Bhajan Singh and Minister for Immigration and Ethnic Affairs

THE FEDERAL COURT OF AUSTRALIA

General Division

BHAJAN SINGH

and

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

C.A. SWEENEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 25 MARCH 1981, AT 10.00 AM

Continued from 24.3.81

Copyright in the Commonwealth Government

singh 25.3.81

cp CS la S

MR P ROSE:

I appear on behalf of t h e app l i can t ,

your H o n o u r .

H I S HONOUR:

Y e s ,

M r R o s e .

G G R I P F I T H :

Y o u r H o n o u r ,

appear

f o r t h e

rhinis ter .

H I S HONOUR:

Y e s ,

M r G r i f f i t h .

ROSE:

Y o u r H o n o u r ,

f o l l o w i n g on

f r o m yes te rday ,

a m e n d e d

pa r t i cu l a r s

t h e appl ica t ion w e r e prepared

and

o ra l

n o t i f i c a t i o n

w a s

g iven

t o m y

f r i e n d ' s

i n s t r u c t i n g

so l i c i to r s .

H I S HONOUR:

When

you

say a m e n d e d pa r t i cu l a r s w e r e prepared,

you

m e a n an

a m e n d e d applicat ion?

MR ROSE:

Y e s , sir.

I believe a copy i s before your H o n o u r n o w

and I

w o u l d seek

leave t o a m e n d t h e appl ica t ion on

the basis set out .

H I S HONOUR:

I n t h e

f a sh ion

s h o w n i n t h e d o c u m e n t t h a t has

been	f i l e d ?

ROSE:

Y e s ,

your H o n o u r .

H I S HONOUR:

What

do you say about t h a t , M r G r i f f i t h ?

G R I F F I T H :

agree t o t ha t ' cou r se ,

your H o n o u r .

H I S HONOUR:

T h e

app l i ca t ion

m a y

so a m e n d e d .

ROSE:

I n add i t ion , your H o n o u r ,

there w a s a

second

a f f i d a v i t

s w o r n by

C o l i n

J a m e s G i b s o n .

believe

a l s o t h a t t h a t should be

t h e

f i l e .

H I S HONOUR:

S w o r n today?

ROSE:

Y e s ,

your H o n o u r .

H I S HONOUR:

Y e s ,

have

read

t h a t .

C o p i e s of

these a f f i d a v i t s

have been served on t h e , m i n i s t e r , have they?

ROSE:

Y e s ,

your H o n o u r .

T h a t i s t h e basis

t h e

applicat ion on w h i c h w e seek t h e orders.

H I S HONOUR:

Y o u m i g h t t ake m e t o t h e sect ions

or t o t h e A c t ?

MR ROSE:

Sec t ion 5, sub-sect ions

1 and 2 of

t h e A d m i n i s t r a t i v e

D e c i s i o n s J u d i c i a l

R e v i e w A c t .

H I S HONOUR:

T h e j u r i s d i c t i o n

t h e

court

c o m e s

f r o m sec t ion

does	it n o t ?

ROSE:

Y e s ,

your H o n o u r .

H I S HONOUR:

Y o u say t h a t your

c l i e n t i s a person

aggrieved

w i t h i n t he m e a n i n g of

s e c t i o n 5?

s ingh 25.3.81	8	MR	ROSE
cp CS 2 a S

ROSE:

Y e s ,

Y o u r H o n o u r .

H I S HONOUR:

The ques t ion t hen arises w h e t h e r t h i s i s a

dec is ion t o

w h i c h t h i s

act

applies,

i s t h a t r i g h t ?

ROSE:

Y e s ,

your H o n o u r .

H I S HONOUR:

That

i s def ined i n sec t ion

3 ,

i s it?

ROSE:

Y e s ,

and a l so i n t h e act there

i s se t o u t ce r ta in

m a t t e r s t o w h i c h t h e

ac t

spec i f ica l ly does

n o t apply.

H I S HONOUR:

W e had

bet ter

s t a r t w i t h s ec t ion

Would

you

l i k e

t o read

t h a t t o m e ,

t h e r e l evan t po r t ion of

it?

ROSE:

Y e s ,

your H o n o u r .

