Dezfouli, G. v Minister for Immigration & Ethnic Affairs

C A T C H W O R D S

ADMINISTRATIVE LAW - Deportation - Natural justice - refusal to accord applicant status of refugee - whether adequate opportunity given to applicant to submit information.

Administrative Decislons (Judiclel Review) Act, 1977

v. Minister for Immiqration and Ethnlc Affairs

(1985) 6 2

R.L.R. 321

-	R. v. Thames Magistrates’ Court;	Ex parte Polemls Cl9741	1 W.L.R.
1371
SPENDER J.
BRISBANE 3 SEPTEMBER, l986

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

)	QLD. G123 of 1986

GENERAL DIVISION

BETWEEN:

GHOLAMREZA DEZFOULI

Applicant

AND:

THE MINISTER FOR IMMIGRATION	S
ETHNIC AFFAIRS

Respondent

DATE JUDGMENT	DELIVERED:	3 SEPTEMBER 1986
COUNSEL :

. f o r the applicant

Mr. L. Boccabella Instructed

by Mr. S. Maslnello of Glven

& Maslnello

Mr. D. O’Gorman and Ms.

~	f o r the respondent

Treydt of Australian

Government Sollcltor.

P. APPLEGARTH

ASSOCIF-TE TO SPENDER J.

IN THE FEDERAL COURT OF AUSTRALIA

) )

PUEENSLAND DISTRICT REGISTRY

)	QLD. G123 of 1986

)

DIVISION

GENERAL

)

BETWEEN :

GHOLAMREZA DEZFOULI

Applicant

AND:

THE MINISTER FOR IMMIGRATION	&
ETHNIC AFFAIRS

Respondent

MINUTES OF ORDER

JUDGE MFXING ORDEX:	SPENDER J.
DATE OF ORDER:	3 SEPTEMBER, l986
WHERE MADE:	BRISBANE

THE COURT ORDERS

THAT:

The operation of the

declslon of the delegate of the

Minister to deport the

appllcant be suspended

untll the

determination of these proceedings or further earlier order.

2 . The appllcant be released from detentlon on conditlon that:-

(a)	at 9.30 a.m. every day, Monday to Friday, he report to the Officer-in-Charge, Department of Immigration & Ethnic Affairs, Level 1, 167 Eagle Street, Brisbane, and that on each occaslon he sign the attendance register;

(b) he reside at

Flat 13, 10 Brighton Road, West

End, Brisbane, untll further order.

3 . The cost of the applicant be his costs in the principal proceedings.

m:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

1 )

QUEENSLAND DISTRICT REGISTRY

)	QLD. G123 of 1986

)

GENERAL DIVISION

)

BETWEEN :

GHOLAMREZA DEZFOULI

Applicant

AND :

THE MINISTER FOR IMMIGRATION	&
ETHNIC AFFAIRS

Respondent

SPENDER J.

BRISBANE

3 SEPTEMBER, 1986.

EXTEMPORE REASONS FOR

JUDGMENT

This is the resumed hearing of an application, pursuant to s.15 of the Adminlstrative Decisions (Judicial Review) Act 1977, to suspend a decision made by the delegate to the Mlnister

to deport the applicant.

The decision to deport Mr. Dezfouli

is accepted by the

Department as being conditional upon the acceptance by the Minister for Immigration and Ethnic Affairs of a recommendation

by the Determination

of Refugee Status Committee, that

Mr. Dezfouli

not be

accorded the status

of refugee.

In a sense, therefore,

the decision to deport depends on the decision

by the Minister

not to grant to

Mr. Dezfouli the status of refugee.

Mr. Dezfouli is an Iranian seaman. He jumped ship from

M.V.

"Iran Ghaffari" and made application in Brisbane

on 15

August 1986 that he be accorded refugee status.

On this present application, the applicant must show

that there is a serious question to

be tried. Implicit

In the

submissions made to me is

that, if that question is satisfled

the applicant, the balance	of	convenience in this case favours
the applicant.

Of the number of grounds m the applicatlon, I need only consider whether a serlous question exlsts to be

tried, and that

is whether, in the events that occurred,	Mr. Dezfouli was denied
natural justlce.

