Dallikavak, K. v Minister of State for Immigration and Ethnic Affairs

Re: KADIR DALLIKAVAK
And: THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS
VG No. 37 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
VICTORIA DISTRICT REGISTRY
Keely J.

CATCHWORDS

Administrative Law - judicial review - application for stay of deportation order - order of review sought on various grounds relating to pending workers' compensation and damages claims - failure by applicant to establish that a serious question to be tried in relation to any ground - applicant filed s. 13 statement of reasons but objected to respondent's tender of it as evidence - whether admissible

Administrative Decisions (Judicial Review) Act 1977, ss, 5, 13, 15

Migration Act 1958, ss. 18 and 20

Federal Court Rules, Order 54 Rule 3(1)(b)

HEARING

MELBOURNE
#DATE 22:3:1985

JUDGE1

The applicant has applied under s. 5 of the Administrative Decisions (Judicial Review) Act (the Judicial Review Act) to review decisions by the respondent Minister on or about 15 February, 1985 which are described in the application as follows :-

"(a) to deport the applicant from Australia;

(b) to confirm the deportation order which had been made in respect of the applicant on or about 4th October, 1984

(c) to require that the Applicant be deported from Australia by 28th February, 1985; and

(d) to take the Applicant into custody."

The present hearing relates to an application under s. 15 of the Judicial Review Act for orders suspending the operation of each of the decisions, pending the hearing and determination of the application, and staying all proceedings under those decisions. Orders to that effect were made ex parte on 26 February, 1985 until 1 March, 1985 and on subsequent dates those orders were continued so as to enable the hearing and determination of the application under s. 15. The principles applicable to such an application were dealt with by Sweeney, Lockhart and Sheppard JJ. in Faingold v Zammit (1984) 1 F.C.R. 87 at pp. 92-91. The applicant must establish that there is a serious question to be tried. If the applicant succeeds in establishing that matter, there is no real dispute as to where "the balance of convenience" lies.
As these are interlocutory proceedings no conclusions have been reached as to the facts. There is material before the Court which, if accepted at the hearing of the application under s. 5 of the Judicial Review Act, would support the following conclusions:-

1. The applicant, who is a national of Turkey,

entered Australia on 17 December, 1980 on a temporary entry permit which authorised him to remain in Australia for two months from the date of entry i.e. until 17 February, 1981.

2. The applicant has neither sought nor been

granted any temporary permit in respect of any part of the period of four years since that date.

3. The applicant did not adhere to an undertaking

that he would depart at the end of his authorised period of stay.

4. The applicant broke an undertaking that he would

not undertake employment whilst in Australia.

5. The applicant was employed under a different

name, that of Omar Soylamis. He was injured at work on 7 March 1983 and was paid weekly payments of compensation between 7 March, 1983 and 23 March, 1984, totalling $11,015-00.

6. On 6 April, 1984 the applicant was arrested by

officers of the respondent's department (the department) and placed into custody at the Immigration Detention Centre at Maribyrnong in Victoria.

7. On 10 April, 1984 Mr. Dominic Calibro, a

solicitor, discussed the applicant's circumstances with Mr. Hewson, an Enforcement Officer in the department, and later that day telephoned to say that the applicant wished to leave Australia voluntarily.

8. The applicant, under the name of Omar Soylamis,

obtained legal advice from Mr. Wilder, a solicitor, during a period which included the period between 4 May, 1983 and 23 April, 1984.

9. The applicant, on or about 19 April, 1984, gave

the department an undertaking that, if he were released from custody, he would attend at Melbourne Airport on 23 April, 1984 for the purpose of departing from Melbourne and travelling to Istanbul via Pakistan Air Lines, using an airline ticket which had been purchased by him and supplied to the department. In breach of that undertaking he failed to attend at Melbourne Airport on that day. There has been no affidavit or oral evidence by the applicant in these proceedings but it appears from a statutory declaration by a solicitor, Mr. Wilder that the applicant had received through "an English speaking acquaintance", during the weekend of April 21 or 22, advice from Mr. Wilder that it was against his "interest to leave Australia without first taking legal advice". It also appears that, Mr. Wilder "was not aware at the time of giving such advice of any undertaking given by Mr. Soylamis" (i.e. the applicant) although he saw the applicant on Monday 23 April, 1984 and gave him legal advice.

10. On 24 April, 1984 the delegate of the respondent

Minister issued a deportation order directed against the applicant.

11. On 2 May, 1984 "as a result of search action"

by the department the applicant was arrested at his brother's residence in Collingwood.

12. The applicant on 4 May, 1984 obtained from the

Federal Court (Smithers J.) a stay of the deportation order; later, after discussions, it was agreed that the Minister would reconsider his decision and the applicant would discontinue his proceedings.

13. A letter, dated 17 August, 1984 from the

department to the applicant's solicitors, Messrs. Cash and Stone, was in the following terms :-

"Re: Mr Kadir Dallikavak

In view of the settlement reached in the Federal Court on 8 August 1984, it is now proposed to put afresh all matters relevant to Mr Dallikavak's case for the consideration of the Minister's delegate.

You are invited on behalf of your client, Mr Dallikavak, to furnish such submissions or other matters that you wish to be placed before the Delegate. In particular, you are asked to advise on the following :

. full details of the matters giving rise to the proceedings instigated on 9 May 1984 with the Workers Compensation Board;

. the current status of the proceedings i.e. has the Workers Compensation Board set a date on which the proceedings would be dealt with? When do you expect the matter to be finalised?