U n d e r sub-sect ion

4 ,

w h i c h refers

t o a person w h o i s aggrieved by a decis ion , there i s

a reference t o a person aggrieved by a dec i s ion and

t h a t i n c l u d e s a

reference

t o a

person

w h o s e in teres ts

are adversely affected by a dec is ion .

There are

sub-sec t ions

there

and w e w o u l d say t h a t our

c l i e n t ,

w h o i s t o be deported, M r S ingh, has been adversely

affected by dec is ions of t h e cour t and t h a t t h e act

refers

t o t h e m a k i n g of

d e c i s i o n

i n sub - sec t i on

2 .

H I S HONOUR:

Would

you

l i k e t o read

t h a t t o m e ?

ROSE:

Y e s :

I n t h i s A c t , a reference . . . . . . . . . .

an order,

a w a r d or d e t e r m i n a t i o n ,

H I S HONOUR:

Where are you reading f r o m ?

ROSE:

Sub-section

2 ( a ) , your H o n o u r .

A l s o ,

sub-sect ion

2 ( b ) :

G i v i n g , suspending, revoking . . . . . . . .

. . approval,

consent or p e r m i s s i o n .

That i s i n r e l a t i on

t o those

t w o m a t t e r s ,

s i r ,

t h a t

t h e m i n i s t e r has m a d e an, order and has refused or

f a i l e d t o take i n t o account, w e w o u l d s u b m i t , a l l

t h e m a t e r i a l as	t o w h y t h i s person	w o u l d f a l l i n t o
a m n e s t y .

H I S HONOUR:

T h e root of

it i s t h e dec is ion t o w h i c h t h i s

act

applies,

i s it n o t ?

ROSE:

Y e s ,

your H o n o u r .

H I S HONOUR:

H o w does

t h a t read?

MR ROSE:

I t says t h a t it i s a dec is ion of

an a d m i n i s t r a t i v e

character

and

t h i s i s

i n t h e

d e f i n i t i o n sec t ion :

s i ngh

25.3.81

ROSE

cp CS 3a S

Proposed t o be m a d e . . . . . : . . . .

set

o u t i n s e c t i o n

H I S HONOUR:

What do you say i s t h e - - -

ROSE:

T h e M i g r a t i o n A c t ,

your H o n o u r .

H I S HONOUR:

What

i s i t s f u l l t i t l e ?

MR ROSE:	I do n o t have t he copy.	I t is t h e Migration A c t
of 1958 t o 1973.

H I S HONOUR:

Where

does t h a t provide

f o r t h e m a k i n g of

t h i s

decis ion?

ROSE:

I t i s under s e c t i o n 16 , your H o n o u r .

H I S HONOUR:

Would

you

l i k e t o read

t h a t t o m e ?

ROSE:

U n d e r sec t ion

16:

Where

a f t e r t h e

c o m m e n c e m e n t

t h i s par t

. . . . . . . . .	referred t o i n t h i s
sub-sect ion,

H I S HONOUR:

Y o u say there has been a dec is ion t o deport your

c l i e n t ?

ROSE:

Y e s ,

your H o n o u r .

H I S HONOUR:

Y o u say t h a t i s a

dec is ion

under t h e Migrat ion A c t ?

ROSE:

Y e s ,

under

s e c t i o n

18 t h e m i n i s t e r gets

t h a t p o w e r .

H I S HONOUR:

Would

you read t h e sec t ion t o m e w h i c h you

say

i s t h e re levant

one?

ROSE:

Sec t ion 18:

T h e m i n i s t e r m a y order t h e deportat ion . . .

. . . . . . .

under any provis ion of

t h i s A c t .

Then

f o l l o w i n g on

f r o m t h a t ,

sir ,

under sect ion 2 0 :

Where t h e m i n i s t e r has m a d e an order . . .

. . . . . . .

be deported accordingly.

H I S HONOUR:

I f w e t u r n t o sec t ion 5

t h e a c t and w e look

a t your

a m e n d e d appl ica t ion w e should be

able t o

see t h e grounds t h a t your

c l i e n t relies upon w h i c h

are t aken ,

i m a g i n e ,

f r o m sec t ion 5 ,

sub-sect ion

ROSE:

Y e s ,

your H o n o u r .

