Commissioner of Taxation v Genys

[1987] FCA 20

CATCEWORDS ./-----

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I	Administrative Law -	Judicial Renew - Deportation of prohibited non-
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~ citizens - whether decision to deport before final determination of

I refugee status had been resolved constituted denial of natural justice -

whether decision to make a decision on deportation to disadvantage of

potential deportee while final determination of refugee status

outstanding unreasonable.

Administrative Decisions (Judicial Review) Act	1977: S. 5 .
Migration Act 1958: s s . 6A. 18

HUSSEINAH BANU, SrrzAZlIL ISLAM AND AJ3DUL RAHIM - V -

TBE HONOURABLE CHRISTOPHER	JOHN HURFORD
No. G3 of 1987

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I Einfeld J.

I ! Sydney

!	30 January 1987
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IN TEE FED- COURT OF AUSTRALIA 1 1

NEW SOUTH WALES DISTRICT mGISTRY	1	No. G3 of 1987
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GENERAL DIVISION	1

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BETWEEN: WSSEINAH BANU

First Applicant

SIRAZUL ISLAM

Second Applicant

ABDUL RAHIM

Third Applicant

AND: - THE HON. CHRISTOPHER HuRFoRD

Respondent

REASONS FOR JDDGMENT

EINFELD J. :

1. Introduction

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I	l	The first Applicant, Husseinah Banu, and her husband, the second
Applicant, Mohammed Sirazul Islam, arrived in Australia on 20 August
1985. Mr. Islam was given permission to stay here f o r three months
I	whereas MS Banu f o r some. reason was granted a six months stay. The
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I	expiry dates of their temporary entry permlts were respectively 21

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November 19 85 and 20 FE ?bruary 1986. The th ,ird Applicant, Abdul Rahim

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I (the son of MS Banu by a previous marriage and the stepson, therefore,

1	of Mr. Islam), arrived in Australia in February	1986 and was given	a one
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i	month temporary entry permit expiring on	2 4	March	1986.	On the
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I	respective expiry dates of the entry permits, all of these persons
i	became prohibited immigrants pursuant o sectlon 7(3) of the
i	I	Migration Act 1958 (“the Migration Act”) and thus became liable to
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I	I	deportation (section 18) in the unfettered discretion of the respondent
i	I	Minister. Their continuing residence in Australia after the expiry
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!	dates of their temporary entry permits were offences under the Migration
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I	Act. Nonetheless, they did remain in Australia until they were arrested
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I	on 21 November 1986. During the intervening period they all apparently
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engaged in employment, contrary to the terms of their entry permits, and
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thus committed further offences under the Migration Act (section 31B(1)).
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l	Following their arrest for these offences on 21 N vember 1986, they were
placed in custody at the Villawood Detention Centre. On 3 December 1986
(although the third Appllcant‘s application appears to bear no date) they made applications to be granted what is known as the status of
refugees. (Strictly, this is a reference to the power given to the
Minister by sectlon 6A(l)(c) of the Migration Act to grant permlssion to
non-citizens to stay in Australia after then entry by determining in
writing that they have the status of refugees as deflned by the
International Convention on this subject or a later Protocol to the
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Convention.)
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The consequence of their being granted refugee status would in normal

circumstances entitle them to the grant of entry permits unlmited in

time, amountlng to a right of permanent residence in Australia, at any

long as their refugees status continued. The factual starting point of their applications for the status of refugees was that whereas

rate so

Mr. Islam was a citizen of Bangladesh, MS Banu and Mr. Rahim were

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citizens of Singapore. The Applicants claim on the one hand that	Mr.
Islam is not entitled to residency of Singapore despite his being

married to a Singapore citizen. On the other hand, they say that

whereas MS Banu 1s apparently entitled to residency m Bangladesh as the

wlfe of a citizen of that country, her son Mr. Rahim is not entitled to

residency there on any basis. As the desire of the family to remain

together is at least one, if not the principal, basis of their desire to

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stay in Australia, they clam as a consequence that there is no country

other than Australia in which they can live as a family group. It should

be noted that Mr. Rahim is now 23 years old and that on the meagre

evidence available to me, the impediments to Mr. Islam's residency in

Singapore are not absolute although there may be a delay of several

weeks or longer in his obtaining permission to reside there.

On 9 December 1986 a committee established in the Department of

Immlgration and Ethnic Affairs ("the Department") for the determinatlon of refugee status applications, known as the DORS Committee, unanimously

decided to recommend the refusal of their applications. These

recommendations were accepted on 10 December by the Assistant Secretary of the Refugees and Humanitarlan Branch of the Department, apparently