. why precisely do you consider that Mr Dallikavak's presence in Australia is required prior to and during the compensation hearing? For what Period?

. Why could your client not return to Australia at some later date if his attendance was required in relation to such proceedings?

Departmental officers were required, on two occasions, to institute extensive search action to locate Mr Dellikavak. Moreover, he used a false name on one occasion apparently in an attempt to hide his true identity and he subsequently breached an undertaking to advise the Department of his change of address. In the light of these factors, it is not appropriate that Mr. Dallikavak be released from custody.

In those circumstances, I request that your reply to this letter and any submissions and other material that you wish to be placed before the Delegate to reach me, at the above address, no later than fourteen (14) days from the date of this letter.

Yours faithfully

E. Joseph

For Secretary"

14. On 4 September, 1984 the applicant's

solicitors, replied to the department in a letter which included the following :-

"Further to your letter of the 17th August, 1984 we provide the following further particulars for the consideration of the Ministers Delegate.

...

2. We are of the opinion that Mr. Dallikavak has two claims the first under the Provisions of the Victorian Workers Compensation Act and the second a common law claim against the employer for failing to provide a safe system of work.

3. The final hearing of the Workers Compensation proceedings is listed before the Workers Compensation Board on the 11th. October, 1984 and it is hoped that both claims will be disposed of at this stage.

4. It would (be) virtually impossible for ourselves as his solicitors to effectively conduct the litigation on his behalf without having access to Mr. Dallikavak. He would need to be examined by his General Practitioner, an orthopaedic surgeon, a neurologist and possibly also a psychiatrist whose evidence would be required to (be) made available to the Workers Compensation Board if this matter proceeds to hearing. Consequently specialists in Mr. Dallikavak's country of origin would be be feasible as the practicalities of them attending a Court in Australia would appear to be insurmountable. (It was common ground that the words "be be feasible" were intended to read "not be feasible").

5. Mr. Dallikavak we believe requires to have continuing treatment and it is normal practice for the treating doctors to be available for the assistance of the Workers Compensation Board in arriving at its determination. Consequently Mr. Dallikavak should be treated in Australia.

6. In the course of all litigation it is necessary to have immediate contact with one's client so that he can adequately instruct his legal advisors in relation to the preparation of all facets of the case and in relation to any unexpected contingencies with may arise in the conduct of any case and require immediate and urgent instructions from the client so as to adequately protect his legal interests.

7. We understand that Mr. Dallikavak was apprehended at an address at which he was openly staying and which address had been provided to your Department. His reasons for not leaving Australia on the flight for which he had purchased tickets was that he had received advice from his solicitor not to leave the country until his case had been finalized. He failed to advise your officers of the Workers Compensation case because of his great confusion and apprehension when taken into custody at first."

It may be noted that at the date of the letter no proceedings had been issued in respect of the "common law claim" referred to in paragraph 2 of that letter; a summons was later (28 September, 1984) issued in the County Court claiming damages of $100,000-00 in respect of the injury on 7 March, 1983.

15. By letter dated 9 October, 1984 the department

wrote to the applicant's solicitors (Messrs. Cash and Stone) in the following terms :-

"I refer to your letter of 4 September 1984 concerning your client Mr Kadir Dallikavak who is a prohibited non-citizen.

The delegate has now considered afresh Mr Dallikavak's personal circumstances in the light of the matters raised in your submissions, together with departmental reports. The delegate decided, on 4 October 1984, to sign a fresh order for Mr. Dallikavak's deportation. (The deportation order of 24 April 1984 was revoked).

The Regional Director of the Department in Melbourne has been advised of the decision and will make the appropriate arrangements for your client's departure no later than 26 October 1984.

Yours faithfully

E. Joseph

for Secretary"

It will be noted that that letter provided to the applicant's solicitors information as to three matters -

(a) the deportation order made on 24 April, 1984 had been revoked;

(b) a fresh deportation order had been signed on 4 October, 1984;

(c) the "Regional Director .... in Melbourne ... will make the appropriate arrangements for your client's departure no later than 26 October 1984."

16. Mr. G. Hand, M.P., by telex and letter dated 26

October, 1984, made representations to the then Minister (Mr.West), asking that the applicant be released from the Detention Centre until his workers compensation case is concluded and that the Minister give "consideration to the request by Mr Dallikavak that he be allowed to remain in Australia as a permanent resident". As to that reference to permanent residence, it may be added that there is no evidence that the applicant ever made such a request; further it has not been suggested by his counsel in these proceedings that the applicant fulfils any of the "conditions" required by s. 6A(1) of the Migration Act.

17. On 29 November, 1984 the applicant and his

brother, Mustafa Dallikavak, both entered into undertakings to the department and he was released into the custody of his brother Mustafa.

18. By letter dated 19 December, 1984 the

applicant's solicitors made representations to Mr. G. Hand, M.P., asking that those representations be conveyed to the Minister for his consideration. That letter included the following :-

"re: Mr. Kadir Dallikavak

We act for the abovenamed who has been the subject of deportation proceedings and who is now released pending the completion of his Workers Compensation Claim and pending further decision by the Minister of Immigration. We understand you have made representations on behalf of our client to the Minister.

