Daguio, B. v Minister for Immigration & Ethnic Affairs

[1986] FCA 466

Re: BENJAMIN DAGUIO
And: MINISTER FOR IMMIGRATION and ETHNIC AFFAIRS
No. VG 186 of 1986
Deportation Order

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Ryan J.

CATCHWORDS

Deportation order - judicial review - decision of Minister to deport - whether vitiated by failure separately to consider whether to grant temporary entry permit to prohibited non-citizen - whether applicant denied natural justice - whether Minister failed to take into account a relevant consideration - whether deportation order invalid if country of destination not stated.

Migration Act 1958, ss.6, 6A, 7, 10, 18, 21A, 22.

Administrative Decisions (Judicial Review Act 1977

Goodwin v. Phillips (1907) 7 CLR 1

Minh Ter Sheng v. Minister for Immigration and Ethnic Affairs (unreported - 17 February 1986)

Kioa v. West 62 ALR 321

Local Government Board v. Arlidge (1915) AC 120

Sean Investments Pty. Ltd. v. MacKellar (1981-82) 38 ALR 363

Znaty v. Minister of State for Immigration (1972) 126 CLR 1

Judy Chia v. Minister for Immigration and Ethnic Affairs (unreported - 4 July 1986)

Faingold v. Zammit 1 FCR 87

Robtelmes v. Brenan (1906) 4 CLR 395

HEARING

MELBOURNE

#DATE 31:10:1986

ORDER

The application be dismissed.

The respondent's costs be taxed and then paid by the applicant.

NOTE: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

JUDGE1

The applicant, a Filipino national, entered Australia at Sydney on 12 January 1985, as a seaman on the "Arawa Bay". He was then issued with a temporary entry permit valid for one day only, for the purpose of repatriation. He overstayed that permit and was eventually located by officers of the Department of Immigration and Ethnic Affairs ("the Department") on 16 April 1986. He was then living at Thornbury in Victoria.

1. The applicant was taken into custody at the Immigration Detention Centre, Maribyrnong as a suspected prohibited non-citizen, pursuant to s.38 of the Migration Act 1958 ("the Act"). He was there interviewed by officers of the Department. In the course of that interview, he acknowledged that he had a wife and two children and other relatives in the Philippines, but no family in Australia. He traced his occupational history, including his training as a fitter and turner and the fact that he had completed part of a course in mechanical engineering. He indicated that he wished to remain in Australia because he would henceforth be excluded from employment as a seaman in the Philippines, and could find no other work there to enable him to support his family or educate his children. He also expressed concern that there was still political unrest in his homeland.

2. In a letter to the Department dated 29 April 1986, after referring to an earlier letter, and a telephone conversation with a departmental officer, Mr. McSpeerin, the applicant's solicitors continued:
   
   

"We confirm that Mr. Bonicci of Counsel saw Mr. Daguio at the Immigration Detention Centre on Friday the 25th April, 1986. We discussed the matter further with Mr. Bonicci on Monday the 28th April, 1986 and were informed that on the basis of his discussions with Mr. Daguio, he was satisfied that there was a basis for submissions to be presented to the Department on behalf of Mr. Daguio seeking a temporary visa. Those submissions will be forwarded to you as soon as they have been settled by Counsel.

In view of the fact that submissions are to be presented on behalf of Mr. Daguio, we would request that no action be taken in relation to any deportation order unless we are first given 48 hours notice of your intention to make such an Order."

In fact, it appears that the application when eventually made on behalf of Mr. Daguio on 5 May 1986 was not for a "temporary visa" or temporary entry permit, but for what is described in a departmental submission dated 20 May 1986 to the Delegate of the Minister, as "resident status". I presume that to be a reference to an application for an entry permit of the kind contemplated by s.6 of the Act, but not a temporary entry permit which authorised the applicant to remain in Australia for a specified period only. The form of the application lodged on behalf of Mr. Daguio on 5 May 1986 is not before the court.

1. It appears that, in the application lodged on his behalf, the applicant described himself as a single man living in a de facto relationship with a New Zealand-born woman, and stated the grounds of his application to be:-
   
   

"(i) occupational

(ii) strong compassionate or humanitarian"

The applicant was subsequently interviewed again by officers of the Department on 8 May 1986. In the course of that interview he traced the development of his relationship with the New Zealand-born woman from October 1985 and claimed that, six weeks before he was apprehended, they had discussed marriage to each other. He indicated that firm arrangements for a wedding would shortly be put in train, after the woman's mother arrived in Australia to assist them. The applicant claimed that he had been confused when he asserted in the earlier interview of 16 April 1986 that he was married with a wife in the Philippines, and had only meant to convey that he had left a de facto wife in that country.

