Dallikavak v Minister for Immigration and Ethnic Affairs

[1985] FCA 374

Re: KADIR DALLIKAVAK
And: MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G77 of 1985
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.
Jenkinson J.
Pincus J.

CATCHWORDS

Administrative law - judicial review - deportation order - whether Minister has implied power to stay and/or confirm the operation of a deportation order - whether this is a reviewable decision - revocation of a deportation order.

Practice and procedure - appeal from an interlocutory judgment.

Migration Act 1958 ss.18,20

Administrative Decisions (Judicial Review) Act 1977 ss.3, 5 and 15

HEARING

MELBOURNE
#DATE 6:8:1985

ORDER

The appeal be dismissed with costs.

(Settlement and entry of Orders is dealt with in 0.36 of the Federal Court Rules.)

JUDGE1

The appellant, Mr. Kadir Dallikavak, is a deportee under the Migration Act 1958 ("the Act"). His appeal is brought by leave from an interlocutory judgment of the Federal Court constituted by a single Judge refusing to suspend or stay certain decisions said to have been made by the respondent on or about 15 February 1985. The appellant sought interlocutory orders restraining the respondent from giving effect to those decisions to allow him to pursue his application under s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for an order of review of the decisions. The learned primary Judge set out the facts of the case in some detail and we find it necessary merely to summarise them.

On 17 December 1980 the appellant entered Australia on a temporary entry permit which authorised him to remain for two months only. In breach of an undertaking to depart at the expiration of the permit, he remained in Australia and, in breach of a further undertaking, engaged in employment. On 7 March 1983 he was injured at his work and obtained weekly compensation payments for about a year. On 6 April 1984 the appellant was arrested by officers of the Department of Immigration and Ethnic Affairs. He then gave a further undertaking, namely to depart Australia for Turkey on 23 April 1984; he broke that undertaking also.

On 24 April 1984 the Minister issued a deportation order which was stayed by Smithers J. on 4 May 1984 and later revoked. On 9 May 1984 the appellant issued proceedings for workers' compensation in respect of the injury he had suffered and on 28 September 1984 sued in the County Court in respect of the same injury.

After considering, pursuant to an arrangement made in consequence of the proceedings heard by Smithers J., submissions made on behalf of the appellant, the Minister issued a second deportation order on 4 October 1984. No action to enforce the second order was taken until 15 February 1985. On that day the Minister decided, in effect, to enforce the deportation order and the appellant says that decision may be reviewed.

The application seeks a review, specifically, of decisions which are said to have been made under the Act and which are identified by the appellant as decisions:

(1) to deport the applicant from Australia;

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

(3) to require that the applicant be deported from Australia by 28 February 1985; and

(4) to take the applicant into custody.

The deportation order which is presently in force is that mentioned above as having been made on 4 October 1984. It was not that order which was sought to be identified in (1) above; the applicant does not attack that order in these proceedings. The alleged decision "to deport the applicant from Australia" was one said to have been made on 15 February 1985; on that day, it is said, the Minister decided to implement the deportation order. It should be noted, further, that counsel for the appellant did not concentrate his argument on the suggestion that the appellant should have been allowed to stay permanently in this country; rather, the point of the appellant's attack was to defer the deportation of the appellant, to enable him to attend to certain legal affairs mentioned below. We are not required to deal with the fourth decision since the Minister has released the appellant from custody and the appellant no longer seeks to have that decision reviewed.

The first question, as it seems to us, is to determine the precise legal significance of what is said to have happened on 15 February 1985. According to the argument on behalf of the appellant, his status until then was one not expressly dealt with in the Act, but created by implication, namely that of a person against whom a deportation order under s.18 of the Act subsisted but as to whom the order had been suspended. We understand the argument to be that until the order for suspension was removed, and replaced by a direction that the deportation order be carried out, the mandatory requirement of s.20 of the Act was inoperative. Sections 18 and 20 of the Act are as follows:

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

. . .

20. Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.

(2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order."

Here, according to the argument for the appellant, the deportation order which the Minister made on 4 October 1984, pursuant to s.18, did not, after its effect was suspended, have that legal effect which s.20, unequivocally as it seems to us, gives it. We can see no logical stopping place for the appellant short of the contention that s.20 should be read as if after the words "that person shall" there appeared the words "unless the Minister revokes or suspends the order, be deported accordingly". The words "or suspends" are not, of course, in the section.