Sub-sect ions

1 and 2 .

H I S HONOUR:

Where do you f i n d those grounds i n your a m e n d e d

app l i ca t ion?

s i n g h

2 5 . 3 . 8 1

1 0

MR ROSE

cp CS 4 a S

MR ROSE:

They a r e grounds 4 , 5 and 6.

HIS HONOUR:

Take ground 4.

What i s t h e evidence t h a t shows

t h a t a breach

t h e r u l e s of

n a t u r a l j u s t i c e

occurred?

ROSE:

I t i s t h e evidence s e t ou t i n t h e a f f i d a v i t .

HIS

HONOUR:

Where

i s t h e

s ta tement t h a t you

a r e r e l y i n g on?

MR ROSE:

I t is i n t h e a f f i d a v i t of

Colin James Gibson.

HIS HONOUR:

Which one?

MR ROSE:

The one sworn today, your Honour.

I n paragraph 4 he

r e f e r s

t o ob ta in ing

i n s t r u c t i o n s

r e f e r r e d

t o i n h i s

o t h e r

af f i d a v i t;

t h a t

i s ,

i n s t r u c t i o n s

from Chapman.

I n paragraph 5 he r e f e r s t o a copy of

t h a t l e t t e r

being s e n t t o M r Windsor of

t h e Department.of

Immigration and E thn ic A f f a i r s .

Then i n paragraph 8

r e f e r s

t o t h e de te rmina t ion

t h e m i n i s t e r having

been

made

wi thout t h e m i n i s t e r having proper

r ega rd

t o t h e document i n paragraph 4,

which

r e f e r r e d t o

i n paragraph 4,

and which i s e x h i b i t B.

HIS HONOUR:

That

is more

a l l e g a t i o n ,

i s it n o t ,

t han

s ta tement of

f a c t ?

I t i s more

l i k e a p l ead ing

s ta tement

i n an

a f f i d a v i t .

What

r u l e of

n a t u r a l

j u s t i c e has been breached?	That i s a way	of	t e s t i n g
it, I suppose.

ROSE:

would

say t h a t t h e m i n i s t e r has

f a i l e d t o g r a n t a

hear ing

t o t h e

a p p l i c a n t .

HIS HONOUR:

What k ind of

a hear ing?

ROSE:

hea r ing

a s t o t h e a p p l i c a n t ' s own

a l l e g a t i o n ,

which

f a l l s w i th in

t h e amnesty

prov is ions .

HIS

HONOUR:

Are

t h e amnesty p rov i s ions be fo re me?

ROSE:

No,

do n o t have t h e p rov i s ions a t t h i s p o i n t i n

t ime t o show on what b a s i s t h e amnesty was made.

W e

have been

i n s t r u c t e d t h a t an

amnesty was

g ran ted i n

r e l a t i o n

t o t h e r e g u l a t i o n

t h e

s t a t u s ,

b u t

do n o t have

t h e documentation

i n r e l a t i o n t o t h a t .

HIS HONOUR:

Is your real conten t ion t h a t your c l i e n t should

have been considered a s be ing wi th in t h e amnesty

t e r m s and,

t h e r e £ o r e ,

no t

depor ted?

MR ROSE:

Yes, your Honour.

HIS HONOUR:

Apart from t h e amnesty terms, what do you s a y a s

t o your

c l i e n t ' s p o s i t i o n .

ROSE:

That he i s an i l l e g a l immigrant

and o t h e r t han t h e

ma t t e r s w e	a r e d i scus s ing ,	he	would	be	e l i g i b l e	f o r
depor t a t i on .

s ingh 25.3.81

ROSE

cp CS 5a S

(Continued on page l l a )

HIS HONOUR:

P u t t i n g t h e amnesty

terms

completely t o one s i d e ,

t h e r e would

l e g a l impediment

t o t h e d e p o r t a t i o n

your

c l i e n t a p a r t

from t h a t ?

MR ROSE:

No, your Honour.

HIS HONOUR:

I f you r e l y upon them do I n o t need t o have them

be fo re

me?