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1 acting under delegation from the Minister. I was informed, and it was

not denied by the respondent Minister, that these decisions were made in

I	an extremely brief period of time, compared with the usual period in which such applications are considered. However unusual that may be, it
does not seem to be a good ground for relief here. It would be ironic
!	if it were otherwise, having in mind criticlsms of bureaucratic delays
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i	that abound in the community.
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In the days following the arrest of the Applicants, applications were
9	,	made to the Local Court at Fairfield to approve the continuing custody
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of the Applicants, so far as I can gather, because section 38(3A) of the
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I	Migratlon Act requires that such custody not extend beyond seven days
i	without the consent of a prescribed authority such as a Court in the
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absence of the consent of the detainee. It appears that when the matter
was before the Fairfield Local Court on 16 December 1986, the solicitor
for the Applicants applied on their behalf for their temporary release
pending what was described as "an appeal to the Minister" from the
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decisions to refuse them refugee status. The applications for temporary release were refused.
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I pause to observe that the Migration Act makes no reference to an
"appeal to the Minister" from accepted DORS Committee recommendations.
Indeed it makes no mention of the DORS Committee at all, although the
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Minlster has power under section 66D to delegate such matters.
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Subsection (3) of section 66D also provldes that a delegation under
s.66D does not prevent the exercise of power by the Minister. Whether
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because of section 66D(3) or because the terms of section 6A(l)(c)

provide for the determination of refugee status to be made by the

Minister by written instrument, or for some other reason of fairness or

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otherwise, I am informed that the current policy of the Department is to

l	permit a so-called "appeal" to the Minister personally against accepted
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DORS Committee recommendations.
In this case, the Applicants were advised that they were entitled to
seek this Ministerial review. Their solicitor advised the Secretary of
l	I	the DORS Committee that this entitlement would be exercised as soon as
the Committee's reasons were available, and the Secretary undertook provide the reasons. Presumably because it wished to take action to to
deport the Applicants promptly, the Enforcement Section of the
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I	Department asked that these leasons be prepared urgently, although
neither the Applicants nor their solicitor appear to have known of this
intervention. Section 13(2) of the Administrative Decisions
(Judicial Review) Act 1977 ("the ADJR Act") requires that they be
supplied within 28 days of a written request (apparently first made on
17 December 1986) but by the conclusion of the hearing of this matter on
January 13 1987, the reasons had not yet been supplied.
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The Department also advised the Applicants' solicitor on 12 December
1986 that deportation was then to be considered promptly but that
permission to leave voluntarily would also be considered by the
1	l	Department if desired by the Applicants. Nothing was said one way or th
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l	other as to whether the deportatlon or voluntary departure decision

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would be delayed pending the "appeal" to the Minister from the refugee

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i	status decision. The Appllcants' solicitor should not have assumed, as
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he apparently did, that at least the procedures of deportation decision-
!	making would be permitted to await the Ministerial review. However, as a
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I	decision to deport would effectively render nugatory the entitlement to this review, it is understandable that he might have thought the former would only follow the latter in fact, and that further submissions would have been permitted before the deportation orders were finally made.
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!	The Applicants' solicitor then wrote two letters to the Department on 17
December 1986, one to an officer named Wilson in the Enforcement Section
in Sydney, the second to the Assistant Director of the DORS Secretariat in Canberra. The second of these two letters was sent by facsunile. In the letter to Mr. Wilson, the Applicants' solicitor reported that the
Department's representative at the Fairfield Local Court n he previous
day (16 December) had advised the Court of the respondent Minister's
intentlon to make a deportation order against the Applicants on 17
December. The Applicants' solicitor indicated that his clients wished to
be heard on the issue as to whether a deportation order should be made
and Identified that there was 'pending' an "appeal to the Minister" against the decision to accept the DORS Committee's recommendation that
I	refugee status be refused.
In the letter sent by facsimile to Canberra, the solicitor requested a
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copy of the reasons for the DORS Committee's recommendation, asked for an explanation as to 'the unseemly haste' adopted by the DORS Committee

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in this case, and formally "appealed" to the Minister to review the

decisions. He said that he would supply detailed grounds of appeal and other supporting materials after the DORS Committee's reasons had been received and an explanation had been given as to the speed with which

the applications had been processed and determined.

No reply ever seems to have been sent by the Department to this letter

to Canberra, but in reply to the letter of 17 December to the

Enforcement Section in Sydney, Mr. Wilson on 18 December indicated that

pursuant to the provisions of section 38 of the Migration Act, he would

be putting the issue of the deportation of the Applicants to the

Minister's delegate in Canberra on 22 December 1986. Acknowledging the

Applicants' solicitor's request to be permitted to put submissions in

relation to the deportation, he placed a time llmit of 12 noon on that

date for the receipt of such submissions.

I am advised that Mr. Wilson's letter of 18 December was received by the

Applicants' solicitor late on that day (Thursday), leavmg an effective

period of only one and a half working days for the submissions to be

prepared and delivered. The matter was further complicated by the long-

standing arrangement of the Applicants' solicitor (a sole practitioner)

to travel overseas at 7 pm on Friday 19 December. By letter to Mr.

Wllson dated and apparently delivered to him on 19 December, the

Applicants' solicitor advised the Department that because of his pending

departure for

overseas and his need to obtain information from other organisations and persons to support the Applicants' "appeal" to the

Minister, it would not be possible for him to deliver his submissions by

the deadline set. Saying that hls office would re-open, presumably with

his presence, on Monday, 5 January 1987, he proposed an alternative

deadline of Friday, 9 January 1987, somewhat breathlessly concluding,

perhaps more in hope than in confidence or expectation:

"Finally, we trust that your department will not

proceed to take advantage of the current Christmas

vacation period and the writer's departure Isicl two

week departure from the country and execute

deportation orders against detainees who have formally

notified you of their wish to be heard in their

defence before any such deportation orders are made."

The Applicants' solicitor departed on his overseas journey as scheduled.

