Chua, J. v Minister for Immigration & Ethnic Affairs
[1986] FCA 267
•04 JULY 1986
Re: JUDY CHUA
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG 65 of 1986
Deportation Order
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.
CATCHWORDS
Deportation order - whether order invalid if country of destination not stated - whether powers of officers to make arrangements for deportation create obligation on Minister to state country on order - distinction between the making of a deportation order and arrangements made to effect order.
Migration Act 1958 ss.5,6,6A,7,10,12,14,18,20,21,21A,22,39
Administrative Decisions (Judicial Review) Act 1977
Znaty v. Minister of State for Immigration (1972) 126 C.L.R. 1
Robtelmes v. Brenan (1906) 4 C.L.R. 395
HEARING
MELBOURNE
#DATE 4:7:1986
JUDGE1
The preliminary question of law raised in these proceedings is whether a deportation order made pursuant to s.18 of the Migration Act 1958 is invalid if it does not specify the place to which the deportee is to be taken.
Judy Caluso CHUA, also known as Judy AZZOPARDI ("the applicant"), is a deportee under the Migration Act 1958 ("the Act"). She is a person in respect of whom a deportation order is in force. The deportation order was made under s.18 of the Act by a delegate of the Minister of State for Immigration and Ethnic Affairs. The deportation order is dated 3 January 1986. The substantive part of the deportation order is set out:-
"WHEREAS JUDY CALUSO CHUA also known as JUDY AZZOPARDI being a non-citizen, entered Australia on the fourth day of April 1985
AND WHEREAS the said JUDY CALUSO CHUA is a prohibited non-citizen by virtue of section 7 of the Migration Act 1958 in that she was the holder of a temporary entry permit which has expired and no further entry permit applicable to her came into force upon that expiration or has been granted to her since
NOW I, WILLIAM J PERRY, the Acting Regional Director to the Department of Immigration and Ethnic Affairs, and delegate of the Minister of State for Immigration and Ethnic Affairs, DO HEREBY ORDER, pursuant to section 18 of the Migration Act 1958, that the said JUDY CALUSO CHUA be deported from Australia".
It should be noted that the deportation order does not specify the place to which the applicant is to be taken.
On 3 April 1986, the applicant, pursuant to the Administrative Decisions (Judicial Review) Act 1977, sought an order of review in respect of the decision to make the deportation order. Two of the grounds relied upon to support the order to review were that the decision involved an error of law and that the decision was contrary to law in that the deportation order did not specify the place to which the applicant was to be taken. These two grounds have been argued as a preliminary question of law.
The deportation order was made pursuant to s.18 of the Act. That section provides:-
"18. The Minister may order the deportation of a person who is a prohibited non-citizen under any provision of this Act."
Reference should be made also to s.20 of the Act:-
"20. (1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.
(2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order."
The relationship between sections 18 and 20 of the Act were discussed by Northrop and Pincus JJ. in Dallikavak v. Minister of State for Immigration and Ethnic Affairs, Full Court, 6 August 1985, unreported.
It is noted that s.18 does not contain an express provision that a deportation order must specify the place to which the deportee is to be taken. The words deport and deportation suggest the carrying away of persons. This is supported by reference to definitions contained in dictionaries. Thus, in the Shorter Oxford English Dictionary, the relevant meaning given to the word "deport" is "To carry away, remove; esp. to remove into exile, to banish"; while the meaning given to the word "deportation" is "The action of carrying away; forcible removal, esp. into exile; transportation". The Macquarie Dictionary gives similar meanings; deport, "1. to transport forcibly,as to a penal colony or a place of exile. 2. to expel (an undesirable alien) from a country; banish"; deportation, "the lawful expulsion of undesirable aliens and other persons from a state".
The general practice of the Minister has been not to specify, in a deportation order, the place to which the deportee is to be taken. Nevertheless, in Minh Ter Sheng v. Minister for Immigration and Ethnic Affairs, Federal Court, 17 February 1986, unreported, Gray J., in giving reasons for granting a stay of a deportation order pending the hearing and determination of an application for an order of review, said:-
"I regard it as seriously arguable that the purported order for the deportation of the applicant was wholly invalid, as it failed to specify a destination to which he would be taken."
In the present case, counsel for the applicant, relying on arguments similar to the reasons appearing in the judgment of Gray J., submitted that in law, the deportation order was invalid.
Before considering the submissions put on behalf of the applicant, a reference should be made to some aspects of the Act and to some of the definitions contained in the Act which are to apply unless the contrary intention appears. "Deportation" means deportation from Australia. That definition is consistent with the usual meaning given to the word "deportation". Stress is placed on the concept of carrying away. A "deportation order" means an order for the deportation of a person. A number of sections confer a power on the Minister to make a deportation order; see, for example, sections 12 and 14 as well as s.18. "Entry permit" means a permit issued under s.6. Under sub-section 6(2), an officer, as defined in s.5, may issue an entry permit. Such a permit may be a temporary entry permit, see sub-section 6(6), which phrase is defined to mean an entry permit referred to in sub-section 6(6). In s.6A, a reference to an entry permit is to be read as a reference to an entry permit other than a temporary entry permit. A "non-citizen" means a person who is not an Australian citizen, while a "deportee" means a person in respect of whom a deportation order is in force. The word "vessel" includes an aircraft.
