Chetri, B.B.K v Minister for Immigration Local Government & Ethnic Affairs

[1990] FCA 192

JUDGMENT NO. ..! %,J.

IN THE FEDERAL COURT OF AUSTRALIA	)	QLD G47 of 90
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: BISHNU BAHDUR KHADAKA CHETRI

Applicant

AND:  MINISTER FOR IMMIGRATION, LOCAL GOVERNbIENT AND
ETHNIC AFFAIRS

Flrst Respondent

RONALD JAMES MCLAUGHLIN

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	20 APRIL 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    the direction of the second respondent that the applicant be held in custody, which was issued on 17 April 1990, be stayed;

2.     the application for interlocutory relief be, in all other respects, dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA	1	QLD G47 of 90
DUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	1

BETWEEN: BISHNU BAHDUR KHADAKA CHETRI

Applicant

AND:  MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND
ETHNIC AFFAIRS

First Respondent

RONALD JANES McLAUGHLIN

Second Respondent

PINCUS J. 20 APRIL 1990

EX TEMPORE REASONS FOR JUDGMENT

This is an application for interlocutory relief made by

M r Chetrl against the Minister for Immigration, Local Government

and Ethnic Affairs and Mr McLaughlin. The application, which I have given leave to file, complains of decisions made of 17 April 1990 that:

Australia that he thereupon be kept in custody, The applicant be prevented from entering and that he be removed from Australia pursuant to
ss.87 and 89 of the Fisration Act.

During the course of the hearing, Mr Boccabella, who appeared for the applicant, explained that the decisions which he wished to have reviewed were, in the light of the evidence, somewhat different. Mr Logan, who appeared for the respondents, took no objection to my considering the matter on that basls - that is, the decisions which I propose to deal with are not those mentioned in the application. The facts are, so far as immediately relevant, that Mr Chetri is acquainted with a Mr

L.A. Tripp who lives in Nepal, and he came to Australia armed

with documents supplied by I@ Tripp. The documents which are in evidence are, flrstly, a letter to Mr Tripp's former wlfe, and secondly a letter to a prospective employer.

The letter to Mr Tripp's former wlfe said this, in

part :

"Pascal, the lad who brings you this letter will fill you in with all the latest on me in Nepal. The poor guy wants to work in Australia, and I have asked Chrls lf he would be interested to employ him as a waiter. He is qualified as one and has worked in the Middle East and Germany. He took Franz and Gang around for a few days. Please see Chris if he can help him out. I have written to Chris also. "

The other letter to - addressed "Dear Chris," also spoke of the

applicant and did so favourably, mentioned hls working history,
and said:

"Chris, I was wondering if you could help him out with a job in your establishment as a waiter or whatever. Why don't you give him a trial run for a week and see how he performs. I am sure he will not let you down, and I feel being a sincere chap he will do his utmost not to fail you in his job."

Now the applicant with, apparently, the assistance of a request from Mr Tripp, obtained from Nepal a visa which was issued on 19 January 1990 for:

"Multiple travel before 18 July 1990, for stay three months, subject to the grant of an entry permit on each arrival."

The applicant arrived in Australia on 17 Aprll, thls week, armed with the visa. He then obtalned from an authorised official an entry permit allowing him to remain for three months. That was done in what might be described as a routine way; its validity is not in issue.

What is in lssue is that, fairly shortly after the visa was granted, it was cancelled by Mr McLaughlin, the second respondent; that is the first decision which is challenged by M r Boccabella on behalf of the applicant. The circumstances in

which it was challenged were that a customs official, who was	called before me, reported to Mr McLaughlin that the applicant
had said he proposed to work in Australia, and Mr McLaughlin says that the same was mentioned to him.
The precise expression used was the subject of some variation but that does not seem to me to be of any great consequence. Now the applicant has given evidence he did not say anything of the sort, and I have, in effect, been invited by
Mr Boccabella to hold that there is an issue to be tried in
relation to that matter. Mr Boccabella has argued that, if the remarks which were claimed by the customs official and second respondent to have been made were not in fact made, then the official, Mr McLaughlin, who cancelled the visa, acted on an irrelevant consideration.
In my opinion, with all due respect to Mr Boccabella, that is not the way in which matters are looked at in the fleld of administrative law. It is not my function to conduct an appeal on the facts. If it were my function, I must say I would unhesitatingly accept the evidence of Mr McLaughlin. One reason for that is simply that the version of events given by the applicant is improbable, ln that the account which he gives of the conversation wlth M r Tripp accompanying the handlng over of the correspondence I have mentioned seems to me hlghly unlikely. I can see no reason why, if Mr Tripp was wrltlng a letter designed to get Mr Chetri a job in Australia or to help him to do so, he would not have mentioned that. It seems to me
improbable in the highest degree that he would give hlm the letters with a false account of their contents so far as they
concerned the applicant.
However that may be, it seems to me clear that there is nothing in the statute which entitles the Court to conduct
what would amount to a rehearing of the purely factual question of what was the applicant's true intention when he arrived in this country, and I decide that there is no matter fit to be tried on that issue. A second objection taken by Mr Boccabella whlch seems to me to have more substance is based upon S. 5 (2) (e) of the Administrative Decisions (Judicial Review) Act 1977. It is said that the second respondent improperly exercised his
power to cancel the entry permit because he did so at the direction or behest of another person.
It is convenient to leave discussion of that point unt~l I have dealt with another matter. The second decision which is challenged by l& Boccabella is one which is evidenced by a document being part of Exhibit 1 in which Mr McLaughlln purports to direct that the applicant:

"a person not being exempted by instrument under the hand of the Minister from the operation of Section 76 of the act who travelled by aircraft from a place outside Australia to a proclaimed airport and who has sought and been refused an entry permit, be kept in your custody util 1800 hours on 20 Aprll 1990."