While we do not deny the possibility, by a process of legal interpretation, of the creation of a status of which the Act says nothing, we think this Court should so hold only if the existence of that status clearly arises by necessary implication. The status to which we refer, that of a person against whom a deportation order is made, but who may not presently be deported because of a direction staying its effect, does not appear to us to be one in that category. That is, while it may be convenient from a number of points of view to imply that there is a power of suspension, we do not accept that the implication is necessary, in the strict sense of being something without which the express powers given cannot be exercised.

It is said on behalf of the appellant that the necessary implication arises from the power of revocation given by s.20, quoted above. Counsel for the Appellant points out that if the Minister is considering revocation, he may not have time to rech a proper conclusion unless he has a power of suspension. We suppose that the facts of the present matter illustrate this proposition; the deportation order in question was made on 4 October 1984 and more than four months elapsed before the "confirming" decision challenged by the appellant was made.

If one were to turn the suggested implication into an express amendment of the Statute, it would, presumably, take some such form as the following:

"Notwithstanding s.20, the Minister may suspend the operation of a deportation order while considering the question whether he should revoke such order and may at any time revoke such suspension."

It must often arise that it is convenient for a person having a power to decide a question to have power, also, to hold matters in status quo pending his consideration of the question. A pertinent example, in this very case, is that it is undoubtedly convenient for this Court to have power to stay the effect of the decisions of the Minister which are challenged pending a final resolution of the question of their legal correctness. But we are far from thinking that every power which Parliament confers upon a person to decide a question is subject to such an implication. The question whether, in addition to the power to order deportation and the power to revoke an order for deportation, the Minister should have power to suspend and, of course, to revoke the suspension appears to us one about which different views may rationally be held. Some might think it undesirable that, without any limit as to time, the Minister should be enabled to leave in a legal limbo persons against whom a deportation order is in force. It does not seem appropriate, however, for us to go into that question at any length, for we have come to the conclusion that considerations of that sort are a matter for Parliament and not for us. The detailed provisions of the Act relating to the granting of entry permits, the power to make an order for deportation and the co-relative power to revoke a deportation order and the restrictions that the Act imposes upon deportees and prohibited non-citizens, all suggest that there is no room for an implied power to suspend a deportation order. We are not prepared to make the implication suggested. Nor are we prepared to so treat the suggested decisions to refuse to suspend and to confirm the deportation order as a decision not to revoke the deportation order of 4 October 1984.

In arriving at this view we have received some assistance from the decision of Embury J. in the Canadian decision of In re Poll (1937) 3 W.W.R. 136. That concerned the construction of the Canadian Immigration Act 1927 which provided for the making of a deportation order and that "such person shall be deported forthwith . . .". Section 20 of our Act uses the expression "shall . . . be deported accordingly". In the Canadian case Embury J. said at pp.139-140:

"There is nothing in the Immigration Act, nor in any enactment which was brought to the notice of the Court, which gives the immigration authorities power to extend or suspend the period of a deportation order. That is, the Statute says he shall be deported forthwith. If the immigration authorities in their own wisdom say 'we are going to let this man stay,' that is of course their affair, but they have no power, as I see it, to make an order, in the face of this legislative enactment, to the effect that this man shall not be deported forthwith, that there shall be an order of deportation which they can call up whenever they see fit and under which they can then deport this man if they see fit at any time."

There was another point in the case of In re Poll, namely whether a deportation order could be abandoned and we are not to be taken as expressing any view about that. We would also comment on the assertion by Embury J. that if the immigration authorities choose to let a man against whom an order has been made stay that is "of course their affair"; that is a point on which we would reserve our opinion. We find it unnecessary to determine the precise legal consequence of failure to carry out a deportation order in the face of the statement by Parliament that a person against whom such an order has been made "shall . . . be deported accordingly". We decide merely that there is no express or implied power of suspension of a deportation order in the Act.

