Capello v Minister for Immigration and Ethnic Affairs

[1980] FCA 184

C A T C H W O R D S

Admlnlstrative Law - Decision to deport prohlbited

immigrant - Applicatlon for stay of proceedings under

decision - Whether rules of natural ~ustlce appllcable

- Wnether arguable case made out.

Admlnistrative Decisions (Judicial Review) Act 1911 ..

(Cth. ) S . 15.

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

ALDO CAPELLO V. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No. G 126 of 1980

Franki J.

3 December 1980

Sydney.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) NO. G126 Of 1980

DIVISION GENERAL. 1

BETWEEN: ALDO CAPELLO

Appllcant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS.

Respondent

O R D E R

JUDGE MAKING ORDER:	FRANK1 J.
DATE OF ORDER:	3 December 1980
WHERE MADE:	Sydney.
THE COURT ORDERS THAT:

1. The Appllcatlon for further order under sectlon 15

of the Adminlstratlve	Decisions (Judiclal Revlew)
Act 1977 is refused.

2 . The appllcant pay the respondent's costs of

this applicatlon.

3 . Liberty is glven to elther party to flx a date

for a directlons hearing on seven days notice

to the other party.

IN THE FEDERAL COURT OF AUSTRALIA	)
)

NEW SOUTH WALES DISTRICT REGISTRY	) NO. G.126 of 1980.
1
GENERAL DIVISION	)

BETWEEN: ALDO CAPELLO

Appllcant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS.

Respondent.

CORAM: Franki J.

3 December 1980.

REASONS FOR JUDGMENT.

Thls is an appropriate case in whlch to dellver

~udgment orally and wlthout delay. It is an applicatlon

by Aldo Capello for the stay or suspenslon of a deportatlon

order sought under Section 15 of the Admmlstrative

Decisions (Judicial Revlew) Act 1977 ("the Act").

A deportatlon order was made by the Minister of

State for Immlgration and Ethnic Affalrs dated 17 November

1980 ordering the deportation f the appllcant under

Sectlon 18 of the Mlgration Act 1958. The relevant part of the deportatlon order reads:

"Whereas Aldo CAPELLO being a person

not born in Australla, entered

Australla as an immigrant on the

twenty-second day of June 1975

AND WHEREAS the sald Aldo CAPELLO

1s a prohlbited umlgrant by virtue

of sectlon 7 of the Mlgratlon Act 1958

in that he was the holder of a

temporary entry permlt whlch explred

2.

and no further entry permlt applicable

to hlm came into force upon that

expiration or has been granted to

hlm since.

Now I, Ian Malcolm MACPHEE the

Minister of State for Immigration

and Ethnlc Affairs, DO HEREBY ORDER,

In pursuance of the power conferred

upon me by section eighteen of the

Mlgration Act 1958 that the said

Aldo CAPELLO be deported from

Australia.

Dated this 17th day of November 1980.".

An application was filed In thls Court at

2.15pm on 21 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 ~ustlce occurred In connexion

with the makmg of the decislon.

(b) that the making of the decision was an lmproper exercise of the power conferred by the Mlgration Act in

pursuance of whlch	It was purported
to be made.

(c) that the decislon involved an

error of law.

(d) that the decislon was otherwise

contrary to law. I'

Section 5 ( 1 ) of the Act so far as 1 s relevant

provides :

"A person who 1 s aggrleved by a decislon to

whlch thls Act applles that 1 s made after

the commencement of thls Act may apply

to the Court for an order of revlew in

respect of the declslon on any one or

more of the following grounds:

3 .

(a) that a breach of the rules of

natural justlce occurred rn connection

with the making of the	d cislon;
.. .

(e) that the making of the decislon was an improper exercise of the power conferred by the enactment In pursuance

of which it was purported to be made;

(f) that the declslon involved an error

of law, whether or not the error appears

on the record	of the decislon;
...

(j) that the decislon was othcrwlse

contrary to law. I'

On 27 November 1980 I stood the matter over

until the next day, and on 2 8 November 1980 I made an

order suspendlng the operatlon of the deporatlon order

until 4pm on 3 December 1980 or further order.

The purpose of that order was to enable the

appllcant to present a case whlch would show that upon

a flnal hearing of the matter there was at least a

reasonable argument for the grantlng of relief under

sectlon 16 of the Act.

The matter has been before me today only on the

questlon of whether a further stay should be granted.

Therefore anythlng whlch I say 1 s not a flndlng of

fact or declsion on a polnt of law except to the extent

to which I must go to decide the questlon	of the stay
or suspension.

4 .

The power of the Minlster under sectlon 18

of the Migration Act has been consldered by the Hlgh

Court in Salemi v. MacKellarkgo. 4 (1977) 137 C.L.R.

396, and in The Queen v. MacKellar; Ex parte Ratu

(1977) 137 C.L.R. 461.

It is sufficlent to say that it was held that .-

the power conferred on the Mlnister by section 18 of

the Mlgratlon Act is not sublect to an obllgatlon to

observe the principles of natural Justice. It was argued

by the appllcant that section 5(1) (a) of the Act provldes

a fresh and separate obligation to observe the rules

of natural Justice even where no such obllgatlon

exlsted previously. I do not accept this argument.

The rules of natural ~ustlce are not mflexlble.

I conslder that sectlon 5(1)(a) of the Act was not

lntended to create fresh obllgatlons ln regard to natural

justlce where they did not prevlously exlst.

Sectlon 5(1) (a) was to give a person aggrleved

a rlght to make an applicatlon for review to the Federal which did apply ln the making of the declsion had not been observed.

Furthermore, I am not satisfled that there 1 s

any slgnlflcant materlal to suppoethe allegation that

the rules of natural ~ ~ s t i c e w re not observed by the

5.

Minister. On the view I take it is not necessary to

declde this polnt, but it does appear at least some

conslderation appears to have been given to the questlon

of deportation.

The appllcant 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 decislon. However, as at present advlsed It may be that

the only reason was that the applicant was a prohlbited

immlgrant. If this was so, I do not see that further

reasons would assist the applicant.

The appllcant argued that once reasons were

obtained there was a likelihood that material would

emerge to support one or other of the grounds ln the

appllcation. Thls is purely hypothetical and I do not

see any reason to consider that it would be llkely to

flow from any reasons whlch mlght be provlded under

sectlon 13.

It is appropriate to say that I have no

jurisdictlon to rcvlew the order upon the merits or on

the basis of hardshlp. My Jurisdlction 1 s purely a

statutory jurlsdlctlon under the Act. One matter

which I ralse but about which no slgnlficant submissions

have been made is that under sectlon 7 ( 4 ) of the

Migration Act it seems the appllcant would cease to be a prohlbited immigrant on 2 2 December 1980 unless on

that date a "deportatlon order in relatlon to him	1s
in force".

6.

It 1s not clear whether any order under sectlon

15 of the Act suspending the operatlon of the declslon or

staying proceedings under that declslon would cause the

deportation order not to be "In force". However, In

view of the decision	I have reached I wlll not pursue this
questlon.

I am not satlsfled that the appllcant has

presented any arguable case In this matter and I refuse

any further order under sectlon 15 of the Act. The

result is that no suspension or stay of the deportatlon

order exists after 4p.m. today.

I give liberty to apply to elther party to

fix a date for a directions hearlng on seven days

notlce to the other party.

I order that the appllcant pay the respondent's

costs of this application.