The phrase "prohibited non-citizen" is not defined, but the Act contains provisions specifying what persons are prohibited non-citizens. Thus, under sub-section 6(1), a non-citizen who, not being the holder of an entry permit that is in force, enters Australia, thereupon becomes a prohibited non-citizen. The Minister, under s.18, has power to make a deportation order against such a person.
In the present case, the deportation order states that the applicant is a prohibited non-citizen "by virtue of section 7 of the Migration Act" in that she was the holder of a temporary entry permit which had expired and no further entry permit had been issued; see s.10 and sub-section 7(3).
Once a deportation order has been made, sub-section 20(1) requires the deportee to "be deported accordingly". The deportee may be arrested and may "be kept in custody as a deportee in accordance" with sub-section 39(6); see sub-section 39(1). Sub-section 39(6) is set out:-
"(6) A deportee may be kept in such custody as the Minister or an officer directs -
(a) pending deportation, until he is placed on board a vessel for deportation;
(b) at any port or place in Australia at which the vessel calls after he has been placed on board; or
(c) on board the vessel until her departure from her last port or place of call in Australia."
Under sub-section 39(7), an authorized officer may order the release of a person who is in custody.
The method of deportation is decided pursuant to the provisions of the Act. Where the deportation order has been made by virtue of a reference to specified provisions of the Act, not including s.7, s.21 applies. It is interesting to note the special provisions contained in sub-section 21(3) relating to the carriage of the deportee "to the place at which he boarded the vessel when he came to Australia".
When the deportation order is made by virtue of or by reference to s.7, the provisions of sections 21A and 22 apply. Sub-sections 22(1) and (3) are set out:-
"22. (1) The master, owner, agent or charterer of a vessel shall, on being required in writing by an authorized officer so to do, receive a deportee on board for conveyance to a place specified in the requirement, being a place to which the vessel is bound, and also receive on board, for such time as is required by the authorized officer, a person charged with the custody of the deportee.
...
(3) An officer shall not make a requirement under sub-section (1) unless he is satisfied on reasonable grounds that the deportee will be permitted to land at the place specified in the requirement, and it is a defence to a prosecution for a contravention of that sub-section if the defendant proves that, if the requirement had been complied with, the deportee would not have been permitted to land at the place specified in the requirement."
Sub-section 22(2) contains provisions relating to the payment by the Commonwealth of charges for the conveyance of the deportee.
In the Migration Act, the phrase "authorized officer", in relation to the exercise of any power or the discharge of any duty or function under that Act, "means a person authorized by the Minister to exercise that power or discharge that duty or function"; see s.5.
Thus, under sub-section 22(1), an authorized officer, not the Minister, has the power to require the master of a vessel to convey the deportee to the place specified in the requirement. Under sub-section 22(3), that officer, and not the Minister, shall not make the requirement "unless he is satisfied on reasonable grounds that the deportee will be permitted to land at the place specified in the requirement".
Section 21A contains provisions relating to the recovery by the Commonwealth of moneys paid by the Commonwealth in arranging for the deportation of a deportee including the recovery of moneys expended in maintaining the deportee while in custody.
The question of whether the deportation order made in this case is invalid or not, must be considered having regard to the provisions of the Migration Act summarised above. There is no express requirement that the deportation order must state the place to which the deportee is to be deported.
The constitutional power of the Commonwealth to make laws for the deportation of aliens, and, by inference, prohibited non-citizens, was upheld in Robtelmes v. Brenan (1906) 4 CLR 395. A reading of the judgments in that case make it clear that the power of the Commonwealth to make laws for the deportation of aliens was not limited by a restriction that any deportation order must specify the place to which the deportee was to be deported; see, in particular, Griffith C.J. at p.406 and O'Connor J. at pp.421-2. In that case, the relevant statutory provision was that upon certain facts being established, a Magistrate or the Minister had power to order that a person "be deported from Australia, and he shall be deported accordingly".
Counsel have not referred me to any authority to support the proposition that a power to make a deportation order can be exercised validly only if the deportation order states the place to which the deportee is to be deported.
A large number of authorities relevant to the exercise of the power to deport are considered in Znaty v. Minister of State for Immigration (1972) 126 CLR 1. That case involved a consideration of the method by which a deportation order made under s.18 of the Migration Act, was to be effected. The matter was an application for interlocutory orders. The terms of the deportation order are not set out in the report, but, from what appears in the reasons, the inference is that the order was in the normal form that the deportee be deported, but the order did not specify the place to which the deportee was to be deported. In making arrangements for the conveyance of the deportee from Australia, a decision was made to place him on an aircraft with a view that he be taken to Morocco. The deportee wished to go to Japan. He had an airline ticket and visa for Japan. The deportee, who was in custody pursuant to s.39, sought interlocutory orders restraining the Minister and officers of the Department of Immigration and Ethnic Affairs from ordering the plaintiff be conveyed to Morocco and from restraining an authorized officer from requiring the master of a vessel to receive him on board for conveyance to Morocco. The powers considered by the Court were those contained in sections 20, 39 and 22 of the Migration Act, not s.18. At the conclusion of the hearing, the Court, by a majority, dismissed the application and announced that the reasons would be published later.