ROSE:

Yes,

b u t w e have n o t been i n a p o s i t i o n ,

as y e t ,

t o

o b t a i n

them.

HIS HONOUR:

How

can you say what is and what is n o t wi thout

them?

ROSE:

That

i s why

t h e a f f i d a v i t i s hearsay ,

i n e f f e c t ,

a s

t o what

t h e c o u r t can do because

b e l i e v e t h a t i n

t h e a f f i d a v i t M r Gibson has

sworn

i.s

t o l d

when

t h e

amnesty

ope ra t e s .

H e i s a l s o given

in format ion by h i s c l i e n t a s t o when

he was

i n

A u s t r a l i a ,

which

i s

dur ing

t h e amnesty

p e r i o d ,

b u t

t h a t i s a s f a r a s he

can go a t t h e p r e s e n t t i m e

because we

do no t have t h e documentation.

W e have

n o t

even seen ,

t o d a t e ,

any

n o t i c e

t h e depor t a t i on .

We	have only been advised v e r b a l l y t h a t M r Singh was

t o be

deported.

W e would no t be

i n a p o s i t i o n

t o

p u t

t h a t m a t e r i a l be fo re

your

Honour

i n any

o t h e r

way,

save and except t o make

t h e a l l e g a t i o n s i n t h e

a f f i d a v i t .

s i ngh

25.3.81

l l a

ROSE

cp CS 6a S

(Continued on page 1 2 )

HIS HONOUR:

Do you want to say anything more to your

application generally, Mr Rose?

MR ROSE:

The only thing 5s Mr Singh is here, I believe, today.

HIS HONOUR: He is present in court today?

MR ROSE:

Yes, your Honour, and he may well be in a position to

give evidence provided somebody who can interpret

has turned up.

HIS HONOUR:

You have the conduct of the matter.

MR ROSE: I understand that. We were hoping for an interpreter

to be here and we were hoping to call Mr Singh, but

I am not sure if someone is here to interpret.

I may be excused from the bar table to make inquiries?

HIS HONOUR:

Yes.

MR ROSE: We would have some difficulty. Mr Gursewak Singh

is here but he is not an interpreter. He would be a

witness and can be a witness to the fact Bhajan Singh

was in Australia.

HIS HONOUR:

Tell me the facts you are seeking to establish in

this way.

MR ROSE: Only that Bhajan Singh is in Australia - - -

HIS HONOUR:

The applicant was in Australia prior to 31 December,

1979?

MR ROSE:

Prior to 31 December 1979 and that he made application

to be considered under the amnesty in 1980 when the

amnesty was purported to operate.

HIS HONOUR: Are those the only facts?

MR ROSE: They are the only facts. I am not in a position to

call evidence as to the amnesty.

HIS HONOUR:

As to these facts, are you able to tell me whether

there is any contest, Dr Griffith?

DR GRIFFITH:

It is not conceded that he was in Australia

after his deportation.

HIS HONOUR: Mr Rose made some reference to that yesterday,

but he did not pursue the matter further because I was

anxious, as far as possible, to see what the evidence

was.

DR GRIFFITH: Could I mention the order nisi for habeas corpus

is returned in the State Supreme Court at 10.30.

I was wondering if my instructing solicitor should be

despatched there to see if the matter is set down.

singh 25.3.81	12	MR ROSE
nw lms la

HIS HONOUR:

It occurs to me, having regard to what Mr Rose

has said, that if he seeks to rely upon the terms

of the amnesty he rntght need time in which to place

the amnesty before me i'n some fashion.

DR GRIFFITH:

Could I say we have a preliminary objection as

to the competency of this application and what we say

is the application for the review of the decision by

reference to the act, In our submission it is not an

application which falls within the jurisdiction and,

in particular, the definition provided under section 31

of the act of decisions to which the act applies.

Your Honour will see the definition is:

A decision of an administrative character

. . . . . . . . . . under an enactment. .

We would say there is no relevant enactment. I could indicate my instructions are this amnesty referred to is an amnesty provided in an administrative way as

referred to in one or two press releases.

