affairs and Anor (1983) 43 A.L.R. 261 at p.268

"Finally it was argued that if it had not been for the wrongful neglect of an officer of the Commonwealth, the plaintiff would have been notified that his application for the grant of a certificate had been successful, he would have become an Australian citizen, and there would then have been no power to deport him. It was submitted that the deportation order should not be regarded as being within power, because the plaintiff's position had been adversely affected in this way by the neglect of an officer of the Commonwealth. There is no authority to support this argument and there is no substance in it. The power of the Parliament does not depend on the way in which officers of the Commonwealth carry out their duties. Legislative power conferred by the Constitution is not lost by administrative neglect.

It was also submitted that because the Minister is the person, and the only person, who under certain provisions of s.6A, has the power to make certain decisions, he as Minister is affected by the actions of his officers and ought, or was obliged, to take them into account. I can see no ground upon which I can accede to this submission. It is not an express circumstance to which the Minister is obliged to pay regard nor do I see it as in any way required by "limitations to be derived from the context and scope and purpose of the statute" (see Australian Broadcasting Tribunal case, supra at page 50), Counsel for the applicant did not seek to support his argument on any such basis.

It is my opinion that the discretion of the decision-maker under s.18 of the Act is not qualified by a requirement that he is obliged to take into account departmental happenings of the nature here relied upon. The applicant has failed to establish any error of law on the part of the Minister and the application for a review must be dismissed. The order of the Court is that the application is dismissed and if the respondent asks for an order for costs he is entitled to the same.