Capello, Aldo v Minister for Immigration and Ethnic Affairs

[1980] FCA 205

Re: ALDO CAPELLO
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1980) 49 FLR 40
No. G 126 of 1980
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - Decision to deport prohibited immigrant - Application for stay of proceedings under decision - Whether rules of natural justice applicable - Whether arguable case made out.

Administrative Decisions (Judicial Review) Act 1977 (Cth.) s.15.

Migration Act, 1958 (Cth.) s.18.

Administrative Law - Decision to deport prohibited immigrant - Application for stay of proceedings under decision - Whether rules of natural justice applicable - Whether arguable case made out - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 15 - Migration Act 1958 (Cth), s. 18.

HEADNOTE

Pursuant to s. 15 of the Administrative Decisions (Judicial Review) Act 1977 the applicant sought the stay or suspension of a deportation order made against him under s. 18 of the Migration Act 1958.

Section 5 (1) (a) of the Administrative Decisions (Judicial Review) Act enables a person aggrieved by a decision to which the Act applies to apply for an order for review on the ground that a breach of the rules of natural justice occurred in connexion with the making of the decision. Section 15 enables an order to be made suspending the operation of the decision, or staying all proceedings under the decision.

Held: (1) The power to make a deportation order under s. 18 of the Migration Act is not subject to an obligation to observe the principles of natural justice .

Salemi v. MacKellar (No. 2) (1977), 137 CLR 396: R. v. MacKellar; Ex parte Ratu (1977), 137 CLR 461, applied.

(2) Section 5 (1) (a) of the Administrative Decisions (Judicial Review) Act does not create any fresh obligation to observe the rules of natural justice where no such obligation existed previously.

(3) Since the applicant had not presented a case which showed that on the final hearing of the matter there would be at least a reasonable argument for granting relief under s. 16 of the Act, the deportation order would not be further suspended or stayed.

HEARING

Sydney, 1980, November 27-28; December 3. #DATE 3:12:1980

Following the making of a deportation order against the applicant, an application to review the decision was filed, and an order was then made suspending the operation of the deportation order to enable the applicant to present a case showing that on the final hearing there would be at least a reasonable argument for the granting of relief under s. 16 of the Administrative Decisions (Judicial Review) Act.

R. McDougall, for the applicant.

P. Roberts, for the respondent.

Solicitor for the applicant: R. McDougall.

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

R. R. Boaden

ORDER

1. The Application for further order under section 15 of the Administrative Decisions (Judicial Review) Act 1977 is refused.

2. The applicant pay the respondent's costs of this application.

3. Liberty is given to either party to fix a date for a directions hearing on seven days notice to the other party.

Order accordingly.

JUDGE1

This is an appropriate case in which to deliver judgment orally and without delay. It is an application by Aldo Capello for the stay or suspension of a deportation order sought under Section 15 of the Administrative Decisions (Judicial Review) Act 1977 ("the Act").

A deportation order was made by the Minister of State for Immigration and Ethnic Affairs dated 17 November 1980 ordering the deportation of the applicant under Section 18 of the Migration Act 1958. The relevant part of the deportation order reads:

"Whereas Aldo CAPELLO being a person not born in Australia, entered Australia as an immigrant on the twenty-second day of June 1975 AND WHEREAS the said Aldo CAPELLO is a prohibited immigrant by virtue of section 7 of the Migration Act 1958 in that he was the holder of a temporary entry permit which expired and no further entry permit applicable to him came into force upon that expiration or has been granted to him since.

Now I, Ian Malcolm MACPHEE the Minister of State for Immigration and Ethnic Affairs, DO HEREBY ORDER, in pursuance of the power conferred upon me by section eighteen of the Migration Act 1958 that the said Aldo CAPELLO be deported from Australia.

Dated this 17th day of November 1980."

An application was filed in this Court at 2.15pm on 27 November 1980 under section 5 of the Act. The grounds of the application are stated as follows:

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

(b) that the making of the decision was an improper exercise of the power conferred by the Migration Act in pursuance of which it was purported to be made.

(c) that the decision involved an error of law.

(d) that the decision was otherwise contrary to law."

Section 5(1) of the Act so far as is relevant provides:

"A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:

(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;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

. . .

(j) that the decision was otherwise contrary to law."

On 27 November 1980 I stood the matter over until the next day, and on 28 November 1980 I made an order suspending the operation of the deportation order until 4pm on 3 December 1980 or further order.

The purpose of that order was to enable the applicant to present a case which would show that upon a final hearing of the matter there was at least a reasonable argument for the granting of relief under section 16 of the Act.

The matter has been before me today only on the question of whether a further stay should be granted. Therefore anything which I say is not a finding of fact or decision on a point of law except to the extent to which I must go to decide the question of the stay or suspension.

The power of the Minister under section 18 of the Migration Act has been considered by the High Court in Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396, and in The Queen v. MacKellar; Ex parte Ratu (1977) 137 C.L.R. 461.

It is sufficient to say that it was held that the power conferred on the Minister by section 18 of the Migration Act is not subject to an obligation to observe the principles of natural justice. It was argued by the applicant that section 5(1)(a) of the Act provides a fresh and separate obligation to observe the rules of natural justice even where no such obligation existed previously. I do not accept this argument.

The rules of natural justice are not inflexible. I consider that section 5(1)(a) of the Act was not intended to create fresh obligations in regard to natural justice where they did not previously exist.

Section 5(1)(a) was to give a person aggrieved a right to make an application for review to the Federal Court upon the grounds that the rules of natural justice which did apply in the making of the decision had not been observed.

Furthermore, I am not satisfied that there is any significant material to support the allegation that the rules of natural justice were not observed by the Minister. On the view I take it is not necessary to decide this point, but it does appear at least some consideration appears to have been given to the question of deportation.

The applicant is seeking reasons for the Minister's decision under section 13 of the Act. The deportation order appears to state everything but the reason for the decision. However, as at present advised it may be that the only reason was that the applicant was a prohibited immigrant. If this was so, I do not see that further reasons would assist the applicant.

The applicant argued that once reasons were obtained there was a likelihood that material would emerge to support one or other of the grounds in the application. This is purely hypothetical and I do not see any reason to consider that it would be likely to flow from any reasons which might be provided under section 13.

It is appropriate to say that I have no jurisdiction to review the order upon the merits or on the basis of hardship. My jurisdiction is purely a statutory jurisdiction under the Act. One matter which I raise but about which no significant submissions have been made is that under section 7(4) of the Migration Act it seems the applicant would cease to be a prohibited immigrant on 22 December 1980 unless on that date a "deportation order in relation to him is in force".

It is not clear whether any order under section 15 of the Act suspending the operation of the decision or staying proceedings under that decision would cause the deportation order not to be "in force". However, in view of the decision I have reached I will not pursue this question.

I am not satisfied that the applicant has presented any arguable case in this matter and I refuse any further order under section 15 of the Act. The result is that no suspension or stay of the deportation order exists after 4p.m. today.

I give liberty to apply to either party to fix a date for a directions hearing on seven days notice to the other party.

I order that the applicant pay the respondent's costs of this application.