Chen, J.H. v Minister for Immigration Local Government & Ethnic Affairs

[1990] FCA 232

23x 9 6

Jl.IDGil\/lENT No. ....... / ........ .....,

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) NO. NG279 of 1990
)
GENERAL DIVISION	)

BETWEEN:  JIN HUI CHEN

Applicant

AND :  MINISTER FOR IMMIGRATION,
LOCAL GOVERNMENT AND
ETHNIC AFFAIRS

Respondent

CORAN:  Davies J.

DATE : 31 May 1990

PLACE: Sydney

- 4 JUN 1990
FEDERAL COURT OF

AUSTRALIA

PRINCIPAL

REASONS FOR JUDGMENT REGISTRY

EX TEMPORE

This application, brought under s.5 of the

Administrative Decisions (Judicial Review) Act 1977 (Cth), seeks an order of review with respect to an order for deportation made under s.12 of the Migration Act 1958 (Cth)("the Act"), as it read on 16 October 1989.

of supplying a prohibited drug and was sentenced to seven

The applicant, Jin Hui Chen, came to Australia on

15 July 1979. On 15 April 1981, he was granted permanent
resident status, that is to say, an entry permit unlimited
in time. On 3 May 1988, Mr Chen was convicted of an offence

years imprisonment. On 31 May 1989, he was released on

parole.

On 15 August 1989, Mr Chen sought and was granted a

resident return visa and, on 5 September 1989, he departed
Australia, apparently to visit his homeland. He returned to
Australia on 18 October 1989. On his re-entry, he was
granted in accordance with his visa an entry permit

unlimited in time.

However, s.l6(l)(c)(ii) provides:-

"(l) Where, after the commencement of this Part

or before the commencement of this Part but
after the commencement of the Immigration
Restriction Act 1901, a person who enters or
entered Australia is not, or was not, at the
time of that entry, an Australian citizen and

who -

(C)	at the time of entry is or was a person
of any of the following descriptions, namely:

(ii) a person who has been convicted of a
crime and sentenced to death, to
imprisonment for life or to
imprisonment for a period of not
less than 1 year;

that person shall, notwithstanding section 10,
be deemed to be a prohibited non-citizen
unless he is the holder of an entry permit
endorsed with a statement that the person
granting that permit recognizes him to be a
person referred to in this sub-section."

Mr Chents entry permit was not so endorsed. Accordingly, Mr
Chen was deemed to be a prohitibed non-citizen and did not
receive permission to enter into or to remain in Australia.

In the meantime, on 16 October 1989, a deportation order had been made under s.12 of the Act which provided:-

"Where -

(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of

an offence;

(b)

at the time of the commission of the offence the person -

(i)	was not an Australian citizen; and
(ii)	had been present in Australia as a permanent resident for a period of less than 10 years or for periods

that in the aggregate do not amount

to a period of 10 years; and

(C) the offence is an offence for which the
person was sentenced to death or to
imprisonment for life or for a period of
not less than one year,

the Minister may order the deportation of the

person. "

The principal submission put by Dr G. Flick,

counsel for Mr Chen, is that the deportation order was
invalid as Mr Chen was not in Australia when the order was
made. Dr Flick submitted that the criminal's presence in
Australia was a jurisdictional fact, the absence of which
invalidated the order.

Dr Flick referred to the definitions of

"deportation", "deportation order" and "deportee" in s.5(1)
of the Act, to the structure of Part I1 of the Act dealing
with the entry, presence and deportation of non-citizens, to
the marginal note to s.12 and to a number of individual
sections which tend to show that what was intended, and
intended solely, by the word "deportation" was the physical

removal of the deportee from Australia.

Mr D. Yates, counsel for the respondent Minister,

contended on the other hand that s.12 conferred plenary
power, the criteria for which were specified in the section
and that no additional criterion should be implied. Mr
Yates relied in this respect upon Nolan v. Minister of State
for Immigration and Ethnic Affairs, (1988) 165 C.L.R. 178 at

187.

The resolution of the issue turns on the

construction to be placed upon the Act.