The major points in favour of our client's claim for the Ministers favourable consideration are as follows :-

...

(v) He has a claim for compensation for serious industrial injury pending before the Workers Compensation Board.

It is the last point which is of very crucial importance. The injury to his back occurred in such circumstances as to give rise to a common law claim which has already issued in the County Court.

If pursued independently, and our client might not have any alternative, the action would be likely to take up to a further 2 years.

The Workers Compensation claim came on for hearing on 17th August, 11th October and again on 29th November, 1984 when it was adjourned to 22nd February, 1985. The claim has been fixed as the first case and it would be safe to assume that there is a fairly high probability that the matter will be disposed of on that date. ... So inevitably, the Workers Compensation Claim will be determined by the Board and the County Court damages claim will remain pending for a further 18 months or so.

...

It is therefore our submission that justice cannot be done for our client in respect to his industrial injuries unless he is allowed to pursue his claim for Workers Compensation in February, 1985 without the threat of deportation hanging over his head. ... If deportation is effected our client will be unable to pursue his claim to damages in the County Court.

We would be most grateful if you would pass this letter on to the Minister for his consideration."

That letter was part of the material annexed to the departmental submission to the Minister, dated 8 February, 1985. It will be noted that the letter, in referring to the time required for the common law claim, said that it "will remain pending for a further 18 months or so" and "the action would be likely to take up to a further 2 years".

19. No action was taken to enforce the deportation

order of 4 October, 1984 until February 1985. It may be noted that the validity of such an order "shall not be affected by any delay in the execution of that order" - see s. 20(2) inserted by the Migration Amendment Act 1983 (Act No. 112 of 1983).

20. Affidavit evidence (paragraph 9) by Mr. Hewson

included a statement that :-

"The Respondent considered the case again in light of fresh submissions including those from Mr. Gerry Hand MP and from new Solicitors for the Applicant Riggall Ring and Co.. The Respondent determined on 15 February 1985 not to re-open the decision that Mr Dallikavar

(sic) be deported and decided that the deportation order should be put into effect no later than 28 February 1985. Now produced and shown to me and marked with the letters 'RFH-6' is a copy of the submission to the Respondent together with annexures referred to therein."

21. On 15 February, 1985 the respondent approved and

intialled two recommendations contained in a departmental submission dated 8 February, 1985, which read as follows :-

"I recommend that :

(i) you do not reopen the decision that Mr Dallikavak be deported;

(ii) the deportation order be put into effect no later than 28 February 1985"

On 18 February, 1985 the respondent signed a letter to Mr. Hand, M.P., drafted by a departmental officer and attached to the submission, to which letter reference will be made later.

It may be added that a Victorian Workers Compensation Board has heard a claim by the applicant and on 8 March, 1985 awarded to him the sum of $2,982-00 by way of weekly payments in respect of the period from 24 March, 1984 to 8 March, 1985 and ordered that "payments at the rate of 25% partial incapacity to continue in accordance with law". In a further affidavit filed on 18 March, 1985, Mr. Baker, the applicant's solicitor in these proceedings, deposed, from information and belief, that the applicant's solicitors in the worker's compensation proceedings -

(a) intended to have issued on that day an

application for the appointment of a medical referee pursuant to s. 10 of the Workers Compensation Act (Vic.), such application to be heard at an early date;

(b) intend to "issue appeal proceedings from the

decision" of 8 March, 1985 (presumably by way of case stated to the Full Court of the Supreme Court of Victoria).

However, those matters occurred since the date of the decisions challenged in these proceedings - and since the commencement of the present hearing.

That material was tendered by the applicant, without objection, as relating "to the matter of discretion that (Mr. Moshinsky) was addressing .. on". However, in my opinion the existence of the discretion conferred upon the Court by s. 16 of the Judicial Review Act will rarely, if ever, be relevant when the Court is considering whether there is a serious question to be tried in hearing an application under s. 15 of the Judicial Review Act for an order suspending the operation of a decision or staying proceedings under the decision. It is not relevant in the present case.
The applicant's solicitors wrote to the respondent, by letter dated 22 February, 1985, in terms which included the following :-

"We refer to the decision made recently by the Minister to deport our client Mr. K. Dallikavak on or before the 28th day of February, 1985.

We should be pleased if you would give us the reasons for that decision pursuant to Section 13 of ADJR Act as a matter of urgency.

We advise that we intend to make an application to stay that Deportation Order in the light of the current Common Law proceedings and an application to seek review of the Minister's fresh decision.

We advise that we shall serve any papers on Mr. Rossa Maclure of the Commonwealth Solicitors Office and give you notice by telephone of the time and place of our intended application. .."