On Thursday, 14 August 1986, the appllcant's brother, Manoochehr Dezfouli, who 1s also Iranian and who

was granted

refugee status some time earlier, made contact

wi h Mr. Ross John

Daniels, a lecturer in social welfare at the Brisbane College of

Advanced

Educatlon,

who is the

Vlce-President

of Amnesty

International Australia, and

who gave advice to the applicant.

That afternoon, Mr. Daniels made arrangements

for an

appointment between Mr.

Dezfouli and the Department at

9.30 a.m.

on Friday, 15 August 1986.

On that initial contact, Mr.

Daniels,

* .

interpreter, and Mr. Manson.

enforcement officer in the

Department,

were

present.

Mr.

Manson

conversed

with the

applicant and,

after inquiry, told Mr. Daniels that the

shlp's

captain had not officially reported

Mr. Dezfouli as missing as a

deserter, with the consequence that the applicant was

not then a

prohibited non-citizen. After attempts by

Mr. Manson to persuade

Mr. Dezfouli

return

his ship,

which

attempts

were

unsuccessful, an

interview occurred with formal questions being

asked concerning Mr. Dezfoull's status.

On that day,

in additlon to the applicatlon for refugee

status whlch was completed by

Mr. Dezfouli, a questionnaire in

support of

that application was made and

an interview was

conducted between Amy Barkworth,

a mlgration offlcer

wlth the

Department,

and

Mr.

Dezfouli.

Mr.

Daniels

left

before

the

intervlew had commenced, havlng been told that Mr. Dezfouli would

not be taken into custody.

In the Interview.

Ms. Barkworth said to

Mr. Dezfoul1:-

"I am an officer of the Department of Immigration and Ethnic Affairs. The purpose of this interview Mr. Dezfoull is to obtam from you information whlch wlll be placed before the Determinatlon of Refugee Status Committee, which wlll conslder all

relevant facts and make

a recommendation to the

Minister for

Immigration and Ethnic Affairs.

will decide whether

you

may be accorded refugee

status and any appeal against the decision must

dlrected to him.

It 1s important therefore, that

you provide me with all the details which	you
consider relevant to your applicatlon."

She then conducted a	quite lengthy interview, towards the end	of
whlch she said:

4 .

"Do you have any other information which you wish

provide or any

other

details

which

would

support your application for refugee status?

To which Mr. Dezfouli replied:

"At present, I don't have anything in mind but

If I

remember anything or I think of

some more I will

inform you.

And, at the end of the

interview again

Mr. Dezfouli was asked:-

'' ... Can

you think of

anything else at this tlme

that you

wish to put forward in relation to your

appllcation?"

to which the answer is recorded:

"He sags at the moment not more than

I have said."

Thursday, 21 August, a further conversatlon

(which

~ ~ a 3

recorded

i n handwriting) occurred between Ms. Barkworth and

the applicant, at the end of which he said:-

"With all the information which I gave you and the basis of the knowledge which I have regarding the sltuation in Iran, if I qo back, I won't live,

that means I wlll be executed."

Mr.	Manson formally advised the applicant, through the

interpreter

Department, that he was a prohibited

non-citizen and arrested him pursuant to s.38 Of	the Miuration
I	Act, 1958.

Mr. Dezfouli was escorted to

his home to collect

statement in Arabic, which he had referred to during the course

of that interview, and later on the 21st he

signed a statutory

declaration in

which he acknowledged that the interview of that

day contained all the additional information which

he wanted

considered with

his claim for refugee status, and concluded by

statlng, "I have no further information to

add."

Mr. Danlels deposes that at

2.20 p.m. on Thursday, 21

August 1986, he learned that

second interview

with Mr. Dezfouli

had taken

place.

He was

told

the

Department

that

the

applicant would be flown to Melbourne at 4 p.m. and then returned

to his ship.

Mr. Daniels

then

contacted

solicltor,

Mr. Sergio

Masinello, to

act on the appllcant's behalf as Mr. Dezfoull had

by then

been detalned.

The present application

1 s primarily

concerned with events subsequent to that tlme.

