Azemoudeh, M. v Minister for Immigration & Ethnic Affairs

[1985] FCA 518

Re: MASOUD AZEMOUDEH
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and EMIL JOSEPH
No. G301 of 1985
Administrative Law

COURT

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

CATCHWORDS

Administrative Law - Immigration control - Prohibited non-citizen - Application for refugee status - Immediate deportation of applicant without permitting access to his legal adviser and without proposed interview - Interlocutory application for return of applicant from Hong Kong to Sydney pending final order - Test to be applied by Court in determining whether there is a case for interlocutory relief - Natural justice - Failure to consider relevant circumstances - Exercise of discretion at behest of another - Effect of grant or refusal of application upon position of parties - Jurisdiction to make mandatory interlocutory order.

Migration Act 1958 ss.6, 6A, 18, 36A Administrative Decisions (Judicial Review) Act 1977 ss. 5, 15 Faingold v. Zammit (1984) 1 F.L.R. 87, Dallikavak v. Minister for Immigration and Ethnic Affairs (6 August 1985, not reported), Australian Coarse Grain Pool Pty Limited v. Barley Marketing Board of Queensland (1982) 46 A.L.R. 398, Tableland Peanuts Pty Limited v. Peanut Marketing Board (1984) 52 ALR 651, Epitoma Pty Limited v. Australasian Meat Industry Employees' Union (1984) 54 A.L.R. 730, Salemi v. Mackellar (1977) 137 C.L.R. 396, The Queen v. Mackellar; ex parte Ratu (1977) 137 C.L.R. 461, Minister for Immigration and Ethnic Affairs v. Haj Ismail (1982) 57 F.L.R. 133, Minister for Immigration v. Gaillard (1983) 49 A.L.R. 277, Kioa v. Minister for Immigration and Ethnic Affairs (1984) 4 F.C.R. 40 applied. Samuels v. Hurford (Woodward J., 1 August 1985, not reported), Karatas v. Hurford (Wilcox J., 14 June 1985, not reported), Perkins v. Cuthill (1981) 52 F.L.R. 236, Videto v. Minister for Immigration and Ethnic Affairs (Toohey J., 20 August 1985, not reported) Jungpradit v. Hurford (Woodward J., 21 August 1985, not reported), Attorney-General (Hong Kong) v. Ng Yen Shiu (1983) 2 A.C. 629 reffered to.

HEARING

SYDNEY
#DATE 10:10:1985

ORDER

1. The first respondent take whatever steps are necessary and are reasonably available to him to ensure:

(a) that the first applicant is permitted to stay in Hong Kong until the first available flight from Hong Kong to Sydney;

(b) that an air ticket is purchased for the use of the first applicant in returning from Hong Kong to Sydney;

(c) that the first applicant is permitted to travel upon the said flight and to land at Sydney airport notwithstanding his lack of an entry permit; and

(d) that the first applicant is held in custody under the control of the first respondent pending further order.

2. All parties have liberty to apply on two hours notice.

3. The costs of this application be reserved.

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

JUDGE1

Late last Tuesday, 8 October 1985, I made orders the effect of which was to require the first respondent, the Minister for Immigration and Ethnic Affairs, to take whatever steps were necessary and reasonably available to him to arrange the return to Australia from Hong Kong - at the expense of the second applicant Sargon Perchem - of Masoud Azemoudeh, the first applicant. This was an unusual order to make, especially at an interlocutory hearing, but it appeared to be the only method of protecting the position of Mr Azemoudeh pending a final determination of his application for review, under the Administrative Decisions (Judicial Review) Act 1977, of certain decisions made by or on behalf of the Minister and Mr Emil Joseph, the Regional Director for New South Wales of the Department of Immigration and Ethnic Affairs and the second respondent herein. At the time I made the orders I indicated that I would publish my reasons today. I now do so.