It is clear from that letter that on 22 February, 1985 the applicant had decided to institute proceedings in the Court under the Judicial Review Act raher than formally request a reconsideration of the matter by the respondent.
It was common ground that the applicant's solicitors were provided with a statement of reasons for that decision (the s. 13 statement) before the resumption of the hearing last Thursday, 14 March, 1985. That statement, signed by the respondent Minister, was filed by the applicant, as required by Order 54 Rule 3(1)(b) of the Federal Court Rules.
Mr. Neil Young and Mr. A. Cavanough, of counsel, who appeared for the applicant, submitted that the s. 13 statement was not part of the evidentiary material before the Court. They also objected to the respondent's attempt to place the s. 13 statement before the Court by exhibit to an affidavit. Both of the submissions by the applicant's counsel were upheld and accordingly the s. 13 statement does not form part of the material before the Court.
Mr. Young submitted that the mere fact that the s. 13 statement was supplied pursuant to a duty imposed upon the respondent by the Judicial Review Act, did not make the statement admissible in evidence. Mr. Moshinsky, of counsel, on behalf of the respondent, conceded that, on the rules of evidence applicable to Court proceedings, the statement would not be admissible in evidence. He also conceded that the Judicial Review Act does not expressly provide that the s. 13 statement is to be admissible in evidence or is to have evidentiary value, either prima facie or otherwise. The Judicial Review Act did not include in s. 13 a provision that the statement furnished would be prima facie evidence that (1) the findings in it were the decision maker's findings on the material questions of fact, (2) the findings were based on the evidence or other material referred to in the statement, and (3) the reasons given in the statement were the reasons for the decision. In this connexion s. 155 of the Conciliation and Arbitration Act 1904 provides that a certificate of the Industrial Registrar as to certain matters "shall .. be prima facie evidence that the facts are as stated" (compare s. 135 as to a certificate of registration being "conclusive evidence of the registration ... and that the organization has complied with the prescribed conditions ...").
Mr. Moshinsky submitted that the Judicial Review Act makes it clear "that a right of review can only arise if the applicant lodges a s. 13 statement with his application" (where such a statement has been supplied), relying upon s. 11 of the Judicial Review Act and Order 54 of the Court's Rules. In my opinion that submission cannot be upheld. The Judicial Review Act does not contain any provision requiring that the applicant file the s. 13 statement. Section 11(1)(a) requires that an application "shall be made in such manner as is prescribed by Rules of Court" (and see s. 11(2)). The rules require an applicant to file a s. 13 statement if it is "in his possession ... unless a copy .. has been filed previously in the proceeding". However, there is no provision that the s. 13 statement is admissible in evidence or that it shall be prima facie evidence of any of its contents.
Another way in which the respondent's submission was put was that the Judicial Review Act, which gave the applicant the right to obtain a statement of reasons under s. 13, contemplated that that statement would be part of the material before the Court. However, in my opinion that submission cannot be upheld. Doubtless the Judicial Review Act, conferred the right to obtain a s. 13 statement in order to assist a potential applicant in deciding whether to challenge a decision; further, to enable him, in presenting his case upon any such challenge, to tender it in evidence as an admission by the respondent if he considered that the statement supported his case.
However, there is nothing in the Act in my opinion which expressly or impliedly takes away the applicant's right to put his case in accordance with the normal processes of litigation. That process includes a right to tender such evidence as he considers will assist his case; the applicant is not under any duty to tender in evidence material adverse to his case. In my opinion the Judicial review Act does not expressly or impliedly take away the right of an applicant to object to the tender by the respondent of any material adverse to his case, including the respondent's statement of reasons, where such material is not admissible against the applicant under the rules of evidence.
The s. 13 statement in the present case has been referred to by the applicant's counsel as "self-serving" in that it was signed after the applicant's counsel had opened the application and referred to the affidavits, departmental submissions and other documents in considerable detail. Mr. Moshinsky has confirmed that he does not propose to call the Minister to give evidence and, accordingly, he cannot be cross-examined as to the accuracy of the s. 13 statement or as to whether he took into account other considerations in making the decision. It may well be that in most cases relating to deportation the applicant will find it difficult - or even impossible - to establish his case without the s. 13 statement and will tender it in evidence as part of his own case. This is likely to be the case where - unlike the present case - the respondent has refrained from filing any affidavits as to the evidentiary material which was before the decision maker.
Mr. Moshinsky, in submitting that the objection by the applicant to the admissibility of the s. 13 statement should be disallowed, sought to rely upon the decision in Sezdirmezoglu and Another v Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561 where Smithers J., at p. 570, said :-

"There is a preliminary question concerning the evidentiary status of the statement of reasons provided by the Minister on 15 September 1983. The statement was not in the form of an affidavit and was merely tendered at the commencement of the hearing. Some guidance as to the status of the reasons can be gleaned from Givaudan & Co. Ltd. v Minister of Housing and Local Government (1967) 1 W.L.R. 250; (1966) 3 All E.R. 696. In that case the Minister was under a statutory duty to provide reasons pursuant to the Tribunals and Inquiries Act

1958. His Honour Mr Justice Megaw said (W.L.R. at 259: 'The document containing the Minister's reasons is ... an important document, required by statute to be prepared for a particular and important purpose, and it must be, and no doubt is, regarded by the Minister as such. The whole of its contents must be assumed prima facie, at least, to have been inserted for a relevant purpose: namely, the setting forth with reasonable precision and clarity of matters which are relevant as indicating and explaining positively or negatively the reasons for the Minister's decision.' In line with the thrust of these comments I take the view that the statement of reasons provided by the Minister, unless effectively challenged, are evidence of the reasons for his decision."

