Dean, Allan Kendrick v Woodward, Lionel Barrie

[1984] FCA 365

Re: ALLAN KENDRICK DEAN
And: LIONEL BARRIE WOODWARD
No. WA G101 of 1984
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Immigration - judicial review - decision to deport probibited non-citizen - application for suspension of decision - whether application within prescribed time - when time begins to run- whether just to suspend decision - requirement to observe rules of natural justice - consideration of any prejudice and merits - application arguable

Administrative Decisions (Judicial Review) Act 1977 ss.5,11,13,15

Migration Act 1958 ss6, 6A, 16, 18

HEARING

PERTH

#DATE 8:11:1984

ORDER

1. The decision of the respondent made 21 September 1983 to deport the applicant from Australia be suspended until the determination of the application or until further order.

JUDGE1

The applicant has applied under the provisions of the Administrative Decisions (Judicial Review) Act 1977 to review a decision of the respondent made 21 September 1983 to deport him from Australia.

1. Yesterday evening I heard submissions from counsel in support of and in opposition to an application for a suspension of the decision until determination of the substantive application. The urgency of the matter lies in the fact that the applicant is due to be discharged from Canning Vale Prison today and on discharge to be deported to New Zealand.

2. The respondent did not contend that the decision to deport the applicant made under s.18 of the Migration Act 1958 on the basis that the applicant is a prohibited immigrant is not one susceptible of review under the provisions of the Judicial Review Act. Equally the applicant did not challenge the proposition that, having regard to ss.6 and 16 of that Act, he is a prohibited immigrant (the new terminology of the Act is prohibited non-citizen).

3. The respondent submitted that the application, filed 2 November 1984, was made outside the time limits imposed by s.11 of the Judicial Review Act and that an extension of time is required before the Court may deal with the substantive application. Counsel did not submit that, in the absence of an extension, the Court could not exercise its powers under s.15 to suspend the operation of a decision or stay proceedings thereunder.

4. Counsel for the applicant contended that no extension of time was necessary for the application had been lodged within the prescribed period. As already mentioned the deportation order issued on 21 September 1983. There is no evidence as to when service of the order was effected on the applicant but, through his counsel, the applicant acknowledged that it took place in October 1983 or thereabouts. However the applicant relied upon para (b)(ii) of sub-s.11(3) of the Judicial Review Act, contending that a statement of reasons for the decision was sought by letter dated 19 September 1984 and declined by letter of 8 October, the latter date being within 28 days of the lodging of the application.

5. The respondent argued that the deportation order itself constituted a statement of reasons and compliance with para (a) of sub-s.11(3), hence time ran from service of the order on the applicant. I do not accept this. The deportation order does not set out findings on material questions of fact nor does it refer to the evidence on which any such findings were based or the reasons for the decision. It must be remembered that the power to deport in s.18 of the Migration Act is a discretionary power so that the person who makes a decision to deport must bring his mind to bear on a range of relevant considerations. It may be noted that in Tagle v. Minister for Immigration and Ethnic Affairs (1983) 46 ALR 379 the Minister's delegate furnished a detailed statement of reasons for a decision to deport under s.18. See also Kioa v. Minister for Immigration and Ethnic Affairs (unreported decision of the Full Court of the Federal Court, delivered 3 October 1984).

6. But there is another difficulty facing the applicant. Paragraph (b)(ii) of sub-s.11(3) of the Judicial Review Act relates to the situation of a person who makes a request for a statement of reasons in accordance with sub-s.13(1). Section 13 itself requires that a request be made within 28 days of the furnishing of a written decision. That time has long since passed.

7. The respondent submitted that the letter of 19 September 1984 was not a request by the applicant but was merely a letter written by an acquaintance of his. There is evidence in the affidavit sworn by the applicant that the letter was written on his behalf; the respondent's answer is not before the Court and I do not know on what basis the request was declined.

8. It is apparent that the question whether the application under the Judicial Review Act was made within the prescribed period requires further evidence and examination. But on the material presently available to the Court I am prepared to assume, in the applicant's favour, that an extension of time is not required.

9. Before the Court will suspend the operation of a decision under review the applicant must satisfy it that reasons or circumstances exist which make it just to make the order sought. The reasons or circumstances need not be special or exceptional (Perkins v. Cuthill (1981) 34 ALR 669 at 671).