For reasons which will become apparent, there is before the Court no evidence of Mr Azemoudeh. However, the second applicant, Mr Perchem, has sworn an affidavit setting out the background of the matter. Mr Perchem was born in Iran. He came to Australia in 1978. He is now an Australian citizen. As a member of the Iranian Christian Church he is from time to time requested to assist Iranian Christians. Approximately three months ago Mr Perchem's sister, Nageba Malkpour, and her husband sought Mr Perchem's assistance on behalf of Mr Azemoudeh. Mrs Malkpour gave to Mr Perchem some information about Mr Azemoudeh. Mr Perchem says in his affidavit that his sister's command of the English language is poor, she having commenced to learn English only upon her arrival in Australia from Iran as a refugee in August 1984. For that reason he set out in his affidavit the history of Mr Azemoudeh relayed to him by Mrs Malkpour.

This method of presenting the history of the matter to the Court - involving as it does double hearsay - is far from ideal but, under the circumstances of extreme urgency, it was probably the only course which could be undertaken. My reluctance to receive, and act upon, such evidence was reduced by the circumstances that Mrs Malkpour was in court during the hearing, that counsel for the applicants offered to call her to give oral evidence so that she might be subjected to cross-examination upon the history - presumably with the aid of an interpreter - and that counsel for the respondents declined this offer. Under those circumstances I think that it is proper to treat the history in the same manner as if it had been deposed to directly by Mrs Malkpour as being information given to her by Mr Azemoudeh and believed by her to be correct. As such, it is material properly to be considered in respect of an application for an interlocutory injunction; and, in any event, the critical facts of the matter - the events of last Friday when Mr Azemoudeh was briefly at Sydney airport - are the subject of unchallenged direct evidence.

According to entries in his passport, Mr Azemoudeh was born in Iran on 23 September 1957. Mrs Malkpour told her brother that Mr Azemoudeh holds the degree of bachelor of science, that he is a trained medical laboratory technician and that he served as a medical officer in the Iranian military from 1979 to 1981. When, several years ago, Mrs Malkpour first met Mr Azemoudeh he was a Moslim. In about 1981 he joined the Mochahden Kheid, a Moslim political sect which is opposed to the regime of the Ayatollah Khomeni. In about 1983 Mr Azemoudeh commenced to practice as a Christian and subsequently converted to the Christian faith. Mr Perchem's affidavit sets out the consequences of that action, as he understands them:

"I know very little of the details of the persecution the First Applicant has been experiencing. He has told my sister that his employer has threatened to dismiss him and has prohibited him practising or preaching his faith at work. He is also forced to participate in Islamic prayer meetings at work. I know however from past experience that the Ayatollah Khomeni's regime treats Moslim people who convert to Christianity as traitors to the Islamic faith. Since 1982 the Ayatollah Khomeni has ordered the execution of thousands of Christian converts and members of the Mochahden Kheid. Christian converts are treated by the Iranian authorities and the Moslim people as dirty, isolated people who are exempt from the protection of the laws of Iran. I have nine uncles who have been executed because of their conversion to Christianity. My father has been shot twice and tortured because of his Christian faith."

Mr Perchem said that, in July 1985, he applied to the Australian immigration authorities on behalf of Mr Azemoudeh for a visitors visa. There is no evidence as to the result of this application. He also said that the Iranian authorities marked Mr Azemoudeh's passport in a manner which restricted travel to all but a few Asian countries. In early August 1985, according to what she told Mr Perchem, Mrs Malkpour received a telephone call from Mr Azemoudeh in which he informed her that the Iranian authorities had refused to allow him to visit Australia, that he intended to apply for a visa to visit India and that he would try to obtain travel documents to Australia in India. In mid-August the applicant again telephoned Mrs Malkpour to inform her that he was in Bombay, that he had altered his passport by changing his place of birth to Canada, that he was trying to obtain travel documents to Australia but was afraid to approach the Australian authorities in Bombay in case he was returned to Iran. On the evening of 3 October 1985 Mr Azemoudeh telephoned Mrs Malkpour once again to inform her that he was in Hong Kong and about to board a Cathay Pacific flight to Sydney, that he had posted his passport to a cousin of Mrs Malkpour in Sydney as he feared that if the Hong Kong authorities inspected it again they might notice the alteration and return him to Iran and that he wanted Mrs Malkpour to have Mr Perchem assist him upon his arrival in Australia and, if necessary, instruct a solicitor to act on his behalf. Upon the following morning Mr Perchem retained Mr R.G. Cunich, a solicitor, to act on behalf of Mr Azemoudeh and himself and instructed him to meet the flight from Hong Kong due to arrive that day at 1.05 pm.