It appears from the report that both the applicant and the respondent Minister sought to rely upon passages in that statement. There is nothing in the report to suggest that the Minister's s. 13 statement - "tendered at the commencement of the hearing" - was tendered in evidence by the Minister and objected to by the applicant. Had that occurred doubtless Smithers J. would have referred to the objection and given his ruling upon the admissibility of the statement.
It will also be noted that the passage quoted from the decision is directed to "the evidentiary status of the statement" and not to its admissibility in evidence. If it was tendered by the applicant there could have been no objection by the respondent to its admissibility in evidence. It may well be that the parties were in agreement that the s. 13 statement was to be part of the evidentiary material before Smithers J. but were in dispute as to whether it was evidence of the reasons for the decision on the one hand or prima facie evidence of the facts stated in it. Accordingly, in my opinion the respondent's submission is not assisted by the decision in Sezdirmezoglu (supra).
Mr. Moshinsky also submitted that in Minister for Immigration and Ethnic Affairs v Arslan and another (1984) 44 ALR 361, Sweeney, St. John and Morling JJ. impliedly accepted the view "that a statement of reasons once admitted into evidence is evidence of the reasons of the Minister". However, the question in the present case is whether the statement should be admitted into evidence. It appears that Arslan's case did not deal with any question of the admissibility in evidence of a s. 13 statement; neither the report of the Full Court, nor the report of the decision of the primary judge (48 ALR 577), suggest that any objection had been taken to the admissibility of the s. 13 statement. No other authorities were cited and the respondent has failed in his submission that the s. 13 statement is admissible in evidence.
The applicant did not object to the admissiblity of the letter, dated 18 February, 1985, from the respondent Minister to Mr. Hand, M.P.. That letter included the following passages :-

"... Persons applying to visit Australia normally sign undertakings overseas that they will not seek permission to settle in Austalia, will not undertake employment while here and will depart at the end of their authorised period of stay. Mr Dallikavak has not adhered to any of these undertakings and has committed offences under the Migration Act.

Mr Dallikavak unlawfully engaged in employment and allegedly sustained an injury during the course of his employment. Departmental officers were required, on two occasions, to institute extensive search action to locate Mr Dallikavak. Moreover, he has used a false name in an attempt to hide his true identity and has broken an undertaking to advise the Department of his change of address. Following Mr Dallikavak's location and apprehension on 6 April 1984, he was released from custody on 19 April 1984 for the purpose of exercising an option for voluntary departure from Australia on his own ticket. Mr Dallikavak did not depart as arranged and an order for his deportation was signed on 24 April 1984.

...

Mr. Dallikavak subsequently rejected two offers of settlement and on 17 October 1984 he dismissed his solicitors. Mr Dallikavak has engaged fresh legal representation and a hearing before the Workers Compensation Baord has been set for 22 February 1985.

During the past nine months Mr. Dallikavak has been examined on several occasions by specialists in connection with his injury which is the subject of his present compensation claim and it is possible that further examinations will be necessary. Information provided by the Department of Health indicates that, if necessary, the Austalian Embassy Ankara could assist with arrangements to have Mr. Dallikavak examined by appropriate specialists in Turkey and their respective reports forwarded to his solicitors in Melbourne. Consequently, Mr. Dallikavak's continued stay in Australia on medical grounds is not considered as being justified.

Further, I am advised that Mr. Dallikavak is not prevented from continuing his action for compensation from abroad and has already been granted a reasonable amount of time, in the circumstances, to personally pursue his claim here. Mr. Dallikavak does not fulfil any of the conditions of section 6A of the Migration Act for consideration of the grant of permanent resident in Australia.

While I have given consideration to the effect of deportation on Mr. Dallikavak's compensation claim, I consider that much of the disadvantages claimed are of Mr. Dallikavak's own making in working illegally, under an assumed name, in Australia. He has been given more than adequate opportunity to pursue his claim and given much more consideration than other persons who overstay their permission to remain in Australia. Mr Dallikavak has already, through avoidance, deception and failure to comply with Departmental directions, achieved a stay in Australia of some 4 years. To allow any further stay in Australia would be to condone and encourage circumvention of the usual migration controls.

In all the circumstances, I cannot see sufficient justification to revoke the deportation order that is currently held against Mr Dallikavak. The Regional Director, Melbourne, is being advised of the decision and will make arrangements for Mr. Dallikavak's departure from Australia at the end of February 1985. .."

There is considerable overlapping between the various particulars of the grounds in the amended application. They have been supported by lengthy submissions by both Mr. Young and Mr. Cavanough in which the affidavits and documentary material before the Court have been extensively canvassed and carefully analyzed in an endeavour to persuade the Court that there is "a serious question to be tried". It is fair to say that during the present hearing, which occupied three full days and two half days, every argument that could possibly be put has been argued by them. However, I am quite unable to conclude that there is a serious question to be tried. In the following reasons it has not been considered necessary to repeat, in respect of each particular of each ground, reasons given elsewhere for rejecting a contention that was substantially the same, although at times expressed in different words.
Ground 1 of the application, as amended, was that "a breach of the rule(s) of natural justice occurred in connection with the making of each" decision. In my opinion the rules of natural justice had no application - see Full Court decision in Arslan's Case (supra). I do not consider that the facts of the present case gave rise to any "legitimate expectation" cf. Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 40 ALR 341 at 348 and 358.
The facts alleged in particular (1) of Ground 1 were that :-

"(1) The said decisions were based upon advice obtained by the Minister from the Attorney-General's Department concerning the practicability of the applicant continuing to pursue his common law damages claim and/or his workers compensation claim against his former employer from outside Australia. The Applicant was not afforded any opportunity to dispute, or answer, the contents of the said advice."