In his absence, the Applicants were interviewed personally on 22

December at Villawood Detention Centre by Departmental officers and were

informed that their deportation was to be put before the Minister's

delegate that day. Departmental documents received in evldence by

consent reveal that the Applicants declined an invitation to place

further material before the delegate saying that they had nothing to add

to that which had been earlier advanced. The indications in the material

before me are that th2s interview took place without an interpreter to

assist the Applicants, especially the first Applicant who apparently

speaks and understands English with difficulty. Nor is there any

indication that the applicants were asked if they wished to have another

lawyer present at the interview in the absence of their solicitor

overseas, or if they consented to be interviewed without either a lawy

or an interpreter. Their solicitor was certainly not informed before his

departure that he should arrange for other representation for the

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Applicants during his absence (although I	believe he should have done
s o ) .

These persons were legally represented; they had chosen this means of

!	placing their concerns, attitudes and intentions before the Department.
,	A n interpreter had been used in previous contact with them. This
"interview" on 22 December should not have taken place in these
unsatisfactory circumstances. That it did seems to me to indicate the Department's unease and doubts about following the course of action on which it was apparently bent. Considering that the Department knew the
Applicants' solicitor was again to be in Australia from 5 January 1987
and that it did not attempt to deport the Applicants until 6 January,
the "interview" of 22 December 1986 was qulte unnecessary. It could only
have served, however unintentionally, to cause further stress and upset to three people whom it might be reasonable to assume were vulnerable and lonely.
In the event, deportation orders were slgned against all three
Applicants on 22 December 1986 and the concession of a supervised
voluntary departure was refused. On 6 January 1987 (apparently the
proposed date of their deportation), the current application for revlew
1	of both the deportations and the refusals of refugee status was filed.
I	An application for a stay of the ! deportation orders was made before Mr.
Justice Beaumont at 10.45 am on that day. After hearlng submissions
from the legal representatives of'the parties for about 20 minutes, his
Eonour made an order that the deportation orders be stayed until further

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i	order of the Court and stood the matter over to	12 January	1987	for
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final hearing. His Honmr also gave a number of procedural directions

1 to enable the matter to be ready for that hearing.

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It appears that at the very time application was being made to Mr.
l	Justice Beaumont for these orders on behalf of l three Applicants, the
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i	third Applicant Mr. Rahim was being or had actually been deported from
I	Australia. The Applicants' solicitor informed me that this was known t
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!	him at the tune the matter was before his Honour, yet it was not drawn
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to his Honour's attention. As a consequence, Mr. Justice Beaumont was
1	persuaded to order a stay of deportation of Mr. Rahim which was
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entirely futile. Why the Department singled out Mr. Rahim for
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deportation has not been explained.
When I asked how thIs situation could have been allowed to occur, and
his Honour misled in this way, I was advised that
(a) the solicitor for the respondent Ministe>r was not Instructed by

the Department that the third Applicant had been deported until

the hearing before Beaumont J. had concluded;

the proceedings before his Honour had been very short and no

opportunity had been available to the Applicants' solicitor to

advise his Honour of the facts;

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I (C) the legal representatives of the parties discussed the matter

! outside the Court after his Honour had made his orders but

decided not to go back into the Court and inform his Honour of

the factual situation.

I	I sought and have read the transcript before Mr. Justice Beaumont.	Not
only, as would be expected, was there ample opportunity to tell his
I	Honour the facts (assuming that the facts were not known when the

affidavit in support of the applications, not distinguishing the

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situation of Mr. Rahim, was sworn); his Honour was told that if he did

not stay the orders, all Applicants would be deported a few hours later

I	that day. When it is recalled that part of these Applicants' claim to
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remain in Australia is so that the three of them could remain together,
I	it becomes clear that these "explanations" are wholly untenable.
The failure to inform his Eonour of the facts was at least improper and
I	should not have been allowed to occur. M r . Rahim's deportation emerged
only incidentally before me; it was not opened at the beginning of the
hearlng that there was no purpose in considerlng an application that
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Mr. Rahim's deportation order be reviewed. In an effort to rescue
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something from the mire of judicial criticism, an application was made
i	on Mr. Rahim's behalf, virtually at the conclusion of the proceedings, for an order that the respondent Minlster take the necessary steps to
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bring Mr. Rahim back from Singapore. This application, which was not in
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!	the form of any formal amendment to the application for review, was
based upon a decision of Wilcox J. in Azemoudeh & Anor. v Minister for
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Immigration and Ethnic Affairs & Anor. (1985) 8 ALD 281 to which I drew

attention during the hearing. I shall deal with this application later.

Meanwhile, I shall treat these matters as identical applications by all three Applicants.

2. The Relevant Law

The Applicants bring their applications pursuant to section 5(1) of the

ADJR Act, seeking review of the deportation orders and the refusal of

refugee status. No evidence was brought in support of the applications

in relation to the latter determinations, and they were not argued,	so I
shall not pass judgment on them. They base their claims against the

deportation orders on two sub-paragraphs of section 5(1), namely:

(i) that there was a breach of the rules of natural justice In connection with the making of the decision to deport (section

5(l)(a)); and

(ii 1 that the making of the decision to deport was an improper

exercise of the powers given by the Migration Act (section

5(1) (e) 1 .