Ms Roshana Wikramanayake, a solicitor employed by the firm in which Mr Cunich is a partner, contacted Mr Clive Robson, the New South Wales Officer of the Determination of Refugee Status Committee within the Department of Immigration and Ethnic Affairs. She arranged to obtain an Application for Refugee Status form from him and, later that morning, telephoned to his assistant details of Mr Azemoudeh's name, nationality and flight number. She was advised to speak to an immigration officer upon arrival at the airport and told that the officer would then contact Mr Robson.

At about 12.15 pm Mr Cunich, Ms Wikramanayke and Mr and Mrs Malkpour went to the International Terminal at Sydney airport. Mr Cunich's account of what then happened is unchallenged. Mr Cunich made contact with an immigration officer Mr D.J. Scott. He introduced himself to Mr Scott and informed him of Mr Azemoudeh's imminent arrival, that he had no passport and that he wanted to apply for refugee status. The conversation went on:

"Scott, 'Has he any travel documents?' Cunich, 'I do not know. I have with me a partially completed application for refugees status. I wish to see my client upon arrival so that I can obtain full instructions, complete the application and have him sign it for processing. Will there be any problems?'

Scott, 'No. I'll have to contact the city to find out how to deal with the application but once we track him down I'll get you so you can see him. I probably won't be back until about fifteen minutes after the plane arrives as it will take us that long to find him. Have a seat over there and I'll get you the moment we find him.'"

Mr Cunich waited. He became aware that the Cathay Pacific flight from Hong Kong had landed but Mr Scott did not return. At about 1.45pm he commenced to enquire for Mr Scott. Eventually, at about 2.20 pm, Mr Scott returned. Mr Cunich's account of the conversation which then ensued is as follows:

"Scott, 'Sorry for the delay. It took us a little time to find Mr Azemoudeh and he is being interviewed by another officer. He tells us he posted his passport to an address in Sydney. Do you know the address?' I then said, "May I see my client now?' Scott, 'The person who will interview your client is Mr. Robson. He is busy in town and cannot come to the airport. The Regional Director has decided to send two officers out to the airport to pick up your client to escort him into the city office where he will be interviewed by Mr. Robson at about 3.00pm. You will be able to confer with your client privately before Mr. Robson interviews him. You can also sit in on the interview. I suggest you head back to the city, the officers are already on the way and should be here any minute. Your client will have to spend the weekend in the detention centre. His friends cannot see him in town but they can contact the detention centre and may be permitted to see him over the weekend."

Mr Scott then left. Mr Cunich and his party left the terminal building. As they walked towards their car Mr Scott ran after them and told Mr Cunich that there had been a change, that Mr Azemoudeh was to be sent back to Hong Kong that afternoon. Mr Cunich returned to the building with Mr Scott where he was informed that the secretary of the department had counteracted the decision of the regional director, that Mr Azemoudeh "is to be returned to Hong Kong on the same flight he came in on". Mr Cunich handed to Mr Scott a form of application for refugee status signed by him on behalf of Mr Azemoudeh and asked for it to be processed and decided on its merits. Mr Scott said that it was too late to do this, that "they were rushing your client off to the plane as I came down here." It appears that the plane took off at about 2.45 pm, as this conversation was taking place.