In the circumstances, Barwick C.J. and Windeyer J., who dissented from the order made, gave brief reasons only. At p.4, Windeyer J. said:-
"The powers of the Commonwealth authorities under the Migration Act are to enable the Commonwealth government to determine whether a person coming from abroad should be allowed to enter Australia and to prescribe conditions for his entry and of his stay in Australia. The power to deport prohibited immigrants is a power to rid Australia of persons not lawfully entitled to remain here. It is not I think a power enabling the Government to insist that they be taken to a particular place."
At p.3, Barwick C.J. agreed with the conclusion reached by Windeyer J. and added:-
"I am unable to see any need in order to give full amplitude to the constitutional power to include in it the power to determine the place to which the deportee must go. However, as others have been of a different opinion and the Court has made an order conformable thereto it seems unnecessary for me to develop the matter further."
McTiernan and Owen JJ. agreed with the reasons published by Walsh J.
No member of the High Court suggested that the power conferred by s.18 of the Migration Act was invalid if the deportation order did not specify the place to which the deportee was to be deported. The reasons of Walsh J. were directed to other sections of the Act. At p.6, Walsh J. set out information supplied to the Court:-
"Counsel for the defendants informed the Court that it was not intended that a requirement in writing would be made in the terms set out in s.22, but it was intended to arrange that the plaintiff be placed on a Qantas aircraft on a flight which would connect with a flight to Morocco. A ticket to Morocco would be obtained and the Commonwealth would pay for it. It was not intended that any attempt would be made by or on behalf of the Commonwealth to prevent the plaintiff from leaving the aircraft after it had left Australia or to ensure by physical restraint or by surveillance that the plaintiff left the aircraft at Morocco and at no other place outside Australia."
At p.7, His Honour said:-
"The plaintiff made no claim, nor could he have supported any claim, that the deportation order was invalid."
The nature of the claim made by the deportee is set out at p.7:-
"What the plaintiff did claim, according to my understanding of the submissions made on his behalf, may be stated as follows: (1) No power is given by the Act to the Minister to select a destination to which a person is to be deported.
(2) It was shown by the evidence and by the statements of counsel for the defendants that the Minister had selected a destination to which the plaintiff was to be deported. (3) The arrangements which the Minister had made or intended to make for the departure of the plaintiff on a Qantas aircraft, as set out above, were steps taken to give effect to a decision that the plaintiff was to go to Morocco and they were not steps which could be regarded as being taken for the purpose of carrying into effect the deportation order. (4) Therefore, the Minister should be restrained from proceeding to carry out the proposed arrangements."
His Honour then considered at some length those contentions and a number of authorities including Australian and overseas cases. He held that the appropriate officer, in making arrangements for the deportation of a deportee, was empowered to specify the place to which the deportee was to be deported. It is not necessary for me to canvass those reasons or authorities. It is sufficient to say that a power that enables an officer of the Commonwealth to specify the place to which a deportee is to be deported when that officer is making arrangements for the deportation of a deportee, cannot be treated as imposing a duty on the Minister, when making an order for the deportation of a prohibited non-citizen under s.18 of the Migration Act, to specify in that order the place to which the deportee is to be deported. To hold otherwise would be to deny the nature of the power to deport as discussed in the authorities and would, in effect, result in holding that the Justices of the High Court acted per incuriam in deciding Znaty's Case. No suggestion was made in that case that an order of deportation under s.18 was invalid if it did not specify the place to which the deportee was to be deported.
At p.10, Walsh J. said:-
"It was suggested in argument that deportation can have no purpose except the physical removal of a person from the territory of the deporting country, and that in exercising a power to deport the only action which may lawfully be taken is an action which is necessary to achieve that purpose. It was suggested that several consequences flow from this. One is that if the deportee is able and willing and offers to leave the country no step can be taken except to keep him under surveillance and, if necessary, to hold him in custody pending his fulfilment of his offer. Another consequence is that it is no concern of the deporting authority to consider what country is willing to receive the deportee. Therefore, it is extraneous to the exercise of the power to deport to consider whether or not it is desirable to send a man to a country which is known to be unwilling to receive him or to consider whether or not it is probable that he will still be on board the ship or aircraft which takes him away, when it returns to this country. I do not find these propositions acceptable. I do not think that the concept of deportation has been regarded in any of the cases which I have examined, or should be regarded, as restricted in the way and to the extent suggested or that the word 'deport' and its derivatives should be assumed to have been used in an Act relating to deportation with such a limited meaning. It was not so regarded in Robtelmes v. Brenan (1906) 4 CLR 395."
In my opinion, the deportation order made in the present case is not invalid by reason of the fact that it does not specify the place to which the applicant is to be deported.
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