1. On 9 May 1986, officers of the Department interviewed the woman with whom Mr. Daguio said he had established a de facto relationship in Australia. She confirmed the details which he had given of the development of that relationship and their intention to marry in June or July 1986.

2. The applicant's request for an entry permit conferring permanent resident status was referred to the Department's Resident Status Sub-Section which, on 15 May 1986, recommended that it be rejected. Subsequently, the Delegate of the Minister for Immigration and Ethnic Affairs ("The Minister") adopted the recommendations contained in the departmental submission of 20 May 1986 to which I have already referred, and on the same day issued a deportation order in the following terms:
   
   

"WHEREAS BENJAMIN V DAGUIO also known as ROY MORAN being a non-citizen, entered Australia on the twelfth day of January 1985

AND WHEREAS the said BENJAMIN V DAGUIO is a prohibited non-citizen by virtue of section 7 of the Migration Act 1958 in that he was the holder of a temporary entry permit which has expired and no further entry permit applicable to him came into force upon that expiration or has been granted to him since

NOW I, KEITH THOMAS OWEN, the Regional Director of the Department of Immigration and Ethnic Affairs, Victoria, 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 BENJAMIN V DAGUIO be deported from Australia

Dated this 20th day of May 1986"

1. On 22 May 1986 the applicant applied to this court pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") for an order of review in respect of the decision to issue the deportation order. No affidavit was filed in support of the application, and Mr. Bonnici of Counsel for the applicant indicated that the facts stated in the departmental submission of 20 May 1986 which was tendered in evidence were not disputed. The applicant had made no request, pursuant to s.13 of the ADJR Act, for a statement in writing of the reasons for the decision to issue the deportation order. However, it was agreed between Counsel that the departmental submission of 20 May 1986 should be treated as embodying all of the reasons which led the Delegate to issue the deportation order.

2. The decision to make the order was attacked on two
   grounds. In the first place, it was contended that there had been a denial of natural justice to the applicant because his request for an entry permit, or permanent resident status was refused without him being allowed to apply for a further temporary entry permit, or afforded a hearing of his submissions in support of such an application.

3. To understand fully that first contention, it is
   necessary to examine to some extent the scheme of certain sections of the Act. Section 6 provides for the grant of entry permits to non-citizens by stipulating in the first three sub-sections:
   
   

"(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.

(2) An officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.

(3) An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both."

Sub-section 6(5) enables an entry permit to be granted to a non-citizen either upon his arrival in Australia, or after he has entered this country, by providing:

"(5) An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to section 6A, after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of this Part).

Section 6A to which sub-s.6(5) is made subject, requires that one or more of five conditions precedent must be fulfilled before an entry permit may be granted to a non-citizen after his entry into Australia. Those conditions are specified as follows:-

"6A(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

(a) he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia;

(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

(d) he is the holder of a temporary entry permit which is in force, is authorised to work in Australia and is not a prescribed non-citizen; or

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

Provision is made by sub-s. 7(2) for the grant of a further entry permit, to, amongst others, a person who was the holder of a temporary entry permit which has since expired. That sub-s. recites;

"(2) At any time while a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder and, where such a further entry permit is granted while a temporary entry permit is in force, the further entry permit shall come into force only upon the expiration or cancellation of the existing entry permit."

Sub-section 7(3) has the effect that the holder of a temporary entry permit which is cancelled or expires, thereupon becomes a prohibited non-citizen, by providing:

"(3) Upon the expiration or cancellation of a temporary entry permit, the person who was the holder of the permit becomes a prohibited non-citizen unless a further entry permit applicable to him comes into force upon that expiration or cancellation."

Correspondingly, by s.10 it is enacted that:

"A person who has become a prohibited non-citizen ceases to be a prohibited non-citizen if and when an entry permit or further entry permit is granted to him, and not otherwise."

Liability to deportation is attached to a prohibited non-citizen by s.18 which provides:

"The Minister may order the deportation of a person who is a prohibited non-citizen under any provision of this Act."