We do not think the argument for the appellant, as to the implied power of suspension, gains any assistance from the decision of the High Court in Znaty v. Minister for Immigration (1972) 126 C.L.R. 1. It was there held that the Minister "may determine the way in which a deportation order is to be carried out and may choose the vessel or aircraft in which the deportee is to leave the country" (p.8). It was also said that it is not "mandatory to place the deportee on the first 'vessel' which sails or which leaves the nearest airport after the arrest of the deportee" (pp.10-11). It may be suggested that there the High Court contemplated a power of suspension of the order. We do not read the remarks in that sense; there is an obvious difference, not only in a practical sense, but also juristically, between giving administrative directions as to the mode in which an order is to be carried out, on the one hand, and purporting to terminate the effect of the order, for the time being, on the other.

We have also acted on the view that there is a general disinclination manifested in the authorities to make implications in statutes, unless it is strictly necessary to do so. Wynn-Parry J. In re Meux. Gilmour v. Gilmour (1958) 1 Ch. 154 at p.161 said:

"In this connexion it is to be remembered that the court is always hesitant to read words into a statute. For instance, in Tinkham v. Perry (1951) 1 K.B. 547, the Master of the Rolls said at p.549: 'Words plainly should not be added by implication into a statute unless it is necessary to do so to give the language sense and meaning in its context . . .' ."

We are of the view that because the Minister had no power, under the Act, to suspend the deportation order or to confirm it there is no reviewable decision for the purposes of s.5 of the Judicial Review Act. The expression used in s.5, "decision to which this Act applies", is defined in s.3(1) so as to confine its meaning to a decision "under an enactment". Here, the enactment gave no effect to any purported suspension of the deportation order and, equally, the removal of any purported suspension had no effect, under the Act.

We would add that if the Minister, having made a deportation order, subsequently becomes aware of circumstances which lead him to doubt the correctness of his order, or to come to the view that its correctness might need lengthy re-examination, he may revoke the order. If that happened, the person affected would cease to be a deportee under the Act but would remain a prohibited non-citizen and be subject to all the restrictions imposed by the Act on persons of that status. If on re-examination the Minister is of opinion that the order should again be made, no new grounds are necessary, in our view: see the decision of Smithers J. In re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 A.L.R. 432 at pp. 441-442. See also sub-section 33 (1) Acts Interpretation Act 1901. The principal application does not mention the power to revoke, nor allege a refusal to exercise it. Although the question of the nature of the decision sought to be reviewed was discussed at the hearing of the appeal, no amendment was sought. Further, the thrust of the argument advanced was not an attack on the deportation order at all, but was, rather, a contention that the appellant should have been allowed to stay for a limited period. We do not think the application should be treated as if it were one seeking a review of a failure to revoke the deportation order.

If the decisions challenged were to be treated as a decision by the Minister to refuse to revoke the deportation order made on 4 October 1984, that decision would be a decision "under an enactment" pursuant to the Judicial Review Act. Nevertheless, even on that assumption, we would dismiss the appeal.

The substance of the submissions made by counsel for the appellant was that in making the two decisions of 15 February 1985, that is the decision to confirm the deportation order of 4 October 1984 and the decision that the appellant be deported from Australia by 28 February 1985, the Minister took into account and was influenced by submissions that:

"(a) the Appellant had dismissed solicitors and counsel engaged by him;

(b) the Appellant had rejected offers of settlement;

(c) in the premises, the Appellant had been given sufficient opportunity to conduct his claims for compensation and it would not be appropriate to allow him any more time."

There are a number of unusual features about this case. Representations on behalf of the appellant were made to Mr. G.L. Hand, a Member of the House of Representatives, to intervene on behalf of the appellant. Mr. Hand did this by telegram and letter in October and November 1984. By letter dated 18 February 1985, the Minister wrote to Mr. Hand setting out a large number of matters relating to the appellant. The last two paragraphs of the letter are set out:

"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 an adequate opportunity to pursue his claim and given such (sic) 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. I am sorry not to have better news for Mr Dallikavak."

In making the decisions and in writing that letter, the Minister had acted upon a report dated 8 February 1985 given to him by an officer of the Department. The report contained two recommendations which were approved by the Minister. The two recommendations were:

"(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."