. Section 5(2) of the ADJR Act provides what are in effect particulars of

the matters that can be raised under section 5(l)(e). In this case, two

sub-paragraphs of section 5(2) were relled upon, namely:

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(i) that there was an exercise of a discretionary power in bad

faith (section 5(2)(d)); and

(ii) that the power was exercised so unreasonably that no reasonable

person could have exerclsed the power in that way (section

5(2) ( g ) 1 .

The question of the applicability of natural justice to judicial review

of admlnistrative decisions made under the Migration Act has been the

subject of much judicial discussion over recent years. That certain

natural justice in the sense of procedural fairness must be granted in

the exercise of the power to deport under section 18 of the Migration

Act now seems to have been definitively declared by the High Court in

Kioa & Ors. v West & Anor. (1985) 6 0 ALJR 113. At p.127 Mason J. said:

"...the expression 'procedural fairness' more aptly

conveys the notion of a flexible obligation to adopt

fair procedures which are approprlate and adapted to

the circumstances of the particular case. The

statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the llght of the statutory

requirements, the interests of the individual and

the interests and purposes, whether public or

private, whlch the statute seeks to advance or

protect o r permits to be taken into account as W

legitimate considerations .._

At p.128 hls Honour said:

n . _ . in general, It will be a matter of determining

.what the duty to act fairly requires in the way of

procedural fairness in the circumstances of the

case - "

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i In considering what is involved in terms of procedural fairness when the

discretionary power to deport under section 18 of the Migration Act is

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being exercised, Mason J. said at p.128 (the underlining is mine):

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"It would be going too far to say that fairness

requires that in all cases in which a deportation

order is to be made notice should be given to the

prohibited immigrant of the intention to make such

an order and of the grounds upon which it is to be

made. The Migration Act plainly contemplates that

in the ordinary course of events a deportation order

will be made ex parte. And the prohibited immigrant

may be a person who, intent upon remaining in

Australia without lawful right or title, has evaded

l the authorities and will continue to do so. He may

even be a person who has been required under s.31A

to leave but has declined to do so. To insist that

he be notified of the intention to make a

deportation order would serve only to facilitate

evasion and frustrate the objects of the statute.

These considerations indicate that, in the case

where the reason for the makmg of the order is that

the person concerned is a prohibited immigrant, the

dictates of natural justice and fairness do not

require the givlng of any advance notice of the

proposed making of the order ...

But it may be otherwise where the reasons for the making of the order travel beyond the fact that the

person concerned is a prohibited immigrant and those

reasons are personal to him, as, f o r example, where

they relate to his conduct, health, or associations.

And if the order is made in consequence of a refusal

to grant a further entry permit t o him, the reasons

on which that refusal is based may require that as a

matter of fairness the person affected should have

the chance of responding to them.

However, this is not to say that fairness will

necessarily, or even generally, require that an

applicant for a further entry permit be given an

opportunity to be heard even where deportation may

of granting or refusing entny permits there is no	follow from its refusal ..... In the ordinary course
occasion for the principles of natural justice to be called into play. The applicant is entitled to
support his application by such information and
material as he thinks appropriate and he cannot

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complain if the authorities reject his application

i	because they do not accept, without further notice
to him, what he puts forward. But if in fact the
decision maker intends to reject the application by
!	reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the
applicant in his application, there may be a case
for saying that procedural fairness requires that he be given an opportunity of responding to the matter:
In re H.K.(An Infant) L19671 2 QB 617. If the
application is for a further temporary entry pennlt
and it is made in circumstances which are relevantly
similar to those in which the earlier permit was
granted, the applicant may have a legitimate
expectation that the further entry permit will be
!	granted or will not be refused in the absence of an opportunity to deal with the grounds on which it is to be refused. And if the refusal is to be attended by the making of a deportation order, the case for holding that procedural fairness requires that such an opportunity be given is unquestionably stronger."

It was submitted here that the Applicants were entitled to be heard on

the question of their deportation and that	in substance they were not
heard by reason of three matters:

1. that the DORS Committee decision was so unreasonably quick that

inadequate opportunity was available to provide material in

support of the Applicants' case for refugee status;

2. that the deadline for submissions of 12.00 noon on 22 December

1986 (of which notification was received late on 1 8 December)

allowed an unreasonably short period by any standard and a limit

that was objectively impossible to keep in this case by reason

of the solicitor's pending journey overseas;

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I 3. that there should be no deportation pending the "appeals" to the

Minister against he delegate's acceptance of the DORS

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Committee's recommendations and that those "appeals" could not go forward in substantive form until the reasons for the DORS Committee's recommendations were available.