At approximately 4.30 pm on that same afternoon, Friday 4 October 1985, counsel instructed by Mr Cunich saw me in chambers to seek an order for leave to serve short notice of a substantive application under the Administrative Decisions (Judicial Review Act and for an interlocutory order requiring the respondents to cause Mr Azemoudeh, upon his arrival in Hong Kong a few hours later, to be returned to Australia.

I was informed by counsel of the events of that day but I declined at that stage to make the order he sought. I took the view that this step did not yet appear to be necessary, that it would be enough if Mr Azemoudeh could be held in Hong Kong whilst the matter was being further investigated. I was also influenced by the considerations that Mr Cunich's account of what had occurred at the airport had not yet been put in affidavit form and that- although the Australian Government Solicitor had preliminary instructions on behalf of the respondents and a solicitor in that office attended in chambers- there had been no real opportunity for the respondents to contest that account or to put other facts before me. In the event, I made orders granting leave to the applicants to file an application returnable during the afternoon of Tuesday 8 October 1985- the Monday being a public holiday- and requiring that the respondent Minister "take whatever steps are reasonably available to him to ensure that the applicant Masoud Azemoudeh is admitted to Hong Kong on his arrival from Australia and is permitted to stay in Hong Kong pending further order."

The Minister acted upon this order, apparently through the Department of Foreign Affairs. The result of his efforts appears from a telex from the office of the Australian High Commissioner in Hong Kong to the Department of Foreign Affairs on 7 October 1985 which was received into evidence at the interlocutory hearing on 8 October:

"To confirm our telecon, in response to our representations, Hong Kong authorities agreed on 6 Oct to defer" (Mr Azemoudeh's) "planned departure to Bombay from Cathay flight at 1520 hours on 6 Oct to the next Bombay flight at 1520 on Wednesday 9 Oct. This is a significant concession by the Hong Kong authorities. They have indicated that it could not be extended." (Mr Azemoudeh) "is now held in detention and has been moved from the transit area."

Upon the return of the Application on 8 October counsel for the applicants submitted that, in view of the contents of this telex, the Court should now order that the Minister cause Mr Azemoudeh to be returned to Australia pending determination of his application for refugee status and the final hearing of this Application. It was submitted that, if this course were not taken, it was likely that Mr Azemoudeh would, upon the following day, be deported from Hong Kong to Bombay whence he might be further deported to Iran.

The Application challenges five "decisions" made by or on behalf of the respondents. They were identified as decisions: not to accept or to consider in accordance with law Mr Azemoudeh's application for refugee status, not to permit Mr Azemoudeh to make or to execute an application for refugee status, to place Mr Azemoudeh on an aircraft without allowing him an opportunity to confer with his legal representative, to place Mr Azemoudeh on an aircraft without allowing to his legal representative an opportunity to approach the Court for appropriate orders and to deny to Mr Azemoudeh an opportunity to lodge an application for refugee status. It is not clear to me that these various decisions are all decisions "under an enactment", so as to attract the review jurisdiction of the Court under the Administrative Decisions (Judicial Review) Act see s.3 of the Act - but I think that it is at least strongly arguable that cumulatively they amount to a decision under an enactment refusing the application made on behalf of Mr Azemoudeh for the grant to him of one or more entry permits under the Migration Act 1958 or, alternatively, a decision to refuse to consider any such application upon its merits.

Section 6(1) of the Migration Act 1958 provides that a non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non-citizen. For the purposes of the Act, a person who arrives in Australia by an aircraft landing at a proclaimed airport, as is Sydney airport, is deemed to enter Australia when he or she leaves the airport: see s. 5(2). That provision is subject to a proviso that a person taken from the airport in custody is not thereby deemed to have entered Australia: see s.36(8). Mr Azemoudeh is, of course, a non-citizen. Section 6(2) provides that an officer may, in accordance with the section, grant to a non-citizen an entry permit. This may be done, according to s. 6(5), "either upon his arrival in Australia or, subject to section 6A, after he has entered Australia." A "temporary entry permit" is a type of "entry permit": see s. 6(6). Section 6A(1) provides:

"6A(1) An entry permit shall not be granted to a non-citizen 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 non-citizen; 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."