A deportation order does not in itself remove any

right which the deportee may have to remain in Australia.
This is clear with respect to a s.18 deportation order, for

such an order is made with respect to a prohibited

non-citizen who has no such right. See -	R. v. McKellar; ex
parte Ratu; (1977) 137 C.L.R. 461 at p.479.	A person who is

the subject of a deportation order made under s.12 is not
thereby deemed to be a prohibited non-citizen and is not
thereby subject to offence provisions of the Act such as
s.27 and s.31B; but on deportation, the deportee's permanent

entry permit ceases to have any force or effect. See

s.9(1). If the deportee subsequently enters Australia,

provisions such as s.16(1) and s.27(l)(aa) will apply.

These considerations suggest that Dr Flick was

correct when he submitted that deportation was concerned
with the physical removal of a person from Australia.
Moreover, the word "deportation" itself may so suggest.

O'Connellls International Law, 2nd Ed., p.711, comments:-

"Sometimes a distinction is drawn between
deportation and expulsion, but it is one to
which international law is indifferent.
Deportation is the act of removal of persons
whose initial entry is illegal, whereas
expulsion is the termination of the legal
entry and right to remain."

However, the presence of the criminal in Australia at the time of the making of the deportation order is not a criterion specified in s.12, notwithstanding that the

section deals with the criminal's presence in Australia at

the time of the commission of the offence and during a

period prior thereto.

Moreover, s.5(4) provides:-

"(4) For the purposes of this Act, a person

shall not be deemed to have entered or
re-entered Australia, or to enter or re-enter

Australia, where, having left Australia -

(a)	he returned or returns to Australia within the prescribed time after the date on which he left Australia, in the vessel in which he left Australia after having remained, at all times during his absence from Australia, a passenger in, or a member of the crew of, that vessel; or
(b)	he returned or returns to Australia without having entered any country other than an external Territory other than the Territory of Christmas Island,

unless he was, at the time when he left

Australia, a person whose deportation had been

ordered. "

This subsection suggests that an order for deportation is not to be affected by the fact that the deportee may have left territorial waters.

A deportation order to be valid must be made for

the purpose of having the deportee removed from Australia.
The making of an order for some extraneous purpose would be
invalid. See my comments in Park Oh Ho and Ors v. Minister

for Immigration and Ethnic Affairs (unreported. 29 March

1988).

But the issue is whether, provided that that

purpose be present, it is also necessary that the deportee

be in Australia at the time of the making of the order.

It seems to me that it would unduly frustrate the

operation of s.12 so to require. It is sufficient that the
order be made bona fide for the purpose of s.12 with the end
in view of havlng the deportee expelled from Australia when
located. The precise locatlon of the deportee at the time
of the order seems to be an inessential fact, and sometimes
a fact it would be difficult to ascertain.

Moreover, if the deportee's presence in Australia

was a ~urisdictlonal fact, one would think that a

deportation order would terminate should the deportee leave
Australia for any reason, even if the deportee left

Australia under an alias.

I cannot draw from the Act any implication that

Parliament intended such results. Indeed, a decision-maker under s.12 is not concerned with the actual location of the deportee. Implementation of the order is a matter for

others in accordance with s.20, s.22 and like sections.

I therefore reject the principal contention put by

Dr Flick.

Dr Flick did not make any attack on the

decision-maker's purpose, it being common ground that when

the order was made the decision-maker believed Mr Chen to be

in Australia.

However, the following two grounds were raised:-

l .	(a)	That the making of the decision to deport the Applicant was taken without consideration being given to the fact that the Applicant was not in Australia at the time the decision was made.
(d)	Further and in the alternative, that the making of the decision was unreasonable by reason of a failure to make inquiries as to the location of the Applicant at the time the decision was made."

The materlal before the Court shows that Mr Chen had lived in Australia since 1979 and that his wife and son,

with whom he lived, were Australian citizens. There was no

material before the decision-maker suggesting that Mr Chen
would be out of the country at the time of the making of the
order. The decision-maker was therefore entitled to proceed
on the footing that Mr Chen was living in Australia as he
had done for many years. Accordingly, the above grounds

are not well founded.

The application must be dismissed with costs.

I certify that this and the 7

preceding pages are a true copy of

the Reasons for Judgment herein of

the Honourable Mr Justice Davies.

Associate:	& h ~ c e a / t a ^ e
Date:	31 May 1990