Cole, John v Minister for Immigration & Ethnic Affairs

[1983] FCA 363

Re: JOHN COLE
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
VG 248 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.

CATCHWORDS

Administrative Law - Judicial review - deportation of a prohibited immigrant - whether procedures were required by law to be observed in connection with the making of the decision that the applicant be deported pursuant to s. 18 of the Migration Act.

Administrative Decisions (Judicial Review) Act 1977: s. 5(1)(b)

Migration Act 1958: ss. 6, 6A, 18, 20, 27, 38, 66D

HEARING

MELBOURNE

#DATE 12:12:1983

ORDER

1. That the application be dismissed, with costs.

2. That the stay granted on 17 November 1983 be terminated.

JUDGE1

This is an application by John Cole (the applicant) pursuant to s. 5 of the Administrative Decisions Judicial Review Act 1977 (the Judicial Review Act) for an order of review in respect of the decision of the Minister for Immigration and Ethnic Affairs (the Minister) that the applicant be deported made on 31 October 1983 pursuant to s. 18 of the Migration Act 1958 (the Act).

On 24 October 1983 the applicant was arrested pursuant to s. 38 of the Act by officers of the Department of Immigration and Ethnic Affairs (the Department) and kept in custody at the lock-up at the Midway Migrant Centre. The applicant telephoned Mr Little, a solicitor, who later that day attended at the lock-up and took instructions from the applicant. The applicant telephoned Mr Little again on 25, 26, 27, 28 and 31 October 1983. Each of these calls was made after a request by the applicant to an officer of the Department at the lock-up.

On 27 October 1983 the applicant was interviewed by an officer of the Department (the officer). He was told of the ministerial policy in relation to prohibited immigrants and was given the opportunity to make written submissions.

The officer prepared a handwritten statement which the applicant signed. When cross-examined on behalf of the applicant, the officer agreed that the applicant printed his signature to it slowly, like a person not normally used to writing in English. The officer stated that, after the interview, the applicant was fully aware of what was happening. He described the applicant as not totally conversant with English but able to communicate effectively, with some difficulty. The applicant was called as a witness and gave evidence in English, which revealed no difficulty in comprehension or expression.

It was explained to the applicant at that interview that the purpose of it was to place information before the Regional Director of the Department bearing on the question whether he should be allowed to remain in Australia or be deported.

The applicant informed the officer that: he was born in Freetown, Sierra Leone on 16 April 1955 and is a citizen of that country; he arrived in Australia in August 1979 on a ship owned by the Blue Funnel Lines and on which he was employed as an assistant steward; he left the ship in Sydney and did not return to the ship before it left Australia; he understood that he had no authority to remain in Australia and he was in this country illegally; he has no family in Australia but has his mother, father, one brother and two sisters in Sierra Leone; his passport was in Sierra Leone; he has no romantic attachments, although until recently he had a girlfriend of five months standing but he had not seen her for two months; and he has no formal skills or qualifications. The departmental submission to the delegate of the Minister said, inter alia; that the applicant had no entry permit; that he had no authority to work, although he had worked and had not received unemployment benefits; and that he wished to stay in Australia and join the army or the police force, but otherwise he had no submission to make.

Upon entering Australia without an entry permit the applicant became a prohibited immigrant by virtue of s. 6(1) of the Act and guilty of an offence against the Act punishable upon conviction by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months (see s. 27(1)(a)). Under s. 18 the Minister may order the deportation of a prohibited immigrant and s. 20 provides that he shall, unless the Minister revokes the order, be deported accordingly. Under s. 66D these powers may be delegated by the Minister.

The applicant was to be brought before a Magistrate on 2 November 1983 pursuant to s. 38(3) of the Act so that authority for his extended detention in custody could be obtained, but the delegate of the Minister signed an order for his deportation on 31 October 1983. Mr Little did not know of the making of the deportation order until he attended at court on 2 November 1983. 1 November 1983 was a public holiday in Melbourne. Later on 2 November 1983 Mr Little wrote to the Department. Part of that letter said:

"I make my usual protest at the absence of natural justice in the making of the order, and request reasons for the decision and copies of all documents, including the departmental submission to the person who made the order.

When these documents are to hand an application for reconsideration will be made."

It appears that Mr Little's letter was not received by the Department until 8 November 1983. On 15 November 1983 Mr Little received a reply by telegram from the Department which read:

"I refer to your letter of 2 November 1983 to the Regional Director of the Department in Melbourne concerning Mr John Coles (sic). The departmental file on Mr Cole is available for inspection in the Victorian office of the Department. You might care to contact Mr Kavanagh to make necessary arrangements. A formal statement of reasons for the decision will be forwarded as soon as possible. The deportation order is to be put into effect on 16 November.

L.B. Woodward. Deputy Secretary."

In his affidavit in support of the application Mr Little deposed as follows: "9. On 16 November, 1983, I attended at the office of Mr. Kavanagh to see the Departmental file relating to the applicant but after being informed by a person seated outside his office that he was temporarily engaged and I would have to wait and after having waited to no avail for a short time I left as I was pressed for time.