The term 'entry permit' in s. 6A means an entry permit other than a temporary entry permit, that is a permanent entry permit: see s. 6A(8). It follows that there is no restriction by s. 6A upon the grant of a temporary entry permit to a non-citizen after his arrival into Australia. There being no other relevant restriction, s. 6(5) applies to authorize the grant of such a permit after arrival.

There is no express statutory provision for the grant by the Minister of what is commonly called "refugee status". In Minister for Immigration and Ethnic Affairs v. Mayer (1985) 58 A.L.R. 695 a Full Court of this Court held that s. 6A (1)(c) was the only source of the Minister's power to grant refugee status, with the consequence that a decision to grant or withhold that status was a 'decision under an enactment' and reviewable under the Administrative Decisions (Judicial Review) Act. The qualifications stipulated by s. 6A(1)(c) for the grant of an entry permit - that is a permanent entry permit - include that the applicant be the holder of a temporary entry permit but, as I have pointed out, this permit could have been issued to Mr Azemoudeh after his arrival in Australia. Once this permit was granted, Mr Azemoudeh could have been issued with a permanent entry permit if the Minister made an appropriate determination under s. 6A(1)(c). Expressed in statutory terms, the application which Mr Azemoudeh sought to make last Friday was for the issue to him of a temporary entry permit under s.6(2) and of a permanent entry permit under s.6A(1)(c)

The applicants' case for review relies upon three grounds: denial of natural justice (s.5(1)(a) of the Administrative Decisions (Judicial Review) Act), failure to take into account relevant considerations (s.5(1)(e) and s.5(2)(b) and the exercise of a personal discretionary power at the direction or behest of another person (s.5(1)(e) and s.5(2)(e)). In relation to this last ground, it is claimed that the decision of the second respondent, the regional director, to order the removal of Mr Azemoudeh from Australia was made at the behest of the secretary of the department rather than in accordance with his individual discretion.

There is very little information before the Court as to what occurred within the Department of Immigration and Ethnic Affairs last Friday. The evidence clearly indicates that both Mr Robson and Mr Scott were informed by his solicitors that Mr Azemoudeh wished to make application for refugee status. It does not appear that any document in support of that application was in fact submitted before the decision was made to expel Mr Azemoudeh. Nonetheless it is possible that the application was treated as having been made and was referred to an authorized officer. Arrangements were made for Mr Robson to interview Mr Azemoudeh in relation to the application. There appears then to have been a change of attitude. Apparently upon instructions from the Secretary of the Department, the relevant officers acted upon the basis that there was no application then before the department, that Mr Azemoudeh was a person who, if he entered Australia without a permit, would be a prohibited non-citizen and was therefore a person whom the carrier to Australia might be required to remove from Australia without expense to the Commonwealth: see s.36A. Although it is possible that there was a formal refusal, the available information suggests that there was no decision to refuse the application but rather, a refusal to consider the application upon its merits. Allied with that refusal there were a series of decisions - to deny Mr Azemoudeh legal advice, not to have Mr Azemoudeh interviewed by Mr Robson, who apparently has special responsibilities in relation to refugee applications, and to deport Mr Azemoudeh to pess his which made it impossible for Mr Azemoudeh to press his application in the most effective manner. Although the Application makes no reference to this ground, a refusal to consider an application upon its merits and decisions to frustrate its proper presentation are arguably within s.5(1)(e) of the Administrative Decisions (Judicial Review) Act as being an exercise of a power "in a way that constitutes abuse of the power": see s.5(2)(j).