Even if the principles of natural justice applied, in my opinion there was no breach of those principles - because of the specific request from the respondent (dated 17 August, 1984 - set out in full in parag. 13 above). The applicant's solicitors in response to that request expressed in writing strong views "concerning the practicability of the applicant continuing to pursue his common law damages claim and/or his workers compensation claim ...". The principles of natural justice did not require that the applicant be given a further opportunity to "... answer the contents of the said advice".

For substantially similar reasons I reject the contentions, based upon similar matters, raised by particular (1)(a) of Ground 2(a) (a contention that the respondent took into account irrelevant considerations), by particulars (2)(a)(c) and (d) of Ground 2(b) (failure to take into account relevant considerations) and by particulars (3)(a) and (d) of Ground 2(c) ("exercise of power ... so unreasonable that no reasonable person could have so exercised the power").
The facts alleged in particular (2) of Ground 1 were as follows :-

"(2) The applicant was given no opportunity to answer the following allegations which were placed before the Minister's delegate when he made the decisions on or about 15th February, 1985 :-

(i) that the Applicant has acted unreasonably in dismissing solicitors and Counsel retained in connection with his workers compensation case and his common law claims and in refusing offers of settlement which had been made to him;

(ii) that, having regard to the foregoing, the Applicant was deliberately delaying and/or protracting the workers compensation case and the common law proceedings in order to avoid being deported."

Similar claims were made in particulars (1)(c)(i) and (ii) of Ground 2(a) ("irrelevant considerations") in particular 3(c) of Ground 2(c) (exercise of power "so unreasonable") and also in particular (4)(g) of Ground 2(d) (a contention that there was "an abuse of power". Those claims fail for substantially the same reasons as those now to be given in respect of particular 2 of Ground 1.

It may be said immediately that there is no evidentiary material suggesting directly that any such allegations were placed before the respondent. The contention is apparently based upon references in the material before the respondent (e.g. in the departmental submission dated 8 February, 1985) to refusals by the applicant of two settlement offers and to his action in dismissing his solicitors - both of which matters were referred to by the respondent in reciting the history of the matter in his letter to Mr. Hand, M.P., dated 18 February, 1985. That letter was drafted by an officer of the department and attached to the departmental submission dated 8 February, 1985.

The purpose of the departmental officer in referring, in both the submission and the draft letter, to those matters is not clear. It may have been merely to inform the Minister as to the events which had occurred, perhaps as helping to explain the passage of time; that possibility gains some support from the fact that one of the references in the "submission" by the departmental officers is followed immediately by the words "It would be reasonable to conclude that Mr. Dallikavak has been given sufficient consideration".
In the earlier departmental submission, dated 13 November, 1984, somewhat similar words were used, as follows:-

"The personal position of Mr. Dallikavak has been given sufficient consideration and the interests of the community now need to be given greater consideration" (RFH 6)

The latter part of that passage suggests that the material may have been only directed to explaining the length of time taken by the applicant's proceedings - rather than an allegation that the application had "acted unreasonably" or been guilty of "deliberately delaying .. the proceedings in order to avoid being deported".

However, irrespective of any purpose of the departmental officer, there was no suggestion in the material before the respondent that the applicant had been "deliberately delaying .. the proceedings" or that he had "acted unreasonably" in either of the ways suggested. There is nothing in the material before the Court to suggest that such a finding had been made by the respondent and it is not credible that the respondent, as a responsible Minister of the Crown, would have found that as a fact. I reject the suggestion that the respondent Minister took into account, as a factor relevant to the exercise of his statutory discretion, any of the matters set out in particulars (2)(i) and (ii) of Ground 1 ("natural justice"), particulars (1)(c)(i) and (ii) of Ground 2(a) ("irrelevant considerations"), particular (3)(c) of Ground 2(c) (exercise of power "so unreasonable") and particular (4)(g) of Ground 2(d) ("abuse of power").
Ground 2(a) of the application was that the Minister took into account irrelevant considerations including :-

"(1)(a) the Respondent acted upon the advice of the Attorney-General's Department that it would be both reasonable and practicable for the Applicant to conduct proceedings at common law for damages and under statute for workers compensation from outside Australia;"

However, there is no evidence - nor could it be reasonably inferred - that there was advice that the conduct of either proceeding from outside Australia "would be both reasonable and practicable". The only evidence is that of Mr. Baker (para. 37) that an officer of the department informed him on 22 February, 1985 "that the Respondent considers that upon the basis of advices received from the Attorney-General's Department the Applicant can properly conduct Common Law proceedings from Turkey". The words "can properly conduct" do not support the claim in particular (1)(a) of Ground 2 that the advice to the respondent was that it would be "both reasonable and practicable" to conduct the proceedings from Turkey and there is nothing to suggest that the respondent considered that it was "reasonable and practicable". The respondent's department had asked (letter 17 August, 1984- see paragraph 13 above) the applicant's solicitors "why precisely" the applicant's presence was required and "for what period" and "why could (he) not return to Australia ... if ... required".
Ground 2(a) of the application also contained particular (1)(c)(iii) which read as follows :-

"(c) the Respondents took into account and acted upon the following matters :-

....