After the present proceedings had been instituted, the Minister gave a statement in writing under s.13 of the Judicial Review Act. Despite the fact that that statement was filed as is required by 0.54 r.3 of the Rules of Court, at the hearing of the application for interlocutory relief, counsel for the appellant objected to the trial Judge making any use of that statement. The trial Judge upheld that objection. We do not express any opinion on whether that ruling was correct or not. In the result, the trial Judge drew inferences from what was contained in the letter and telegram from Mr. Hand and an accompanying letter which had been sent by the appellant's solicitors to Mr. Hand and had been forwarded by Mr. Hand to the Minister, and from what was contained in the letter from the Minister to Mr. Hand and in the report to the Minister. Those inferences were clearly open to the trial Judge. It is immaterial that this Court may not have drawn the same inferences. It must be remembered that this is an appeal from an interlocutory order and the appeal court is not rehearing the application for interlocutory relief pending the hearing and determination of the application.

The position of the appellant can be summarised. The deportation order against the appellant is in existence. The appellant is conducting litigation in Australia. Through Mr. Hand, he requested the Minister to reconsider the deportation order and to grant a stay of the deportation order pending the completion of that litigation. On 15 February 1985, the Minister refused to grant a stay of the deportation order. The appellant is reviewing that decision and the decision to refuse the stay. He is seeking an interlocutory order preventing the deportation of the appellant under the order of 4 October 1984, or if necessary, the decision of 15 February 1985 pending the hearing and determination of his application under the Judicial Review Act.

The appellant submitted, rightly as it seems to us, that the learned primary Judge had two sources of power to suspend or stay the decision sought to be reviewed. They were s.15 of the Judicial Review Act and s.23 of the Federal Court of Australia Act 1976. Whichever statute is relied on, however, the appropriate test for present purposes is that set out by a Full Court of this Court in Epitoma Pty. Ltd. v. Australian Meat Industry Employees' Union (No. 2) (1984) 3 F.C.R. 55. There the Court said at p.58 "In an application for an interlocutory injunction, the court must inquire first whether there is a serious question to be tried". In the present case, the trial Judge held there was no serious question to be tried. Counsel for the appellant confined his attack upon the decisions of the Minister to two points. These were whether the Minister had ignored relevant considerations, and whether he had taken irrelevant considerations into account. More particularly, counsel argued that the Minister wrongly took into account allegations that the appellant had rejected offers of settlement and dismissed his solicitors and failed to take into account the practical difficulties of conducting litigation from Turkey. We do not think either submission is without substance. As to the question of offers of settlement and dismissal of solicitors, we can see nothing in the material to support a positive conclusion that in either respect the appellant acted other than reasonably and we do not see any ground on which those acts of the appellant could rationally have been urged against his case. On the other hand, unfortunately for the appellant, it does not appear that the Minister, in making the alleged decision to confirm the deportation order or revoke the suspension, relied upon the consideration just mentioned.

As to the difficulty of conducting litigation from Turkey, we are inclined to think that a rather one-sided view of the matter was placed before the Minister. Yet, again, there is really no evidence that the Minister himself looked at this aspect unfairly or that he was unconscious of the fairly obvious problems which would be encountered as to the litigation concerning the appellant's injury.

The High Court in Adam P. Brown Male Fashions Pty. Ltd. v. Philip Morris Incorporated (1981) 35 A.L.R. 625 at p.629 spoke as follows about the test applicable to the appellant here, whose position we think to be analogous to that of one applying for an interlocutory injunction:

"An interlocutory order for an injunction is a matter of practice and procedure . . . Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively . . . For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria."

Their Honours went on to quote the familiar statement of Sir Frederick Jordan In re The Will of F.B. Gilbert (1946) 46 S.R. (N.S.W.) 318 at p.323, referring to the potentially disastrous results of interfering with orders concerning matters of practice and procedure.

In the present case, we must confess that we would have taken a rather more favourable view of the submissions which were placed before the Minister than the trial Judge. That is, we think that those submissions slanted the issues against the appellant in a way to which he was entitled to take exception. However, we are far from thinking that the wrong emphasis, as we believe it to be, on matters adverse to the appellant, vitiates the actions taken by the Minister, or that there is any reasonable prospect of its being held to do so. More importantly, we consider that the finding of the trial Judge that there was no serious question to be tried under s.5 of the Judicial Review Act in relation to any part of the application, was open to him and we cannot say that the trial Judge was wrong. We would, had we come to the conclusion that there were decisions under an enactment capable of being challenged under the Judicial Review Act, have taken the view that not enough has been shown to warrant interference with the way in which the trial Judge determined to exercise his discretion.