I In Sezdirmezoglu & Anor. v Acting Minister for Immigration & Ethnic

i	Affairs (No.2) (1983) 51 AIR 575 at 577, Smithers J. said that the
i	I	discretion to deport "must be exercised according to law one provision
I	of which is that the Minister must consider all circumstances relevant
to the position of the person with whose desire to remain in Australia
he is concerned ... The duty, however, is no more than a duty to take all
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i	relevant considerations concerning the prohibited immigrant in relation
to the interests of Australia into account." In Minister for
Immigration & Ethnic Affairs v Tagle (1983) 48 ALR 5 6 6 , the Full Court
of this Court held that the delegate was under a duty when exercising
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the power to deport to take into account all relevant considerations. It is submitted here that the delegate could not possibly consider this
matter fairly, or fully, taking into account all relevant
considerations, without the Minister's decision on the issue of refugee
status. It is said that at least one central fact has been denied to the delegate who was determining the deportation question which was clearly
relevant to that question. As I have previously observed, it is obvious
that i€ a person is granted refugee status and as a result obtains an
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I	entry permit by reason of the provisions of section 6A(l)(c), he or she
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I	is unlikely to be deported.
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I note in passing that section 6A(l)(c) is dependent upon the applicant

for refugee status being the holder of a current temporary entry permit

and that a person who is a prohibited non-citizen by reason of the fact

that a previous temporary entry permit had explred or been cancelled

could in theory not even be considered for refugee status. However, in

the case summary prepared by an officer of the Department for the

consideration of the delegate, which is in evidence, it was pointed out

that the delegate determining whether a person should be granted an

entry permit under section 6A also has the power to grant a temporary

entry permit to allow that determination to be made. In other words,

if the delegate decides that the person is entitled to reside here, the

temporary entry permit	may be granted to allow the decision to take
effect .

There is no doubt from the decisions to which I have made reference and

several others since Kioa which have given effect to its tems,that a

visitor to Australia who is opposing deportation will normally be

entitled to be heard and given the opportunity to make submissions on

the deportation. However, in Sinnathamby v The Minister for Immigration

& Ethnic Affairs, (1986) 66 ALR 502 per Fox J. at 506, it was observed

that the effect of - Kioa was that while the Minister was obliged to

accord natural justice, the extent of the requirement is governed by the

circumstances of a particular case.

3. Natural Justice

I am not persuaded that natural justice was not afforded to the

Applicants in terms of an opportunity to be heard on their deportation

prior to the orders of 22 December 1986. It is true that "appeals" to

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the Minister were intimated immediately after the DORS Committee's

recommendations were accepted, were again indicated in the Applicants'

solicitor's letter to Mr. Wilson of 17 December 1986, and formally

"lodged" in his letter to the Canberra Office of the Department on 17

December 1986. It 1 s also true that the reasons for the DORS Committee

recommendations had been sought immediately and were promlsed and

awaited. But even if it be accepted that the DORS Committee's

recommendations and the ensuing decisions were made with unexpected

expedition, there were some ten days after their notification to the

Applicants for submissions relating to the then foreshadowed

deportations to have been made.

1 I also cannot see that a legitimate complaint can be mounted that the

relevant natural justice was not accorded to the Applicants to make

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i	submissions in relation to the deportation orders by reason of the fact that the Applicants' solicitor was intending to depart for overseas.
This seems to be so even though as a result of this departure, a formal
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time limlt of some one and a half working days plus two weekend days was
effectively reduced to one working day so far as he personally was
concerned. From the time they were notified (on 12 December 1986) of
the delegate's acceptance of the adverse recommendations of the DORS
!	Committee (on 9 December 1986), even to the evening of 19 December 1986
when their solicitor left the country, there clearly was ample
opportunity for the Applicants to place before the delegate ll matters
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I	they wlshed to have considered. One of them, VIZ. that no decision
should he made until the Ministerial review of the DORS recommendations,
was put and on the evldence before me taken into consideration by the
j	delegate. Further, if there were in truth additional submissions to be
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made, the Applicants' solicitor could and should have made alternative
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arrangements for this case as all absent sole practitioners presumably

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do for all matters that will or may arise during their absence. Although

for the reasons previously given, I believe that the circumstances of the interview at Villawood on 22 December 1986 di'a not represent a further real opportunity to make submissions, the earlier opportunities

to be heard appear to me to be adequate to fulfil the criteria laid down

by Mr. Justice Mason in Kioa. -

However, in my opinion, the situation is different when consideration is

consequences flowing from the lodglng of the so-called "appeals" to the Minister from the delegate's endorsement of the DORS

given to the

Committee's refusal to recommend refugee status to the Applicants.

Before the making of the deportation orders against the Applicants on 22

December 1986, the Department and the delegate were fully aware of the

Applicants' wish to pursue their entitlement to a Minlsterial review of

the DORS Committee's adverse recommendations. Because the DORS

Committee's reasons had not yet been supplied to the Applicants or their

solxcitor, the delegate therefore also knew that the substance of the

"appeal" and the nature of the evidence that the Applicants could or

would be able to advance in its support had not been formulated. In

addition, the fact that the reasons were promised in accordance with the

Applicants' statutory expectation that the Ministerial review would take place before the entitlement may have raised the legitimate

deportations were finally decided (see F.A.I. Insurances Ltd. v Winneke

(1982) 151 CLR 342 at 360 per Mason J.; Minister for Immigration &

Ethnic Affairs v Ha]-Ismail (1981-2) 40 ALR 341 per Davies J. at 357-8,

followed by Beaumont J. in Arslan v Durrell (1982-3) 48 ALR 577 at 592)

and that further submissions would then	be permitted on the deportation
question.

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i	The possibility that all of these potential deportees may be refugees is
I	in my view, certainly "personal" matter over and above their status as
I I
I	prohiblted non-citizens on which they were entitled to but did not have
i	the opportunity of making submissions when their deportations were under
i	consideration (see Kioa supra at 128). Because the deportatlon
considerations are so fundamentally affected by the possibility of their
l	1	refugee status, I am of the opinion that no fair decision on the
deportations could.be made here without the outcome of the Ministerial
I	I

I review being awaited and known, and further submissions permitted

I thereafter.