Mr. Bonnici, for the applicant, accepted that, as things stood on 20 May 1986, Mr. Daguio did not fulfil any of the conditions precedent to the grant of an entry permit, which are erected by s.6A(1). However, it was argued that sub-s.7(2) conferred an unfettered discretion to grant to Mr. Daguio a further temporary entry permit, notwithstanding that he had already entered Australia and that his original 24 hour temporary entry permit had long since expired. Armed with such a further entry permit, so the argument ran, Mr. Daguio, could seek to invoke paragraph (e) of s.6A in support of an application for an entry permit which was not limited to a specified period only, by contending that there were strong compassionate or humanitarian grounds for the grant to him of permanent resident status. It was in the failure to afford him an opportunity to have a request for a temporary entry permit considered, that the denial of natural justice was said to consist.

1. It may be observed at once that there are difficulties with the relationship between ss.6, 6A and 7 for which Mr. Bonnici contended. Section 6 creates only one class of entry permit, of which the temporary entry permit referred to in sub-s.(6) is but a sub-species. That interpretation is borne out by the fact that s.5 contains a definition only of "entry permit" as "a permit issued under s.6", but no separate definition of "temporary entry permit". Consequently, the stipulation in sub-s.6(5) that the power to grant an entry permit to a non-citizen after he has entered Australia is "subject to s.6A" applies no less to the grant of a temporary entry permit, than to the grant of an entry permit which is not limited to a specified period.

2. The question then arises whether the general power conferred by sub-s.7(2) to grant a further entry permit after the expiration of a temporary entry permit overrides the combined effect of ss.6 and 6A which appears to preclude the grant of an entry permit to a non-citizen after his entry into Australia, if he is not the holder of a temporary entry permit which is in force and does not satisfy either of the conditions specified in paragraphs (a) and (b) of sub-s.6A(1).

3. I am inclined to think that the later, specific, enactment of s.6A, which was inserted by Act No. 175 of 1980, cuts down, by implication, the general power to grant a further entry permit which is conferred by s.7(2) of the Act. A similar approach to the effect of a special provision in an amending Act which was inconsistent with an earlier, general, provision dealing with the same subject matter was taken in Goodwin v. Phillips (1907 7 CLR 1 especially per Griffith CJ at 7. However, for reasons which will appear, it is not necessary for me to reach a concluded view on this question.

4. Mr. Bonnici, in support of his argument that the applicant has been denied natural justice by the delegate of the Minister referred me to the following passage from the judgment of Gray J., in Minh Ter Sheng v. Minister for Immigration and Ethnic Affairs (unreported 17 February 1986) at pp 12 and 13:-
   
   

"In the present case, the applicant never made any application for a further temporary entry permit. Nor did he ever make any application pursuant to s.6A(1) for any entry permit. It is true that his solicitors' submission raised questions of 'humanitarian grounds' and 'compassionate grounds', and he is described in the material which was the basis for the delegate's decision as a 'refugee from Vietnam'. That material also, however, makes it clear that no application for a temporary entry permit had been made. The applicant was never invited to make any such application. Nor was he invited to put forward material which might be specifically relevant to the grounds contained in s.6A(1), especially those found in paragraphs (c) and (e). Notwithstanding this, the Minister's delegate appears to have relied upon the applicant's failure to fulfil any of the conditions of s.6A(1), as part of the reasoning which led to the decision to order the applicant's deportation.

It appears to me to be arguable that, before ordering the applicant's deportation, on the footing that he could not rely upon any of the grounds contained in s.6A(1), the Minister or his delegate was obliged to give the applicant a fair opportunity to state whether he wished to apply for a further temporary entry permit, and subsequently for an entry permit pursuant to s.6A(1), and to put forward any material relevant to a grant of a further temporary entry permit, and the grounds contained in the sub-section. It is arguable that the failure to give such an opportunity amounted to a denial of natural justice. In Kioa v. West, 62 ALR 321, referring to a deportation order, Mason J. said: 'And if the order is made in consequence of a refusal to grant a further entry permit to 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.' The present case appears to be one in which the Minister's delegate has made a deportation order on the basis of a refusal to grant a further temporary entry permit, no application for which was made, without advising the applicant that this was the intention of the delegate, and without giving him an opportunity to make such an application, and to support it if he could do so. In my view, a serious question to be tried arises as to whether such a deportation order is not vitiated by a denial of natural justice."