(iii) a misrepresentation and mis-statement of the submissions made by the Applicant's former solicitors to the Department as to the reasons why the Applicant's presence in Australia was required for the purposes of the workers compensation case and the common law claims."

In considering that particular it is convenient to deal also with similar matters appearing in particular (2)(d) of Ground 2(b) and also in particular (5) of Ground 3.

It was contended by the applicant that the letter from the applicant's solicitors, dated 4 September, 1984, (see paragraph 14 above) was not included in the material which was considered by the respondent in February, 1985 when making the decisions the subject of the present application. There is no direct evidence to support that contention.
However, the applicant submitted that the Court should infer that the material before the respondent did not include that letter. That submission was based upon the affidavit of Mr. Hewson, sworn 1 March, 1985, and in particular upon the fact that that affidavit did not expressly state that the letter of 4 September, 1984 was before the respondent at the relevant time. Whilst it is true that paragraph 9, upon which the applicant's counsel placed great reliance, does not expressly refer to that letter, it must be borne in mind that paragraph 9 does not on its face purport to set out all of the material that was before the respondent at that time; paragraph 7 of the affidavit does refer to the letter of 4 September, 1984. In my opinion it would not be proper to infer from the affidavit that the letter dated 4 September, 1984, which is exhibited to the affidavit, did not form part of the material before the respondent.
Even if, contrary to the opinion which I have just expressed, it were appropriate to draw that inference from the affidavit, it does not follow that the respondent Minister, in his consideration of the matter, did not examine the letter which was on the departmental file. In this connexion it must be borne in mind that the departmental submission dated 2 October, 1984, which was part of the material before the Minister at the time of the decision, after quoting from the letter dated 4 September, 1984, added "a copy of the solicitor's letter is at folios 66-67".
Accordingly, in my opinion, there is no reason to infer that the respondent failed to weigh the matters cited in the solicitors' reply of 4 September, 1984 against the departmental advice that "the applicant can properly conduct common law proceedings from Turkey." In any event the Minister was entitled to take into account all the matters which he properly considered to be relevant in reaching his decision. He was not under a duty to merely weigh the two views as to the difficulty or imossibility of conducting proceedings from outside Australia. As Sweeney and Woodward JJ. said in Minister for Immigration and Ethnic Affairs v Tagle (1983) 48 ALR 566 at p. 571 :-

"They (i.e. statements by the trial judge) should not be taken as a finding that all the personal circumstances of a prohibited immigrant have to be considered in all cases. They mean no more than that, in the circumstances of this case, where the Minister's delegate had material available to him from the Department and the prohibited immigrant, he should have looked at it (which he did), identified the circumstances (if any) in favour of the prohibited immigrant's case to stay in Australia, and given them such weight as he saw fit. Such circumstances should have been considered together with any policy or rule which had been determined in relation either to the particular type of case, or to cases of prohibited immigrants generally. All relevant considerations would have to be taken into account, and the policy or rule could not be applied automatically."