The solicitor representing the Minister in these proceedings tendered,

and I received into evldence without objection, the Convention and

Protocol on refugees referred to in section 6A(l)(c) of the Migration

Act. It was submitted by him that the Applicants could not possibly	be
defined as persons having any of the characteristics which those

instruments set out as necessary for the classification or

categorisation of persons as refugees. Admittedly, this evidence was

said to go to the Issue of discretion. On any issue, however, it is not

for me even to attempt to decide, stlll less conclusively determine,

whether these Applicants could or could not be treated as refugees under

those international instruments.

l

I have very little information before me as to the appropriate

!

characteristics of the Applicants or, for that matter, of Singapore and

I Bangladesh as alternative possible countries of residence for these

I	applicants. I do agree that on the scanty material available together
i	with my own experience of the operation of the Convention and Protocol,
I
i	and my knowledge of those two countries, there is little to suggest that
any one of these Applicants would qualify as a refugee. However, it has

- 21 -

always been part of the Applicants' wish, in relation to the Ministerial

!	review of the refusal of refugee status, to be permitted to bring additional evidence, including "from refugee and women's organisations"
I	(see Annexures C and D to exhibit A in the proceedings). I have no idea
I	what that evidence might be. In any event, it is also not for me to
anticipate the decision of the Minister in this regard or to make the
decision on his behalf. It will suffice to say that on the evidence before me, the possibility that these persons could be refugees entitled
i	to the exercise of a Ministerial determination pursuant to section
6A(l)(c) of the Migration Act is not so remote and absurd as to render their proposed "appeals" without any arguable substance at all.
I	It was also submitted on behalf of the Minister that not to await his
I
I	decision in relation to the "appeals" is not a demand of natural lustice
I	because it is not a refusal to give a hearing. It was suggested that if
!
it had any classification at all under ADJR Act principles, it would be
I
that not to await a decision was unreasonable rather than a refusal of
procedural fairness. I reject that submission although the failure to
wait may be in both categories for the reasons discussed later. In my
view, the failure of the delegate to wait for the decislon of the
Minister was to fail to permit the Applicants to place every
consideration before him/her relevant to the deportation.
!	Not to delay in making the decision and permit the Applicants the
I	opportunity of pursuing their "appeals" and then of placing additional
material before the delegate following upon the determination of the
I	I
"appeals", renders the concept of personal review by the Minister a
I
I .
nongense. The entitlement to the "appeal" would be an entitlement in
1
form but not in substance. The time and effort taken to compile the
reasons for the DORS Committees recommendatlon would e+fectively have

- 22 -

been an entire waste of resources, both human and financial, whatever

theoretical rights might have persisted when the Applicants were out of

Australia. It is surely not possible to accept that the formulation of

Mason J. in - Kioa, reversing or substantially modifying as it did in the

light of legislative change, the effect of at least two previous

decisions of the High Court on this subject (namely, Salemi v MacKellar

(~0.2)(1977) 137 CLR 396; -- R v MacKellar; ex parte Ratu (1977) 137 CLR

461) could have envisaged such a bizarre and extraordinary result.

Further, having regard to the offer of the Applicants' solicitor to have

final submissions on the deportation with the Department by 9 January

1987 and to the 28 day limit for the supply of the reasons for a

decision taken on 10 December 1986 (although not actually requested in

writing until 17 December), this delay could not have been long.

Considering that actual deportation was not attempted until 6 January

and that the Applicants had been in Australia for so long, no feasible

argument emerges that the grant of this opportunity would have wrought

hardship or disadvantage to the respondent Minister.

My attention was drawn by the Minister's solicitor to a submission to

his superiors on 22 December 1986 by the same Mr. Wilson referred to

earlier. This was provided on the same day as, perhaps only minutes

prior to, the making of the deportation orders (Annexure M to Exhibit

1). In this document Mr. Wilson reveals that he sought advice from the

Department's legal branch as to the legality of the proposed deportation

orders in the light of the Applicants' solicitor's letter of 17 December

1986 to Canberra "lodging the appeal" from the DORS Committee and asking

for delay. The legal advice given to Mr. Wilson was said to be "...that

there was no legal impediment to [the making of the deportation orders)

but it might not be viewed kindly by the Federal Court."

I

- 23 -

I I

1	I	Assuming that this is	a layman's narrative summary of the legal advice
!

(surely a reasonable assumption in view of the absence of any particular

i

I

l

I	earmarks of a definitive statement of law by	a lawyer), it seems to be
I

i	properly interpreted as a gentle suggestion by the legal adviser that
I
while there was no statutory bar to the issue of deportation orders
i
l	under the Migration Act in these circumstances, the administration and
1
interpretation of the ADJR Act by the Federal Court in the name of
I
\	reasonableness, procedural fairness or natural justlce may very well
!	upset any orders made.
i
i	l
i
i	I agree, with respect, with the spirit and purport of that advice. A
delay in the depoxtation orders until the Minister had reviewed the
I	Applicants' possible status as refugees would have permitted the taking
into consideration by the delegate of the outcome of that review and
permitted the Applicants to make further submissions in the light of the
Minister's determination. Even if the Minister had decided to reaffirm the delegate's acceptance of the WRS Committee's recommendations, the material that had become available on the review might have permitted the bringing into account of new matters relevant to deportation, for
example as
to the existence of "strong compassionate or humanltarian grounds" for their continued stay in Australia (section 6A(l)(e)). To
deny the Applicants this opportunity was in my view to deny them
I	relevant natural justice within Kioa - principles.
i
I

- 24 -

!