10. Later the same day I telephoned Mr. Kavanagh and he informed me that the submission to the delegate of the Minister for the issue of a deportation order said, to the best of my recollection, that the applicant, in answer to questions put to him had said he was born on 15 April, 1955, in Freetown, Sierra Leone, and arrived in Australia in August, 1979, as an assistant steward on a Blue Funnel Line ship. He had no relatives here, but had a mother, father and two sisters in Sierra Leone. He had no entry permit. He had no authority to work, although he had worked and had not drawn unemployment benefits while in Australia. He wished to stay in Australia and join the army or the police force, but otherwise had no submission to make. The Departmental submission to the delegate of the Minister also said he was apprehended on 24 October, 1983.

11. On 24 October, 1983, and 16 November, 1983, when I spoke to him the applicant gave me similar information to that which was contained in the Departmental submission, and I verily believe it to be true."

In paragraph 16 of his affidavit, Mr Little said: "16. Release or review of the decision to deport is sought on the basis that -

(a) the delegate of the Minister did not observe the procedures that were required by law to be observed in connection with the making of the decision in that while the delegate knew or ought to have known that the applicant had a solicitor acting for him the delegate did not afford the applicant through his solicitor an opportunity to make a submission relating to deportation and subsequently the applicant has been refused reasonable time and opportunity to make such a submission for a reconsideration of the decision to deport,

(b) that the failure is unfair and a denial of natural justice."

On 16 November 1983 Mr Kavanagh informed Mr Little that it was proposed to deport the applicant at about 12.00 noon on Thursday, 17 November 1983.

On 17 November 1983 Mr Little telephoned Mr Kavanagh and unsuccessfully sought to have the execution of the deportation order postponed to enable him "to put a properly prepared submission to the Minister or his delegate". No submission has since been put to the Minister or his delegate. On the same day the application presently before the court was filed and a judge of this court ordered that "until further order proceedings under the deportation order made in respect of the applicant on or about 31 October 1983 be stayed."

The applicant is still in custody.

In his Statement of Reasons dated 1 December 1983 the Regional Director of the Department said:

"I, WAYNE JULIAN GIBBONS, Regional Director, Victorian Regional Office and Delegate of the Minister for Immigration and Ethnic Affairs, having received notice dated 2 November 1983 from Mr John Little, Solicitor, requesting a statement of reasons for my decision of 31 October 1983 made pursuant to section 18 of the Migration Act 1958 ('the Act') to order the deportation of JOHN COLE ('the applicant') make the following statement setting out the findings on material questions of fact referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

MY FINDINGS ON MATERIAL QUESTIONS OF FACT

2 The applicant was born in Freetown, Sierra Leone on 16 April 1955 and is a citizen of Sierra Leone.

3 The applicant was employed as an Assistant Steward on a ship owned by Blue Funnel Lines. In August 1979, while that ship was in Sydney, the applicant left the ship and did not return before it departed Australia.

4 The applicant entered Australia not being the holder of an entry permit that was in force. He has not held and does not currently hold an entry permit which is in force.

5 The applicant was not granted written authorisation by an authorised officer for the purposes of the Act to engage in employment in Australia.

6 The applicant was apprehended at his place of employment, Fastdye Pty Ltd, on 24 October 1983, was interviewed, made aware of the policy relating to prohibited immigrants and invited to make written submissions to the Department in respect of his personal circumstances.

7 At interview on 27 October 1983, the applicant stated that -

(a) he had lived mainly in Melbourne since his arrival in Australia;

(b) he had undertaken casual employment in Australia as a packer and a cleaner;

(c) he had no romantic attachments in Australia. He had a girlfriend of 5 months standing who he had not seen for 2 months prior to his apprehension on 24 October 1983;

(d) he did not mean to desert his ship, but was on shore leave, went to a disco, met a girl with whom he went home, was intoxicated and slept past the time when the ship left Australia;

(e) he wished to remain in Australia and join the Australian Army or Police Force as his opportunities are better here than they would be in Sierra Leone.

In the absence of any contrary information provided by the Department I accepted these assertions as true for the purposes of my decision.

EVIDENCE OR OTHER MATERIAL ON WHICH MY FINDINGS ARE BASED

8 In making the above findings, the following material was before me -

(a) a Deportation Case summary prepared by J. Rees;

(b) a written statement signed by the applicant on 31 October 1983 at the Immigration Detention Centre, Melbourne;

(c) a record of interview between the applicant and J. Rees, dated 27 October 1983;

(d) a summary of policy of deportation of prohibited immigrants as set out in Chapter 3 of the Residence Control Manual which included, inter alia, -

(i) it is in the public interest to ensure that persons abide by normal immigration selection procedures and do not queue-jump by entering or remaining illegally in Australia to the prejudice of prospective migrants who abide by the procedures;

(ii) the presence of such queue-jumpers is inimical to the government control of migration programs as well as impacting upon job availability for legal residents;

(iii) prohibited immigrants who do not leave voluntarily should expect to face the prospect of deportation when located.