It appears now to be well established in this Court that the test to be applied in determining whether, subject to the balance of convenience, there is a case sufficient to justify the grant of interlocutory relief is whether there is "a serious question to be tried". This test has been adopted in three reported decisions of Justices of the High Court of Australia: see Australian Coarse Grain Pool Pty Limited v. Barley Marketing Board of Queensland (1982) 46 A.L.R. 398 (Gibbs C.J.), Tableland Peanuts Pty Limited v. Peanut Marketing Board (1984) 52 A.L.R. 651 (Brennan J.) and A v. Hayden (1984) 56 A.L.R. 73 (Dawson J.). The test was adopted by a Full Court of this Court in Epitoma Pty Limited v. Australasian Meat Industry Employees' Union (1984) 54 A.L.R. 730.

The test of "serious question" has been adopted in deportation cases: see, for example, the Full Court decisions in Faingold v. Zammit (1984) 1 F.C.R. 87 at pp 91-92 and in Dallikavak v. Minister for Immigration and Ethnic Affairs (6 August 1985, not reported), the decision of Woodward J. in Samuels v. Hurford (1 August 1985, not reported) and my own decision in Karatas v. Hurford (14 June 1985 not reported). But other views have been expressed. Although, in the particular circumstances of the case, Jenkinson J. joined with the other members of the Court in Dallikak in adopting the 'serious question' test his Honour pointed out that this test, will not always be appropriate:

"There will be occasions when the exercise of the power is sought at a time when the refusal (or the grant) of a stay will have grave consequences, but it is impossible to form any view as to whether there is such a question to be tried. There will be cases in which the prejudicial consequences for the applicant of refusal of a stay (or for the community of grant of a stay) are of a kind or degree outside the contemplation of those who framed the criteria governing the grant of interlocutory injunctive relief in litigation concerning proprietary and contractual interests."

Jenkinson J. expressed agreement with the criterion suggested by Keely J., in Perkins v. Cuthill (1981) 52 F.L.R. 236 at p. 238, for the exercise of the power to make interlocutory orders under s. 15 of the Administrative Decisions (Judicial Review) Act: "s. 15(1)(a) requires an applicant to satisfy the court that reasons or circumstances exist which make it just that the court should make the order sought." In Videto v. Minister for Immigration and Ethnic Affairs (20 August 1985 Toohey J. at pp 67 expressed his agreement with these remarks.

Whatever the attraction of the formula suggested by Keely J, it seems to me that I am bound by the Full Court decisions to which I have referred to adopt the "serious question" test. But the test must be applied with reference to the circumstances of the case. There may be cases in which the facts are so comprehensively before the Court that it would be reasonable to deny the existence of a serious question unless the situation were such that the Court could say that, unless there were new facts, the applicant was likely to succeed; thus approximating the "prima facie case" test applied in Beecham Group Limited v. Bristol Laboratories Pty Limited (1968) 118 CLR 618. At the opposite extreme there may be cases in which the applicant has had little opportunity to ascertain the facts and to adduce evidence but there is evidence to suggest that he or she may be entitled to relief; evidence which may turn out readily to be refuted or explained upon further investigation - but which, in the meantime and in the circumstances, justifies the intervention of the Court stage. Much must depend upon the extent to which the applicant has had an opportunity to present the facts to the Court and the consequences of granting or refusing relief. I think that this is what was meant by Woodward J. when, in Jungpradit v. Hurford (21 August 1985, not reported) he spoke of considering together the two tests of "serious question" and "balance of convenience". The over-riding principle is that referred to by Dawson J. in Hayden at p. 79 "that a court ought not to be misled by an overstrict application of verbal formulae to depart from its primary duty to do complete justice in the court". It is with this understanding that I apply to "serious question" test to the present case, bearing in mind that there has been no opportunity to present any evidence from Mr Azemoudeh, to ascertain precisely what events did occur last Friday or to obtain any statement of reasons for such decisions as were made.