I

4 . Bad F ith

!	The next submission	on behalf of the Applicants was that the decision-
I

maker improperly exercised his power by displaying bad faith. The basis

for this assertion was said to be the delegate's proceeding with the

deportation orders notwithstanding the Applicants' solicitor's overseas

I	journey. This submission is without foundation. Order	54 Rule 2(2) of
I

! the Federal Court Rules requires that if bad faith i s to be alleged in

proceedings in this Court, particulars must be given. No particulars

1 were given in this case, although no reference was made to the Rule nor was any complaint was made on behalf of the Minister at the failure to

supply the required particulars. No authority was quoted in support of

the contention that the refusal by A to adopt a timetable supplied by B

for the carrying out of A's statutory powers' especially because of an

overseas ~ourney undertaken by B at or before the Christmas vacation period, would represent bad faith. Indeed, no satisfactory explanation was advanced as to why the matter was not left in the hands o€ another solicitor or counsel other than to state that it is difficult to find

solicitors experienced in these matters, and impossible to find counsel

in any type of matter, at that time of the year. That "explanation",

like the submisslon, is completely without merit.

5. Improper Exercise of Power

A further submission on behalf of the Applicants was that the decision

to deport was an improper exercise of the power to deport because it was

I intrinsically unreasonable in that no reasonable person could have made

I

- 25 -

that decision on the material available (see section 5(2)(g) of the ADJR

Act). In Conyngham & Ors. v Minister for Immigratior, & Ethnic Affairs

(unreported, 17 July 1986) Wilcox J. said on page 23 (without incurring

any dissenting comment on appeal	- Full	Court, unreported,	25	July
1986) :

"Before a decision may relevantly be stigmatised as

'unreasonable', it must be possible to say that it

is a decision 'that, looked at objectively', is 'so

devoid of plausible justification that no reasonable

body of persons could have reached' it: see per Lord

Diplock in Bromley London Borough City Council v

Greater London Council (1983) 1 AC 768 at 821.

It was submittel d that this was such a decision. It was said that

because the matter was "rushed through very quickly in Canberra" and of

the other factors to which I ave earlier made reference, no submissions

were possible. I do not accept this submission. Nor do I believe that

it is truly a submission of unreasonableness. As I have said before,

this was not a speedy deportation at all. The Applicants were arrested

on 21 November 1986 when their imminent deportation must undoubtedly

have been expected. They were notified on 12 December 1986 that an

adverse decision had been made two days previously as to their refugee

status following the DORS Committee's recommendations. It was then clear

that their deportations were again under consideration. On 18 December

1986 their solicitor was lnvited to make further submissions but for the

reasons given he was unable to do so. This is not by any standards an

unreasonable timetable	f o r the demands of natural lustice	in a matter of
this nature.

-

i

!

#

l *, - 26 -

i I	It was even suhmltted on behalf	of the Minister that	I should take into
i
I
I

account the fact that almost a month had elapsed between the date of he

I

I

deportation orders and the end of the hearing of these applications. I

do not think this approach should be adopted, especially since the stay

i	of the deportation orders was granted by	Mr. Justice Beaumont on	6
i

l	January	1987. While this case was being prepared and conducted, and
I
I

whilst I the Department 'was' under a' Court order not to deport the

Applicants, it does not seem that the Department can obtain any benefit

I	from the additional time that has elapsed.	Nor could it be expected that
I

the Applicants could make the further submissions and submlt the further

!	evidence their solicitor had foreshadowed when they had still not been
supplied with the reasons for the DORS Committee's recommendations and
as a result they had not had the Minister's review of the decision which endorsed them.
However, none of these submissions seem to me to relate to the
unreasonableness or impropriety of the decisions to deport. I find It
difficult to categorlse these decisions as "entirely devoid of plausible
justification"; still less as decisions that "no reasonable body of
persons could have reached". The error that has been made here is strictly one of law and not that the declslons under conslderation were
entirely insupportable on their facts.
I
As I indicated earlier, the only possible "unreasonableness" I can see
!
!	is the decision to make the deportation orders on 22 December 1986. I
l
I	have not been able to find any authority as to whether this type of
I
"unreasonableness" is within section 5(2)[g) of the ADJR Act - that is,
i	whether a decision to make a decision and to make it on a particular
I	i
l	date in the knowledge that this would or might procedurally disadvantage
!
a potential deportee is or could be an improper exercise of the power to
I

l i

- 27 - * .