The polnt whlch is taken by Mr Boccabella about that is simply that, whereas the authority to hold in custody, is framed in terms of s.89(3) of the Misration Act 1958, s.89(3)
does not in truth cover the matter.	It says, in part:

"Where a person, not being a person exempted under subsection 106(1) from the operation of section 76 who travels by aircraft from a place outs~de Australia to a proclaimed airport has sought and been refused an entry permit at that airport . . . the person may, if an authorized officer so directs, be taken into custody ..."

and then it goes on with other ancillary matters. The submission which Mr Boccabella makes is that the expression has sought and been refused an entry permit does not fit the facts. The argument is that what in truth happened was that the applicant obtained an entry permlt. The permit was then cancelled when he was taken into custody.

Although Mr Logan, who has appeared for the respondents, has argued that this raises no questlon fit to be tried, I am of a contrary oplnion and it seems to me arguable that what Mr Boccabella contends about s.89(3) is correct. The result of so holding is a matter which I will deal with in due course.

To return now to what seems to me to be the more
important practical polnt - that is, the application of

s.5(2)(e). It is necessary to state, as I mentioned to counsel, that, even at an interlocutory stage, it is rather unsatisfactory to have to determine matters of this sort without

havlng the relevant documents. Mr Logan apologised for their	absence, but indeed both sides seem content to have me decide
the matter on the assumption that Mr McLaughlin accurately stated the effect of the documents. Since we operate on an adversary system, it was not, it seems to me, desirable or orthodox for me to direct that the documents be produced, and I will decide the matter in the way in which it has been placed before me.
This is that there were two relevant documents, one of which was an authority, the validity of which is not challenged, permitting Mr McLaughlin to exercise the Minister's functions under s.35(1) of the Miaration Act, which reads as
follows :

"The Minlster may at any time in hls or her absolute discretion, cancel a valid temporary entry permit. "

The argument is that in deciding to cancel the valid temporary entry permit, Mr McLaughlin, second respondent, acted unlawfully because that decision was one taken at the direction or behest of another person.

The direction or behest is tied up with the other unproduced document I have mentioned, which is said to have been lssued about 1982 or 1983, and as a result of which Y5 McLaughlin regarded himself as obliged to consult his superiors

before cancelling a valid temporary entry permit. The nature of	the dlrection being unknown, I cannot expatiate upon its
validity - that is, it is unclear whether or not anyone may be able to give such a dlrection.
The assumption which Kr Boccabella's argument makes is that such a direction is necessarily invalid. The terms of s.5(2) (e) are not designed to achieve the result that if a statute permits such a direction to be given, then actlng upon it is unlawful. The notion of a personal discretionary power,
in this context, seems to me to imply power which must be
exercised otherwise than at the direction or at the behest of another person.

But I am content to proceed on the assumption which

Boccabella invites me to make - namely, that if there were an act at the dlrection or behest, then it would be contrary to the statute. The question which has troubled me, and which was one of the reasons why I adjourned the matter from 12.30 to 2.15, is this: that on the evidence it is unclear whether or not there 1s any basls for argument that the cancellation was at the dlrection or behest of anyone else.

What Mr McLaughlin seems to have done, whether he dld so in accordance wlth the direction or not, was to have regarded his superiors as having a power of veto. That is, he does not say, "I did not know whether I should do this or not; it did not seem to me that I should decide it, and I asked my superiors

whether I should". The burden of his evidence, as I understood	it, was not that; lt was that he could not do as he would
otherwise have done without an additional permission - that is, two things were necessary: first of all, that he wanted to do it, and, secondly, that his superiors would let him do it.
The problem, as it seems to me, for the applicant in that is that there is really no evidence, as I see it, that what
M r McLaughlin did, namely, cancel, was directed or requlred by
anyone else. He sald - and he was not challenged on thls - that he got approval and, as I have mentioned, he seems to have regarded that as a barrler in his path, not a positive requirement that he cancel, but a permission CO do so.

The question of whether or not the requirement of such

a permission, if there was one, was valld, seems to me to be, in

a sense, academic. If the imposition of the barrler in the path of the holder of the ministerial discretion under s.35 was invalid, that would be a ground of complaint if the barrier prevented him from doing what he would otherwise have done. In this case it did not, and the barrier was inoperative - that is, the approval was granted.

In my opinion, although the matter has somewhat troubled me, there simply is, in the end, no evidence of acting at the direction or behest of another within the meanlng of s.5(2)(e), and I therefore hold that there is no question to be

three which have been raised by Mr Boccabella, is the one	tried raised on that. The only questlon to be tried, of the
concerning custody. The submissions made by counsel for the respondent included the contention that the evidence was all before me and I might as well decide the matter finally. I pointed out to counsel that that could not be done without M r Boccabella's consent, which has not been forthcoming, and I think for the very good reason that the evidence on thls point is, as I have mentioned, rather scrappy.
Nevertheless, it seems to me that in view of the strength of the argument about the custody order, it would be wrong to let the order stand, and I will stay the authority to hold in custody forthwith. I am conscious, in doing so, that the stay will operate only during the next three hours or so, because it runs out at 6 o'clock, but its invalidity seems to me clear enough to require that. The result is that the application for interlocutory relief is dismissed, except that the direction of the second respondent that the applicant be held in custody, which direction was issued on 17 April 1990, is stayed.

I certify that thls and the nine preceding

pages are a true copy of the reasons for judgment herein of Hls Honour M r Justice Plncus.