The appeal should be dismissed with costs.

JUDGE2

Appeal against an order dismissing an application for suspension of the operation of administrative decisions until the determination of applications for orders of review in respect of those decisions.

On 4 October 1984 a delegate of the respondent Minister made an order that the appellant be deported. The respondent Minister was alleged in the originating application for orders of review to have made on 15 February 1985 a decision to confirm the delegate's decision and a further decision that the deportation order be carried into effect not later than 28 February 1985. An application for orders of review in respect of those two, and other, decisions having been instituted, an order was sought having the effect of preventing the appellant's deportation until the applications for review should have been heard and determined. Keely J. refused to make any such an order. No order of his Honour is to be found in the appeal book, but his reasons for judgment conclude with the sentence: "Accordingly, the present application, under s.15 of that Act, is dismissed." It is to s.15 of the Administrative Decisions (Judicial Review) Act 1977 that his Honour referred; and it is from the order thus pronounced that this appeal is brought. The decisions specified in the application for orders of review are alleged to have been made "on or about 15th February 1984", but 1985 must have been intended. The impugned decisions include a decision "to deport the applicant from Australia", but the only deportation order extant when the application was filed was the order made on 4 October 1984, the decision to make which order is not the subject of an application for an order of review. It may be that s.15 would not have authorised an order suspending the operation of, or staying proceedings under, the decision taken on 4 October 1984 to order the appellant's deportation, and that the appellant would have had to invoke exercise of the power conferred by s.23 of the Federal Court of Australia Act 1976. (See Rifki v. Minister for Immigration and Ethnic Affairs (1983) 46 A.L.R. 301; Bercove v. Hermes (1983) 51 A.L.R. 105.)

It was submitted to Keely J. and to this court on the hearing of the appeal that the evidence established that there was "a serious question to be tried", on the hearing of the application for review, whether the respondent's decisions were vitiated by error of the kind specified in s.5 of the Administrative Decisions (Judicial Review) Act 1977. It was to the correctness of that submission that Keely J. addressed himself and he dismissed the application made to him because he concluded that the submission should be rejected. His Honour said, speaking of an 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 FCR 87 at pp. 91-92. 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."

I do not consider that Faingold v. Zammit provides authority that in all circumstances an applicant for an order under s.15 of the Administrative Decisions (Judicial Review) Act 1977 must establish that there is "a serious question to be tried" in order to succeed. But neither party to the appeal suggested that Keely J. had not correctly stated the criteria by reference to which the application before him should be determined. And in the particular circumstances of the case it was in my opinion an appropriate mode of exercising the discretionary power conferred by s.15 that the learned judge should have required, as a condition of acceding to the application, that the applicant establish that there was "a serious question to be tried." The circumstances to which I refer were unusual. A request, by notice in writing dated 22 February, was made to the respondent that he furnish in respect of his decisions a statement in writing of the kind for which s.13 of the Administrative Decisions (Judicial Review) Act 1977 makes provision. The respondent complied with that request on 11 March 1985. His statement was filed by the appellant, in compliance with Order 54 Rule 3(1)(b) of this court's rules, before the hearing of the application by Keely J. had concluded. But tender of the statement by counsel for the respondent was, upon objection, rejected by Keely J., for reasons which his Honour gave. No evidence was tendered, either of the respondent or of another deponent swearing as to his belief upon information by the respondent, that the statement did express the respondent's reasons for his decisions, and Keely J. founded his rejection of the tender on the conclusion that in those circumstances the document was not admissible against the appellant under the rules of evidence. No submission was addressed to this court on the hearing of the appeal that his Honour's ruling was erroneous. Lacking the benefit of argument, this court ought not in my opinion to examine for itself the correctness of the ruling. Assuming the correctness of the ruling, the application made to Keely J. fell for decision in circumstances in which the appellant abstained from availing himself of a means provided by the Administrative Decisions (Judicial Review) Act 1977 to adduce evidence of facts relevant to the exercise of the discretionary power he was seeking to invoke. For it could hardly be doubted, having regard to the common law history in the context of which the enactment of s.13 of that Act must be considered, that the document would have been admissible, if tendered by the appellant, merely upon proof of its receipt by him in response to his request under that section. Nor could it be doubted that the document would contain matter relevant to the exercise of the power invoked : the grounds of the application for an order of review and the submissions of counsel for the appellant in support of the application for a stay of proceedings under the decisions included assertions that the respondent had taken irrelevant considerations into account and had failed to take relevant considerations into account in making the decisions, and it was common ground that the likelihood of success in the application for an order of review was a consideration relevant to the exercise of the power to stay. It is for those reasons that, notwithstanding the disadvantages to the appellant which a refusal of the application for stay might have been expected to cause, I think Keely J. was justified in requiring, as a condition of granting the application, that there be established "a serious question to be tried." But I do not regard that criterion as invariably appropriate in the exercise of the discretionary power conferred by s.15. There will be occasions when the exercise of the power is sought at a time when the refusal (or the grant) of a stay will have grave consequences, but it is impossible to form any view as to whether there is such a question to be tried. There will be cases in which the prejudicial consequences for the applicant of refusal of a stay (or for the community of grant of a stay) are of a kind or degree outside the contemplation of those who framed the criteria governing the grant of interlocutory injunctive relief in litigation concerning proprietary and contractual interests. The observations of Dawson J. in A and Ors. v. Hayden and Ors. (1984) 56 A.L.R. 73 at 79 and of McLelland J. in Appleton v. Tomasetti (1983) 50 A.L.R. 428 at 434-436 are in my opinion apt in their application to the general discretionary power conferred by s.15:

". . . a court ought not to be misled by an overstrict application of verbal formulae to depart from its primary duty to do complete justice in the cause" (per Dawson J.) "It has often been said that when a court is invested by statute with a general discretionary power, rigid rules or fixed formulae cannot be prescribed to limit the judicial discretion to do that which is just between the parties in the circumstances." (per McLelland J.)

In my opinion the criterion suggested by Keely J., in Perkins v. Cuthill (1981) 52 F.L.R. 236 at 258, for the exercise of that power - "s.15(1)(a) requires an applicant to satisfy the court that reasons or circumstances exist which make it just that the court should make the order sought" - is a better guide than verbal formulae derived from commercial and property litigation.

I respectfully agree in the opinion expressed by Northrop and Pincus JJ. that no power, except a power of revocation, is to be implied as residing in the respondent to qualify the legal status or effect of a deportation order. It follows that, as counsel for the appellant conceded at an early stage in the presentation of his argument, the description in the originating application of what the respondent decided on 15 February 1985 - "to confirm the deportation order" - was inapt, and leaves open the suggestion that the decision was not one "made under an enactment" within the meaning of that phrase in the definition of the expression "decision to which this Act applies" in s.3(1) of the Administrative Decisions (Judicial Review) Act. But in substance, if not in terms, the power which was invoked on behalf of the appellant was the power which is to be implied, from the language of s.20(1) of the Migration Act 1958, as residing in the respondent to revoke the deportation order. The source of the power is that enactment, and a decision by the respondent as to whether or not is should be exercised is in my opinion a decision "under an enactment". Counsel for the respondent did not submit that any of the decisions made on 15 February 1985 was not a decision "made under an enactment". There is in evidence a letter from the respondent informing a member of Parliament of his decision which contains this statement: "In all the circumstances, I cannot see sufficient justification to revoke the deportation order." It may be that, if on that date the respondent had decided that the appellant ought to be allowed to remain in Australia for a few more months, but ought not to be considered, as the member of Parliament had suggested he might be, for acceptance as a permanent resident of Australia, the decision might have been implemented by a Ministerial direction to his officers, rather than by revocation of the deportation order and the making of a further deportation order later. Let it be supposed - I express no opinion - that such a course would have been unauthorised by law. Yet it appears clearly enough, in my opinion, that a decision whether or not to revoke the deportation order was made that day. In substance that is one of the decisions in respect of which an order of review is sought. If the language of the originating application does not comprehend that decision, that defect can, and should, be cured by amendment, in my opinion.

There is in evidence, tendered by counsel for the respondent without objection, a Departmental officer's submission to the respondent which concludes thus:

"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. If you agree with the recommendations the attached draft letter of reply to Mr. G. Hand M.P. is for your consideration."