HIS HONOUR:

I suppose it becomes a nice question if you are

told you are being deported whether you are being

deported pursuant to the power under the act or whether

you are being deported because you do not come within

the amnesty.

DR GRIFFITH:

I would not cavil for a moment the power to deport

and the deportation order is pursuant to section 18

of the act.

HIS HONOUR:

You say the real decision which is complained about

is a decision not to give the applicant the benefit

of the administrative provisions contained in the

amnesty?

DR GRIFFITH: We read that as indicating the applicant desires to review the decision of the minister that he is not entitled to consideration under the amnesty and

we make this jurisdictional point that is not a

decision to which this act applies for the purpose of

the 1977 act.

HIS HONOUR:

I follow the way you put it and what occurs to me

is as you have the habeas corpus proceedings returnable

in the Supreme Court it would, perhaps, be a more

orderly way of proceeding if I were to stand the matter

down in this court - and Mr Rose has now had notice

of your preliminary point and will have an opportunity

of considering it - and, at the same time, if he is

seeking to lead evidence before me on that preliminary

point I will be able to hear it. You will only be

briefly engaged in the Supreme Court, I imagine?

singh 25.3.81

nw lms 2a

DR GRIFFITH: Yes, your Honour.

HIS HONOUR: As far as this court is concerned I think if

I were to say not before 1 2 noon it would be perhaps

the most helpful course to take.	Is that course
convenient to you gentlemen?

DR GRIFFITH: Yes, your Honour. We would say the only

relevant inquiry on this jurisdictional point is

a referral to the provided enactment,

HIS HONOUR:

I am not suggesting what he will do, but bearing

in mind the distance between here and the practice court you both should be on your way now. If your point is good it will still be good at 1 2 noon and Mr Rose will, perhaps, be able to make a more'

leisurely reply to it.

The subject of the application

is not going to be deported between now and 1 2 noon. I will say not before 1 2 noon, gentlemen. The court will now adjourn until 10.30.

singh 25.3.81

nw lms 3a

HIS HONOUR:

D r G r i f f i t h ,

had you

f i n i s h e d developing your

p r e l i m i n a r y po in t ?

G R I F F I T H :

N o ,

had

no t .

I n

f a c t ,

have

t h e

r e l e v a n t

press

release

d e a l i n g w i t h t h e

a m n e s t y p r o g r a m m e ,

b u t I

unders tand t h a t my

learned f r i e n d has an

app l i ca t ion

t o m a k e .

H I S HONOUR:

Y e s ,

M r

R o s e ?

ROSE:

Y o u r H o n o u r ,

w e have

discussed t h e m a t t e r and w e

have seen t h e press release and w e n o w seek leave

t o w i t h d r a w o u r

appl ica t ion .

H I S HONOUR:

Y o u seek

no o t h e r orders?

ROSE:

N o o the r orders .

H I S HONOUR:

What

do you say about t h a t , D r G r i f f i t h ?

G R I F F I T H :

I w o u l d s u b m i t t h a t t h e appropriate order be

t h a t t h e appl ica t ion be

d i s m i s s e d and I

a m

i n s t r u c t e d t o ask

f o r a n order

costs .

HIS HONOUR:

Y o u seek

d i s m i s s a l r a t he r t h a n a

w i t h d r a w a l

and an order f o r costs?

G R I F F I T H :

Y e s ,

your

H o n o u r .

ROSE:

What do you s ay about those t w o m a t t e r s , M r R o s e ?

s i n g h

25.3.81

MR ROSE

cp m p 6e

R O S E :

do n o t t h i n k I

can

oppose e i t h e r o f . t h o s e

courses , your Honour.

H I S HONOUR:

It i s ordered t h a t t h e a p p l i c a n t pay

t h e

r e sponden t ' s

c o s t s

and

i n c i d e n t a l

t o t h e

a p p l i c a t i o n ,

such

c o s t s

t o be

taxed

i f n o t

agreed ,

o therwise

t h e

a p p l i c a t i o n

i s

dismissed.

A T 12.18 PM THE MATTER WAS ADJOURNED

I N D E F I N I T E L Y

s ingh 25.3.81

nw m p l e

[1981] FCA 290

25 Mar 1981