THE REASONS FOR MY DECISION

9 The applicant is a prohibited immigrant under sub-section 6(1) of the Act as he was an immigrant who, at the time he entered Australia, was not the holder of an entry permit in force.

10 The applicant does not fulfill one or more of the conditions of section 6A of the Act for the grant of a permanent entry permit.

11 While I accepted that it was possible to regularise the applicant's continued presence in Australia by the grant to him of a temporary entry permit, I was satisfied that such a grant would be inappropriate having regard to the circumstances of the applicant, in particular, the fact that he arrived in Australia illegally, thereby committing an offence under section 27(1)(a) of the Act, and has worked in Australia without the written permission of an authorised officer, as required by section 31B(2) of the Act (also thus committing an offence).

12 While a permanent entry permit may not be granted to the applicant after his entry into Australia by reason of section 6A of the Act, I accepted that it was possible to grant a temporary entry permit to the applicant for the purpose of allowing consideration of an application for the grant of a permanent entry permit on the basis that the conditions of section 6A(1)(e) of the Act are fulfilled. Accordingly, I considered whether there were strong compassionate or humanitarian grounds for the grant of a permanent entry permit to him.

13 Apart from his desire to remain in Australia to join the Australian Army or the Police Force and his belief that his opportunities are better here than in Sierra Leone, the applicant did not advance any other personal circumstances relevant to the exercise of my discretion under section 18 of the Act. I decided that the above factors do not amount to strong compassionate or humanitarian circumstances warranting the grant of a permanent entry permit to the applicant.

14 Having regard to all of the circumstances of the case, I decided that the expulsion of the applicant from Australia was appropriate. I considered that the application of the stated policy set out at paragraph 8(d) above was appropriate and just. In all the circumstances I decided to order the deportation of the applicant."

The grounds of review set out in the application are:

"1. Breach of the rules of natural justice in deciding to make the deportation order in that the applicant was denied the opportunity to make a meaningful submission against the making of a deportation order.

2. The procedures that were required by law to be observed in connection with the making of the deportation order were not observed."

The applicant sought: "1. An order that the deportation order of the respondent be quashed or set aside,

2. An order directing the respondent to give further consideration to the matter subject to such directions as the Court thinks fit,

3. An order directing the respondent to refrain from deporting the applicant."

When the present hearing commenced on 2 December 1983 Mr Little, who appeared for the applicant, stated that he did not propose to rely upon any alleged breach of the rules of natural justice, but rather upon the contention that procedures that were required by law to be observed in connection with the making of the decision to deport were not observed (see s.5(1)(b) of the Judicial Review Act).

In his affidavit in support of the application Mr Little expressed this ground as being based upon the contention that, "while the delegate knew or ought to have known that the applicant had a solicitor acting for him the delegate did not afford the applicant through his solicitor an opportunity to make a submission relating to deportation and subsequently the applicant had been refused reasonable time and opportunity to make such a submission for a reconsideration of the decision to deport" (see para 16, quoted above).

In his closing address, Mr Little contended that where the delegate of the Minister knew, or ought to have known that the applicant had legal representation, he should "as a matter of proper procedure" have taken all reasonable steps to obtain a submission from his legal representative.

Mr Little cross examined the officer and put it to him that he had done everything possible to expedite the issue of the deportation order so as to be able to say, as he did, that no representations on behalf of the applicant had been received or were foreshadowed. This suggestion was denied by the officer, who said that the applicant had told him that Mr Little would not be acting for him until he had been detained for 7 days (being the period referred to in s. 38(3) of the Act), and then would act for him in respect of any applications made by the Department seeking authorization of the further dentention of the applicant in custody and not in relation to the issue or non-issue of a deportation order.

The applicant himself, when called by Mr Little, said that he did not say anything to the officer with regard to any solicitor.

I accept the evidence of the officer that there was a discussion in relation to Mr Little and that it took place in the terms to which deposed.

S. 5(1)(b) of the Judicial Review Act provides that a person who is aggrieved by a decision may apply to the Court for an order of review on the ground "that procedures that were required by law to be observed in connection with the making of the decision were not observed".

In my opinion, its language does not provide any support for the proposition here advanced on behalf of the applicant or for the making of any of the orders sought. It cannot be held that there was any procedure required by law to be so observed, which called upon the delegate of the Minister to take steps to obtain a submission from the applicant's solicitor, who had attended upon the applicant on 24 October and taken instructions from him and received further telephone calls from him on October 25, 26, 27, 28 and 31, and who had not made or foreshadowed any representations to the Department. It was for the solicitor to make a submission, if he wished to do so, not for the delegate to take steps to obtain one from him.

The Court orders:

1. that the application be dismissed, with costs,

2. that the stay granted on 17 November 1983 be terminated.