I was also referred to a passage from the judgment of Brennan J. in Kioa v. West (supra) where his Honour speaking of the Act, observed at 376:

"The insertion of ss.6A and 27(2A), however, makes it manifest that the question to be decided under s.18 is not simply whether the prohibited immigrant should be deported but whether he should be granted an entry permit and perhaps a permanent entry permit so that he ceases to be a prohibited immigrant with all the disabilities which that status entails. The complex of powers contained in ss.6, 6A, 7 and 18 are directed to the status and disposition of the immigrant. The affection of the immigrant's interests is of the very nature of those powers and the repository must have regard to those interests in exercising them. And if the legislature intended the Minister or his delegate to have regard to the interests of the prohibited immigrant, the legislature may be presumed to intend that the prohibited immigrant should be heard before those powers are exercised."

Those passages make it clear that the delegate of the Minister is bound to accord natural justice to a prohibited non-citizen in considering the question of whether he should be granted an entry permit, before deciding whether he should be deported. Indeed, Mr. Moshinsky for the respondent did not contend to the contrary. However, it is now well established that an obligation to accord natural justice does not, in all circumstances, entail that the decision-making authority must receive oral submissions. See e.g. Local Government Board v. Arlidge (1915) AC 120 where Viscount Haldane L.C. observed at 134:-

"What appears to me to have been the fallacy of the judgment of the majority in the Court of Appeal is that it begs the question at the beginning by setting up the test of the procedure of a Court of justice, instead of the other standard which was laid down for such cases in Board of Education v. Rice (1911) AC 179. I do not think the Board was bound to hear the respondent orally, provided it gave him the opportunities he actually had."

A passage to similar effect occurs in the speech of Lord Parmoor, at 145, where his Lordship said:-

"Can it be said that in a case in which the statute gives the right to a public local inquiry, and in which the statutory rules of procedure do not provide for oral testimony before the Local Government Board, the mere refusal to hear such oral testimony amounts to a denial of the principles of substantial justice? I am unable to come to any such conclusion. It appears to me that in the present case the respondent had every fair opportunity of bringing his case before the determining tribunal, and that he has no substantial ground for complaint."

1. The answer to the first question raised by Mr. Bonnici, therefore, depends, in my opinion, on whether the applicant had a fair opportunity to put before the delegate of the Minister everything which could be urged in support of the grant to him of an entry permit. It seemed to be implicit in the argument advanced on his behalf that by treating him solely as an applicant for a permit under s.6A, the delegate precluded Mr. Daguio from relying on matters or submissions which could have been raised in support of an application for a temporary entry permit under s.7. However, nothing was identified which could have been, but was not put on behalf of Mr.Daguio before the delegate. Nor was counsel able to point to anything which was disregarded by the delegate. Mr. Bonnici relied on the concluding sentence of paragraph 14 of the departmental submission of 20 May 1986 as indicating that the decision-maker had already made up his mind that there were no compelling reasons for the grant of a temporary entry permit, before coming to the question of whether there were strong compassionate or humanitarian grounds of the kind contemplated by s.6A(1)(e) for the grant of an entry permit to Mr. Daguio.

2. It is convenient to set out, in full, paragraph 14 of the departmental submission:-
   
   

"14. It remains possible to authorize the subject's continued presence in Australia by the grant of a further temporary entry permit. However it is considered that such a grant is inappropriate because he has already stayed in Australia for a longer period than that normally allowed to seamen being repatriated from this country, he has stayed in breach of migration law and policy, and he has engaged in employment without written permission of an authorised officer. No compelling reasons have been advanced in this case to justify the grant of a further temporary entry permit."

In my view, in coming to the conclusion that no compelling reasons had been advanced for the grant of a further temporary entry permit, the decision-maker took account of everything which had been, or could have been, submitted on behalf of Mr. Daguio. That is made clear by the next paragraph, 15, of the departmental submission which summarizes, as follows, what was taken into account:-

15. The subject has applied for the grant of permanent resident status in Australia under Sub-sections 6A(1)(d) and (e) of the Act. The officer-in-charge, Resident Status Sub-section has considered the subject's application for the grant of resident status in Australia on the basis of his puported defacto relationship, all other factors advanced, and on employment grounds and has taken into account the claims by the subject, the events leading to his status and all other relevant issues, in the light of the current policy on illegal immigrants. The said officer-in- charge has supported the recommendation for rejection."

In some of the following paragraphs detailed consideration was given to the nature of the relationship which the applicant had formed with the woman from New Zealand, and the effect on it, and the expenses which would be incurred if he were repatriated to the Philippines and forced to seek to return to Australia as a fiance. Moreover, in the assessment dated 15 May 1986 prepared by the Resident Status Sub-Section of the Department of Immigration and Ethnic Affairs which was Attachment G to the departmental submission of 20 May, and was presumably taken into account by the delegate, the following passage appears:-

"On 5 May 1986 the applicant's formal application for change of status pursuant to sub-section 6A1(e) and (d) of the Act was received.