deport. In the absence of authorlty, I should be lncllned to say that

the statute should be so xnterpreted and that these declsions in this

case infringe the subsection as they ar such that no reashable person

I

!	(such as Mr. Wilson’s legal adviser) would have made them. However,	in
I

the light of my earlier conclusions, it is not necessary to decide the

I

matter flnally here

I

6. Discretion

I

~

I Eaving found therefore that ground a exists f o r the Court’s

j	intervention, the questlon next arises as to whether the Court should
exercise the discretion granted to It under the ADJR Act for the
granting of orders of review. A number of matters were submitted under
this heading f o r the Applicants, including that this was a case
involving preservation of a family unit, that the evidence Identified some factual errors on the part of the Departmental officers prlor to the making of the deportatlon order, that no reasonable opportunity had
been granted to make the submisslons, and that even if bad faith as a
matter of law was not established, there had been a lack of good faith shown by the Department. For his part the Minister submitted that Mr.
Rahim was 23 years old and that in any case the break-up of the family
1
unlt had been considered by the delegate. It was further submrtted that
I	the Applicants had ample time and access to legal advlce and that any
1
i	factual errors made by the Department did not amount to legal error. As
1	I have earlier said, the respondent also submitted that these Applicants
could not possibly qualify as refugees.

- 2 8 -

I was not particularly assisted by these submissions. It seems to me

1 I

I	that It will	be a comparatively rare and otherwise hopeless case when	a
l
I	I

person is denied a substantive right to procedural fairness by a

I

significant breach of the standards required, that the discretion to

I

intervene should not be exercised. I have already pointed out that the

Department granted a right to have the acceptance of the DORS

Committee's recommendations decision reviewed by the Minister. In this particular case, the Department was at all relevant tunes presumably (or

hopefully) working on the preparation of reasons to be furnished to the

i I

i	Applicants so that their submissions to the Minister could be sensibly
!
I	framed. The effect of the granting of the refugee status would mean in reality that they would not be deported, at any rate not for the time being. Even if they are not granted refugee status, material may very
well emerge in the course of its consideration which would permit their
I	making application for and being granted permission to stay in Australia
i	on other grounds permitted by section 6A(1).
I
I
These are real and substantive rights. The Department's Enforcement
I
I	Section did receive legal advice that amounted to a statement that lf
I
I	they went ahead notwithstandlng the fact that the DORS recommendations
had not been reviewed, this Court might intervene under the ADJR Act. If
their applications are as meritless as the Minister's representative
!	before me contends, the time involved could only have been slight and
the decisions to refuse refugee status could not have been reversed by
the Minister. The delegate's unwillingness or refusal to grant these
Applicants an adequate degree of natural justice was thus not based on
inadvertance or unimportant factual error, nor was it of little or no
I	substance. In my oplnion therefore, I should in principle exerclse my discretion in favour of the Applicants.
I
I

I

I

9

! - 29 -

This ralses, finally, the special situation of the already deported MI

Rahim. If Mr. Justice Beaumont had been informed on 6 January 1987, as

his Honour most certainly should have been, that Mr. Rahim had already

been deported, there could and would have been no stay of his

deportation order. Indeed, an entirely different application would have

had to be made to his Honour than the one actually made and his Honour

may have dealt with it in a completely different way. Although as I

have found, Mr. Rahim, like the other two Applicants, has been denied

procedural fairness in the making of the deportation order against him,

different issues arise as a matter of discretion. For here not only am

I being asked to quash the deportation order but to direct the

respondent Minister to arrange for Mr. Rahim's return to Australia.

I have given careful consideration to the reasons for judgment of Mr.

Justice Wilcox in Azemoudeh (supra) but do not think that this is a case

in any way analogous to that whlch there prompted his Honour to order

the return of a deported person. Mr. Rahim is a Singapore citizen who

has been deported to his home country. He is 23 years of age. His

father and some siblings live in Singapore, although I understand he has

had little contact with them over recent years. He may in f ct be truly

part of the family unit of his mother and step-father, but I know little

of their relatlonship, domestic or occupational. On the other hand,

Singapore can not reasonably be regarded as a country which on the

evidence before me is likely to subject its citizen, Mr. Rahim, to such

adverse treatment as would permit him to be classified a refugee or

successfully to invoke section 6A(l)(e) of the Migratlon Act. If his

mother and step-father in Australia are refused permission to reside in

Australia in due course, there is seemingly nothing that could be

advanced on behalf of Mr. Rahim of which I am aware that could make It

remotely likely that he wquld be granted permission to l ve in Australia

- 30 -

I alone. Nor on the evidence would he wish to. If, however, the parents

1	are permitted to reside	in Australia, the quashing of his deportation
I

order should remove a major barrier to his visiting the other Applicants

i I

here and/or making due application to join them in this country as a

resident, if he wishes to do so.

i

I

i	7.	Orders
I
i

I therefore make the following orders:

i	I
I	I

I	1.	that the deportation orders made against the first, second and
I
third Applicants on 22 December L986 be quashed;
2.	that the matter be referred to the respondent Minister for
further consideration of the decision to deport the Applicants
Mr. Islam and MS Banu In accordance with the Reasons for
Judgment herein.

-------

Counsel and Solicitor for the Applicants:-

Mr. Neil Lawrence Barlow

Barlow & Co.

Solicitors & Attorneys

916/185 Elizabeth Street

Sydney, 2000

Counsel and Solicitor for the Respondent Minister:-

Mr. Robert Orr

Australian Government Solicitor

St. James Centre

111 Elizabeth Street

Sydney, 2000

Dates of Hearing: 12, 13, 15, 16 January 1987

Date Judgment Delivered: 30 January 1987