In two decisions given in 1977 the High Court of Australia held that, in exercising power under s. 18 of the Migration Act to order the deportation of a prohibited non-citizen, the Minister is not bound by the dictates of natural justice: see Salemi v. Mackellar (1977) 137 CLR 396 and the Queen v. Mackellar; ex parte Ratu (1977) 137 C.L.R. 461. Those decisions have been followed in Full Courts of this Court: see Minister for Immigration and Ethnic Affairs v. Haj Ismail (1982) 57 F.L.R. 133, Minister for Immigration v. Gaillard (1983) 49 A.L.R.277 and Kioa v. Minister for Immigration and Ethnic Affairs (1984) 4 F.C.R. 40. I understand that an appeal in the last mentioned case has been argued in the High Court but not yet determined. In the meantime any submission as to natural justice must be approached upon the basis that the law is as declared in Salemi and Ratu. In Haj-Ismail at p. 142 Bowen CJ and Franki J. suggested the possibility of an "exceptional case" attracting the requirements of natural justice to the exercise of power under s. 18. Their Honours may have had in mind facts such as those considered by the Judicial Committee of the Privy Council in a Hong Kong appeal, Attorney-General (Hong Kong) v. Ng Yen Shiu (1983) 2 A.C. 629. In that case there had been a failure to adhere to promised procedures. There may be other exceptional cases; none has to my knowledge so far been recognised in Australia. I think that the applicants are likely to have difficulty in making out their case insofar as it relies upon a failure to give natural justice. In saying this I do not overlook that the officers concerned were involved not merely in considering deportation but also, and primarily, in considering an application for refugee status, that is an application for the grant of one or more entry permits. But this is commonly the case and, as it was held in Kioa at p. 57, this is not a proper ground for distinguishing Salemi and Ratu. In expressing this view I also bear in mind the paucity of the evidence presently available but, as the obstacle in the applicants' path is the law rather than any matter of fact, it is unlikely that further evidence can improve their position. If the applicant's case rested solely upon the natural justice ground, I would have difficulty in discerning serious question to be tried.

The second ground relied upon by the applicants is failure to take into account relevant considerations. In relation to that ground, there appears to me to be a 'serious question'; at least in the sense outlined above. Any decision by or on behalf of the respondents to reject the claim for refugee status made by Mr Azmoudeh was apparently without the benefit of information upon a most material matter - the situation in Iran, especially in relation to practising Christians. No doubt such information could have been obtained from a variety of sources. One possible source was Mrs Malkpour, who was available at the airport whilst Mr Azemoudeh was being questioned. Of course the relevant officers might reasonably have wished to check or to bring up to date any information which she was able to give but, by the course taken, they deprived themselves of any opportunity of taking her information into account.

It was critical to Mr Azemoudeh's success in an application under s. 6A(1)(c) that he show that his case falls within one or both of the international agreements referred to in that paragraph. Apparently he was questioned at the airport - the evidence does not disclose by whom, at what length or upon what subjects. It is impossible to say whether he was given an opportunity to present facts bringing his case within the agreements. Had he been allowed access to Mr Cunich he would have had the benefit of legal advice, enabling him better to understand what was required of him. Had Mr Cunich been allowed to attend the interview he could have assisted him to present relevant material. Had Mr Azemoudeh been interviewed by Mr Robson, who apparently has expertise in this area, relevant questions would presumably have been asked. Upon the material presently before the Court there is, at least, a substantial question to be tried in relation to s. 5(2)(b) of the Administrative Decisions (Judicial Review) Act.

The only material relating to s. 5(2)(e) is the statement made by Mr Scott to Mr Cunich that the Secretary of the Department had counteracted the decision of the Regional Director. The sudden change in attitude of the airport officers is consistent with receipt of an overriding direction from a more senior officer, but the effect in law of any such direction is presently obscure. Everything must depend upon the precise nature of the decisions which were made and the authority of those who made the decisions. This ground raises a matter of concern, which concern might readily be abated by further evidence. It is, perhaps, an example of a situation in which it might be just to grant interlocutory relief pending further clarification. However, in view of my conclusion in respect of s. 5(2)(b), I need not further consider that matter.