Claims advanced by the applicant are as follows:

1. Applicant is in a de-facto relationship with an Australian resident and plans to marry her in June/July 1986.

2. Separation would cause emotional hardship.

3. While applicant was a student in the Phillippines, he participated in political rallies against former president and still fears reprisals.

4. Applicant would encounter difficulties in securing employment in Philippines, because he did not return from his last voyage. Lack of employment would cause financial hardship.

5. Applicant likes Australia and considers that his future economic prospects are good."

I accept, with respect, the following statement by Deane J., in Sean Investments Pty. Ltd. v. MacKellar (1981-82) 38 ALR 363 at 375, as encapsulating the test to be applied in reviewing administrative decisions of the kind taken in respect of Mr. Daguio:-

"In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The grounds of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

Where, as here, an applicant for review cannot instance a single relevant consideration which he has been precluded from putting before the decision-maker, a claim that he has been denied natural justice must fail. Equally, where it appears, as it also does in this case, that the decision-maker has taken account of all matters placed before him by the parties, and has given to them what weight he considered appropriate, the decision-maker cannot be said, for any other reason, to have improperly exercised the power conferred on him.

1. The second ground of the attack mounted by the applicant against the issue of the deportation order was that it failed to specify any destination to which he was to be deported. The inspiration for that ground was provided by another passage in the judgment of Gray J. in Minh Ter Sheng v. Minister for Immigration (supra) in which his Honour identified the remaining question on the application before him for an interlocutory injunction, as concerning "the failure of the deportation order to contain any indication of the destination to which the applicant should be sent." After reviewing various section of the Act as well as Znaty v. Minister of State for Immigration (1972) 126 CLR 1 and certain other authorities, his Honour concluded:
   
   

"I regard it as seriously arguable that the purported order for the deportation was wholly invalid, as it failed to specify a destination to which he would be taken.

My conclusion, therefore, is that serious questions do arise as to the validity of the decision to deport the applicant."

However, the question of whether a deportation order must specify a destination to which the deportee is to be taken was also considered by Northrop J. in Judy Chia v. Minister for Immigration and Ethnic Affairs (unreported, 4 July 1986). In that case his Honour unertook an extensive review of all the sections of the Act which seem to me to bear on the question of whether a deportation order made pursuant to s.18 must specify a destination. His Honour also analysed in detail the relevant passages in each of the judgments in Znaty v. Minister of State for Immigration (supra) and concluded that:

"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."

1. It is sufficient to dispose of the second ground invoked by the present applicant for me to say that I am entirely convinced by the reasoning of Northrop J. in Judy Chia's Case. It must be borne in mind that in expressing the views which he did in Minh Ter Sheng v. Minister for Immigration and Ethnic Affairs Gray J. was deciding whether to grant an interlocutory injunction. To grant that relief, he had only to find that there was a serious question to be tried; Faingold v. Zammit 1 FCR 87. Accordingly, the views expressed by Gray J., (which were fully before Northrop J. in Judy Chia's Case), should not be regarded as intended to conclude that question. Moreover Gray J. paid no express regard in his reasons for judgment to Robtelmes v. Brenan (1906) 4 CLR 395 of which Northrop J. observed:
   
   

"A reading of the judgments in that case makes 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 CJ at p.406 and O'Connor J. at pp.421-2."

I am refinforced in my adoption of Northrop J's reasoning by the fact that s.21A(1) of the Act provides that:

"21A. (1) Where the Commonwealth makes arrangements for the conveyance of a deportee from a place in Australia to a place outside Australia, the deportee is liable to pay to the Commonwealth an amount equal to the passage money and other charges payable in respect of the conveyance."

Had it been intended, or contemplated, that the "place outside Australia" must of necessity, be specified in the deportation order itself as made pursuant to s.18, s.21A would not appropriately have taken its present form. I also derive some comfort in reaching the conclusion which I have from the concession, by Mr. Moshinsky, for the respondent, that a decision made by the Minister or an authorized officer subsequent to a deportation order, as to the place to which the deportee is to be taken as contemplated by s.21(3) or (3A), s.21A(1) and s.22(1), is itself reviewable at the instance of the deportee.

1. Accordingly, the applicant's second attack on the deportation order also fails and, in the result, the application must be dismissed.