10. Whether it is just to suspend the present decision involves a consideration of the consequences for the applicant if there is no suspension, of any prejudice to the respondent by reason of a suspension and some regard to the merits of the application. That regard will necessarily be limited in its scope at this stage. But if, for instance, it is apparent that an application for review has no prospects of success it is hard to see how the applicant can persuade the Court that it is just to suspend the decision.

11. The applicant contended that in making the decision there was a breach of the rules of natural justice and an improper exercise of power. This is a reliance upon paras (a) and (e) of sub-s.5(1) of the Act. Paragraph (e) is amplified by sub-s.(2) which identifies a number of matters capable of constituting an improper exercise of power. The applicant relied upon para. (b) of that sub-section - "failing to take a relevant consideration into account in the exercise of a power".

12. The breach of the rules of natural justice alleged is that the applicant was not told of his right to put a case for remaining in Australia to the Immigration Review Panel nor was he told of any other right of review or given any opportunity for a hearing. Counsel for the respondent said that the applicant was not entitled to the benefit of this panel which is a non-statutory body. But he was not able to tell me why this was so.

13. While para. (a) of sub-s.5(1) of the Judicial Review Act speaks of a breach of the rules of natural justice, neither that section nor any other provision of the Act requires that the rules of natural justice be observed in the making of a decision. Any obligation to observe those rules in regard to the making of a particular decision must be found outside the Act. It would seem to be well settled that ordinarily the rules of natural justice do not apply to the exercise of the power under s.18 of the Migration Act to deport a prohibited immigrant. See the decision of the Full Court in Smith v. Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551 and the cases referred to by Sheppard J. in Karunakaran v. Minister for Immigration and Ethnic Affairs (unreported decision delivered 30 July 1984).

14. It may be, as Sheppard J. pointed out in Karunakaran at p.17 that:
    
    

"the case of Haj-Ismail establishes that in

some circumstances factual considerations may raise an obligation in the Minister to afford a person he proposes to deport an opportunity to be heard before making his decision".

This was a reference to Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 ALR 341 in which there is a suggestion in the judgment of Bowen C.J. and Franki J. that the rules of natural justice may be applicable where the conduct of the Minister is such as to give rise to a legitimate expectation on the part of the prohibited immigrant that he may be permitted to remain in this country.

1. While that is not the case here, I cannot, on the material before me, dismiss the applicant's complaint concerning the Immigration Review Panel as entirely without substance.

2. The relevant consideration which it is said the respondent failed to take into account is the applicant's homosexuality. The argument is put in several ways. It is said that "his rehabilitation" is more likely in this country where homosexual relationships have been decriminalised in five jurisdictions whereas in New Zealand, the applicant's country of origin, such relationships remain unlawful. It is said that the respondent failed to take into account the "likely future personal circumstances" of the applicant in this country as contrasted with his circumstances should he be deported. It is not apparent from the ground as formulated whether this raises matters other than the applicant's homosexuality. Then it is said that the crimes of which the applicant has been convicted and for which he was sentenced to imprisonment, before his entry to this country, arose from his homosexuality. I am not sure of the relevance of this since there is no suggestion that the applicant will not continue to be a practising homosexual. Perhaps the implication is that they would not have been offences in this country. On that matter I make no comment.

3. It is not appropriate to express a firm view as to the relevance or weight these considerations should carry and whether the respondent failed to have regard to them. But the applicant has raised an arguable case in this regard; I put it no higher than that.

4. In his affidavit the applicant has referred to s.6A of the Migration Act which provides for the grant of an entry permit to an immigrant under certain conditions. One condition (para (e) of sub-s.6A(1)) relates to the holder of a temporary entry permit. The applicant wishes to argue, by amending his application, that he is eligible for the grant of an entry permit under s.6A if he can obtain a temporary entry permit and to argue further that the respondent acted on incorrect advice in this regard.

5. In all the circumstances I am prepared to suspend the decision under review until the determination of the substantive application or until further order. I do so on the basis that a refusal will result in the applicant's immediate deportation and, in practical terms, the end of any opportunity to present his case for review of the respondent's decision. On the other hand there is no suggestion that the respondent will suffer any prejudice if a suspension is granted. Finally the applicant has shown, through counsel, that his application is arguable.

6. I am prepared to give directions to ensure an early hearing of the substantive application but I shall hear from counsel in this regard.