I turn now to the question of balance of convenience. If Mr Azemoudeh is allowed to be returned from Hong Kong to Bombay, there is at least a possibility that the Indian authorities will return him to Iran. It is true that there is no evidence as to their attitude but it would be not unreasonable for them to react in the same manner as their counterparts in both Australia and Hong Kong and to wish to rid themselves of an alien who had no travel documents. Certainly one could not be confident that the situation would be otherwise. If the claims of Mrs Malkpour are well-founded, Mr Azemoudeh faces distinct dangers in being repatriated to Iran. Although the ideal situation would have been for Mr Azemoudeh to be in Australia while his case was being considered, in order that he might better communicate with his advisers and the departmental officers, it probably would have sufficed for him to be held in Hong Kong pending a final decision. But by Tuesday afternoon it had become clear that this possibility was not available. The circumstances which had confronted me on Friday afternoon had changed materially. The choice now was to have Mr Azemoudeh returned to Australia or to accept the likelihood that he would be returned to India, and possibly to Iran. In addition there was now evidence from Mr. Perchem, confirmed by his counsel who offered an undertaking to the Court, that he would bear the cost of the return flight of Mr Azemoudeh from Hong Kong. Finally, it was now apparent that the respondents did not contest the evidence on behalf of the applicants as to the events of last Friday and that they did not seek to put any additional facts before the Court.

Counsel for the respondent pointed out that, if Mr Azemoudeh were brought here to Sydney at the expense of Mr Perchem and the final decision was that he not be allowed to remain in Australia, it would be likely that the Commonwealth would be required to bear the expense of his ultimate deportation; the entitlement of the department to require Cathay Pacific to return him to Hong Kong free of charge to the Commonwealth having been exhausted last Friday. This point is a valid one but, in the present circumstances, it should be given little weight. To a large extent the problem arises from the manner, and especially the haste, in which the case was handled on Friday. Under s. 36(4) of the Migration Act an authorized officer has 48 hours within which to require the importing carrier to remove a prohibited non-citizen. The evidence discloses no need to send Mr Azemoudeh home on the same plane. If the course promised by Mr Scott had been taken, there would have been no difficulty about a decision being made within 48 hours. It would be wrong to give weight, as against an applicant whose case is at least strongly arguable and who faces considerable disadvantages if he is not allowed to remain in Australia, to a cost which would be incurred by the Commonwealth because of the course its officers unnecessarily chose to pursue.

The other matter put by counsel for the respondents was that, it he were now returned to Australia, Mr Azemoudeh would enjoy a superior position, under the Migration Act, than he had last Friday. I was unable to understand from counsel why this would be so. He would return without an entry permit, he would arrive as a prohibited non-citizen seeking the grant him of a temporary entry permit and, ultimately if refugee status were granted, a permanent entry permit. His legal position would be no different from his position last Friday. If he were ultimately refused permission to stay in Australia, that is refused an entry permit, he would be a prohibited non-citizen and would be liable to deportation under s.18 of the Act. He would be liable to be held in custody - although under s.38 rather than s.36A - in the meantime.

No submission was put to me in relation to the jurisdiction of the Court to make a mandatory order upon an interlocutory application. Such an order is relatively unusual - although there have been recent examples of such orders in this Court in relation to immigration matters - but I am satisfied that there is jurisdiction to make such an order. It may be that s.15 of the Administrative Decisions (Judicial Review) Act does not extend so far but s.23 of the Federal Court of Australia Act 1976 is couched in extremely wide terms. That section empowers the Court, in relation to matters in which it has jurisdiction, "to make orders of such kinds, including interlocutory orders. . . as the Court thinks appropriate". The order I made on Tuesday was, in my view, necessary and appropriate for the protection of the position of the first applicant pending determination of his Application.