The recommendations are marked by the respondent as approved and the draft letter was signed by the respondent and sent to Mr. Hand. Other documents from the Departmental file are also in evidence. It was submitted on the appellant's behalf that a consideration of all those documents justified inferred findings that the respondent had been influenced to reach erroneous conclusions by reference to facts which the officer had suggested in his submission led to those conclusions. The officer's submission, other than the part already quoted, is in these terms:

"PURPOSE To submit for your consideration the personal circumstances of Mr Dallikavak together with representations from Mr G. Hand M.P. and Riggall Ring & Co, solicitors, and to recommend that the decision to deport Mr Dallikavak be maintained. BACKGROUND Mr Dallikavak is an overstayed visitor who engaged in unlawful employment (under an assumed name), sustained an injury on the job and is currently pursuing a workers compensation claim. Annex 'A' outlines the circumstances considered by your delegate on 4/10/84 when he signed an order for Mr Dallikavak's deportation. Annex 'B' reported subsequent developments to your predecessor Mr West (this submission was originally put to the Secretary who referred it to Mr West and was returned to the department with no annotation or endorsement.) However, the Minister's office informed the Department orally that the matter be left until Mr Hand MP had provided further representations. The Workers Compensation Board, Victoria, has fixed the date of hearing of Mr Dallikavak's claim on 22/2/85. REPRESENTATIONS Mr G. Hand M.P. has requested that Mr Dallikavak be released from custody and granted permanent residence (annex 'C' refers). Mr Dallikavak was released from immigration custody on 28/11/84 and placed on a reporting arrangement. Riggall Ring & Co, solicitors, state that Mr Dallikavak would be disadvantaged if the deportation order is not revoked prior to the Compensation Board hearing on 22/2/85 (letter at Annex 'D' refers). Furthermore, 'if deportation is effected our client will be unable to pursue his claim for damages in the County Court'. ISSUES Mr Dallikavak is a prohibited non-citizen who has a wife and child in Turkey Mr Dallikavak does not fulfil any of the conditions of section 6A of the Migration Act for consideration for permanent residence and a deportation order was signed against him on 4/10/84 Mr Dallikavak engaged in unauthorised employment and suffered an injury to his back in March 1983. Between 7/3/83 and 23/3/84 he received $11,000 in compensation payments. The payments ceased in March 1984 and Mr Dallikavak instituted proceedings in the Workers Compensation Board. At the Compensation Board hearing on 17/10/84, Mr Dallikavak refused a settlement offer of $1,000 and dismissed his solicitors

at the next Compensation Board hearing on 26/11/84 Mr Dallikavak rejected a $5000 settlement against the advice of solicitors. As a consequence Legal Aid withdrew further assistance to Mr Dallikavak

Riggall Ring & Co (the third firm of solicitors to represent Mr Dallikavak) state that, following the Compensation Board hearing of 22/2/85, there was a strong possibility of a common law action which would take up to 2 years to resolve. the solicitors claim that the existence of the deportation order against Mr Dallikavak would place him at a disadvantage at the Workers Compensation Board hearing. Comment: the decision to deport is one based on considerations relevant to the Migration Act 1958 and should not be decided solely by the coincidental advantage or disadvantage which may accrue to parties in compensation cases. It is submitted that the Worker's Compensation Board is in the best position to deal with this matter insofar it relates to the matter of compensation. the solicitors claim that Mr Dallikavak will be unable to pursue his common law claim is contrary to the facts. Mr Dallikavak's claim could be pursued in his absence overseas. during the past 8 months Mr Dallikavak has refused two offers of settlement, dismissed legal counsel on one occasion and lost the services of another solicitor. It would be reasonable to conclude that Mr Dallikavak has been given sufficient consideration."