The Minister was not obliged to confine himself to considering the disadvantages to the applicant of conducting litigation from Turkey. He was not confined to considering whether it would be impossible on the one hand or extremely difficult on the other for the litigation to be so conducted. He was entitled, in my opinion, in considering the effect upon the applicant of that impossibility or difficulty, to do so in the light of "the interests of the community" (referred to in the departmental submission of 13 November, 1984). In my opinion, he was also entitled, as the respondent Minister said in his letter to Mr. Hand, to consider whether the grant of any further stay would "condone and encourage circumvention of the usual migration controls". In addition he was entitled, of course, to take into account any relevant history of the applicant's behaviour in Australia.
Particular (1)(b) of Ground 2(a) was that "irrelevant considerations were taken into account in that" the decisions were "based upon the assumption (now proved false) ... that the .. worker's compensation claim would be heard and determined on or before 28th Feburary 1985". However, there is nothing to suggest that the decisions were based upon an assumption that the claim would definitely be determined by that date. Doubtless there was an assumption that it was probable that the claim would have been determined by that date; the applicant's solicitors had themselves represented, in the letter, dated 19 December, 1984, to Mr. Hand, M.P., set out earlier, that "it would be safe to assume that there is a fairly high probability that the matter will be disposed of on that date". The respondent having acted upon that assumption, the applicant cannot gain any assistance from the fact that that "assumption" proved to be somewhat astray as an estimate of the date when the workers compensation claim would be determined. The applicant has failed to establish that the alleged irrelevant consideration was taken into account.
Particular 3(b) of Ground 2(c) (decision "so unreasonable") was also founded upon the alleged "false assumption" and particular 2(b) of Ground 2(b) was that the respondent failed to take into account, as a relevant consideration, "the risk that the claim would not be determined by" 28 February, 1985. For the reasons given in the preceding paragraph, neither of those contentions can succeed.
The matters referred to in particulars (1)(c)(i) and (ii) of Ground 2(a), which were added by leave during the hearing, have been dealt with in the course of dealing with particular (2) of Ground 1, relating to the applicant's rejection of settlement offers and his dismissal of legal advisers.
For the reasons already given there is no evidence of - nor any basis for an inference that there was - a failure to take into account either of the relevant considerations referred to in particulars 2(a) and (c) of Ground 2(b) or that the applicant's submissions had been misrepresented).
Particular (2)(f) of Ground 2(b) was that the respondent failed to take into accoun "the fact that the applicant was acting on advice from his other solicitor (Mr. Wilder) in not leaving Australia in April (1984) in accordance with (his) undertakings given to the Department". There are various difficulties in the way of this contention. The material does not establish that the respondent took into account the conduct (i.e. of failing to leave Australia) as constituting a breach of an undertaking. In any event the solicitor (Mr. Wilder), who had been giving the applicant (under the name Omar Soylamis) legal advice and had been acting for him in respect of his workers compensation claim since 4 May, 1983, was not told by the applicant that he (the applicant) had given an undertaking to the department that he would leave Australia on 23 April 1984 - see the evidence referred to in paragraph 9 above.
In addition that evidence of Mr. Wilder contradicts the statement in the letter of the applicant's solicitors, Messrs. Cash and Stone, dated 4 September, 1984 (upon which particular (f) is based) "that he had received advice from his solicitor not to leave the country until his case had been finalized". On Mr. Wilder's evidence the advice given was only that he should not leave "without first taking legal advice". The applicant took advice from Mr. Wilder on 23 April, 1984 but there is no evidence at all as to what that advice was. In any event, as the applicant had not told Mr. Wilder that he had given an undertaking to the department, there plainly was no advice that he could or should break his undertaking.
Ground 2(c) was that each decision "involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power". As to particulars (3)(a) and (b) of Ground 2(c), it will be apparent from what has been said as to particulars 1(a) and (b) of Ground 2(a), that no basis has been shown for these contentions. In my opinion, for reasons already given, there was no evidence of - nor any basis for an inference as to - the matters asserted in any of the particulars 3(a), (b), (c) and (d). It may be added that particular (3)(d) referred to the common law claim being likely to be heard in June 1985; however, that was not the fact at the time of the respndent's decisions on 15 Feburary, 1985. The proposed expedited hearing of the County Court claim only came about as a result of an application made after the commencement of these proceedings.
It may be added that, strictly speaking, the particulars given in 3(a), (b) and (c) of Ground 2(c) were not particulars of Ground 2(c) as they were said to be particulars that "the exercise of power ... is unreasonable." That is not a ground of review under the Judicial Review Act - see s. 5(2)(g) - and this Court has no power to review a decision simply on the ground that it is said to be "unreasonable". The Minister may well have concluded on the material that it was possible for the applicant to conduct the proceedings from outside Australia although at greater expense and inconvenience and with problems of communications - but that he had "been given sufficient consideration and the interests of the community now need to be given greater consideration" (per departmental submission dated 13 November, 1984). As the respondent expressed it in his letter, dated 18 February, 1985, to Mr. Hand, M.P., "to allow any further stay in Australia would be to condone and encourage circumvention of the usual migration controls". In the light of the evidence as to the material which was before the respondent, in my opinion there is no serious question to be tried as to whether the exercise of the power was so unreasonable that no reasonable person could have so exercised the power.
As to Ground 2(d) there is no evidence - and no material for drawing an inference - that any of the decisions involved an abuse of power. There is no evidence to support the allegations in particulars 4(a) and (b) that the respondent deliberately refrained from communicating the decisions or "determined not to communicate" them in writing and in my opinion such conduct by the respondent could not be inferred from the matters upon which Mr. Cavanough sought to rely.
Particular (4)(c) of Ground 2(d) was no longer correct as a matter of fact and was not pursued by the applicant. The factual assertion in particular (4)(d) of Ground 2(d) as to an alleged "false assumption", has been referred to earlier in dealng with particulars (1)(b) of Ground 2(a) and (3)(b) of Ground 2(c). It may be added that in any event that assertion, even if true, could not, in my opinion, constitute an "abuse of power".
Particulars (4)(e) and (f) of Ground 2(d) appear to relate to the deportation order made on 4 October, 1984 and a claim that it "had been varied" whereas the application relates to the decisions made in February 1985. In any event, on the material it can not be seriously argued that the deportation order had been varied or that it was "reinstated"; it did not require to be "reinstated". Accordingly there is no substance in particulars (e) and (f).
The s. 13 statement having been furnished during the hearing, the applicant's counsel did not pursue the claim (contained in particular (4)(c) of Ground 2(d) of the application) that the respondent had not provided that statement and was proposing to deport the applicant before providing such reasons.
The particulars of Ground 3 (see s. 5(1)(h) of the Judicial Review Act) were that the "decisions were based upon facts which did not exist or assumptions which were false". The matters relied upon in particulars (1), (2), (3) and (4) of Ground 3 are substantially the same as those under particulars (1)(a), (b) and (c)(i) and (ii) of Ground 2 as to which matters conclusions have been expressed earlier. Particular (5) as to alleged misrepresentation has also been dealt with earlier.
The remaining ground was in the following terms :-

"4. Each of the said decisions :-

(a) involved an error law;

(b) was otherwise contrary to law."

As to that ground Mr. Young said that he did not wish to advance any submissions additional to those already put in relation to the other grounds.

For the reasons already given the applicant has failed to show that there is a serious question to be tried in relation to any part of the application under s. 5 of the Judicial Review Act. Accordingly, the present application, under s. 15 of that Act, is dismissed.

[1985] FCA 226

22 MARCH 1985