It was submitted - I think with some justification - that the last paragraph of what has been quoted would suggest that the author of the Departmental submission regarded the rejection by the appellant of offers of settlement and the termination of retainers as circumstances relevant to the question whether the appellant had had a sufficient opportunity to bring his claim under the Workers Compensation Act (Vic.) to a conclusion. It was further submitted, in my opinion correctly, that those circumstances could not be accorded any relevance to that question unless a great deal of further information about the claim and its prosecution, none of which was shown to have been known to the author of the document or to the respondent, were taken into consideration. To justify the inference that the respondent had himself regarded those circumstances as giving assistance on the question, counsel for the appellant relied upon the terms of the letter to Mr. Hand which he signed. That letter reads: "Thank you for your representations of 26 October 1984, concerning Mr Kadir Dallikavak who is a prohibited non-citizen and the subject of a deportation order. Mr Dallikavak arrived in Australia as a visitor on 17 December 1980 and was issued on arrival with a temporary entry permit authorising his stay for one month. Persons applying to visit Australia normally sign undertakings overseas that they will not seek permission to settle in Australia, 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. Deportation arrangements for Mr Dallikavak's departure on 9 May 1984 were cancelled in obedience to a Federal Court injunction. It was at this juncture that the department became aware that Mr Dallikavak had an outstanding claim under Workers Compensation. In fact the Workers Compensation Claim was filed on the former employer of Mr Dallikavak on 7 May 1984. On 8 August 1984 in the Federal Court Mr Dallikavak's solicitors agreed to discontinue litigation provided the Minister's delegate considered Mr Dallikavak's case afresh. The solicitor's subsequently advised that the final hearing of Worker's Compensation proceedings were listed before the Workers Compensation Board on 11 October 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 Board 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 Australian 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 more than an adequate opportunity to pursue his claim and given such 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. I am sorry not to have better news for Mr Dallikavak."

It was submitted that the letter justifies an inference that the respondent considered that the rejection of offers of settlement and the dismissal of solicitors were circumstances supporting his conclusion that "Mr. Dallikavak . . . . . . has already been granted a reasonable amount of time, in the circumstances, to personally pursue his claim here." It was submitted that the inference could be more confidently drawn because of the respondent's failure to give evidence contradicting it. The "plain commonsense", as Windeyer J. called it in Jones v. Dunkel (1959) 101 C.L.R. 298 at 321, of inferring from a party's failure to give evidence on a subject of which he has knowledge that his evidence would not help his case, yields to explanation, as that learned judge pointed out. Without evidence, judicial notice of notorious fact might suggest an explanation of this respondent's failure to expose himself to the risk of spending time in a witness box, namely that he had other duties which claimed the time. Assuming - but without expressing any opinion - that, notwithstanding his compliance with a request under s.13, the failure of the respondent Minister of State to give evidence on the hearing of an interlocutory application under s.15 may be used in the way that the unexplained failure of a party in other civil litigation to give evidence may be used, I am yet not persuaded to draw the inference suggested. I am not persuaded that a Minister of State ordinarily peruses a letter of the kind which had been drawn for this respondent's approval by a Departmental officer with the care and attention which it is necessary to impute to the respondent if the inference is to be drawn. (I have assumed, but without deciding, that on an interlocutory appeal such as this a court armed with the power conferred by s.27 of the Federal Court of Australia Act 1976 to draw inferences of fact may exercise that power with the freedom advocated in Warren v. Coombes (1979) 142 C.L.R. 531.)

It was submitted that the evidence showed that the respondent had not been furnished with a statement on the appellant's behalf, contained in a letter to the respondent's Department from solicitors who had been acting for him, of the reasons why it was necessary for the effective conduct of the appellant's personal injury claims that he be in Australia until the claims had been heard; and that the respondent had been in consequence deprived of the opportunity to give proper consideration to the real question for his decision on 15 February 1985. Those parts of the Departmental submission to the respondent which purported to summarise the matters contained in the solicitors' letter presented a quite inadequate and misleading account of the difficulties which the appellant's removal from Australia would occasion, it was submitted.

Neither the solicitors' letter nor the Departmental submission seems to me to afford a very satisfactory statement of the considerations for or against the proposal that the appellant be outside Australia until the pending legal proceedings in respect of his injuries should come to hearings. But it was not submitted that the respondent would have been left without an adequate statement of the considerations in favour of the appellant's presence in Victoria during that period if the respondent had studied the letter. For the reasons given by Keely J. a conclusion that the respondent did not consider the letter is not justified by the evidence. Nor is there in my opinion a basis in the evidence for a conclusion that the respondent failed to pay due regard to the considerations, for and against removing the appellant from Australia while those proceedings were pending, which the material before him and his own reflections and experience furnished.

The evidence does not suggest that the respondent contemplated that his decision not to revoke the deportation order implied an intention to deny the appellant access to the Workers Compensation Board or to the County Court of Victoria when either of the legal proceedings should come on for hearing.

I would dismiss the appeal with costs.