Mr. Masinello says that at about 6 p.m. on Thursday, 2 1 August 1996. he went to the watchhouse and saw Mr. Dezfouli, but discovered that he could not obtain useful lnstructions wlthout

an Interpreter.

He then made contact

with Counsel and, through him.

with

the Department and learnsd that the Department required further submissions by 9 a.m. on Friday, 22 August 1986. He was not able

to secure the services

of an interpreter until 8.30 p.m., and

then in company

wlth the interpreter and Mr.

Daniels, he returned

to the watchhouse but Mr. Daniels was refused entry.

Despite

the

making

representations to the Chief

Inspector of

Police in Brisbane, permission for Mr.

Daniels to

assist

the

intervlew

of Mr. Dezfouli

was

denied.

Mr.

Masinello swears that without the assistance

of Mr.

Daniels it

was not possible efficiently	or	properly to take instructions
from the applicant.

For the purposes

this interlocutory application,

proceed on the basis that there were difficulties in securing

proper instructlons from

Mr.

Dezfouli on an application for

refugee status without the assistance

of the representative

Amnesty International,

who

was familiar

with the situation in

Iran, and

with Iranian applicants for refugee status.

A request was made

of the Department that evenlng at

about 10 p.m. to allow the applicant to be taken out of the

watchhouse to some other secure place

that those proper

instructions could be secured, but the Director	of Enforcement of
the Department was unable to do this.

On the

followlng day, Friday, 22

August, at about 9.30

a.m., Mr. Masinello attended the offices of the Department where

Mr. Crossland, the Acting Reglonal Director, informed him

that

the applicant would not be made available

for

interview until

after a

court appearance to authorise his detention pursuant to

5.38 of the Miqration Act. Mr. Crossland advised Mr. Masinello that all the submissions on behalf of Mr. Dezfouli had to be in Canberra by 12.30 p.m. that day to enable the Determination of Refugee Status Committee to consider the further material at

their scheduled meeting at

2.00 p.m. that day.

1 .

Mr. Masinello says that he was not able to commence

taking

instructions

from the

applicant

about

his refugee

application until about

11.40 a.m.

In that regard, reference should

be made to the section

13 statement of reasons by Barbara Joanne

Phi, who is the Acting

Assistant Secretary of the Refugee and Humanitarian Branch of the

Department.

paragraph

11 of

the

findings on material

questions of fact, she states:

"At 5 p.m.

on 21 August 1986, the applicant sought

legal advice and

the Department agreed to

put back

consideration of the review to enable an mtervlew to be conducted by his solicltor wlth an

interpreter.

This

statement

that

the

Department

agreed

that

the

review was to be postponed untll an interview wlth a sollcitor

and

an interpreter could be conducted

has a slqniflcance, to

whlch reference will be made later.

In those reasons, Mrs.

Phi says that a handwritten

record of

interview between Mr.

Dezfouli and hls

solicltor was

received on the Friday for consideration by the DORS Committee. She says that it was dispatched from the Brisbane Office

at 1.02

p.m. for consideration by the committee, and, at paragraph 12 of the findings on material questions of fact, she writes:-

"The Applicant's application for review

of the

delegate's

decision

was examined

the

Determination of Refugee Status Committee

on 22

August 1986 at

about 2.30 p.m. The Committee

unanimously

recommended

against

the grant of

refugee status."

Mr. Manson says that he was under instructlons from Mr.

Crossland of the

Department

that, should the interview between

Mr. Masinello and Mr. Dezfouli not be concluded by 12.30 p.m. on the Friday, he was to ring Mrs. Phi of the Department's central office to seek further instructions. Mr. Manson says that he did

that, and was told by Mrs.

Phi that

he was to

inform Mr. Masinello

that he was

take

his time

and

extract

all

relevant

information,

including

any

reference

tohe

appllcant's

lnvolvement with the

Muja Hadin.

Later,

Mr. Manson describes the manner rn whrch the

interview was forwarded to Canberra. He says:-

"I thereupon offered to send by facsimile machine

to my Central Office any completed pages of the

interview that were available. He again expressed

hls gratltude for this and theregpon gave me seven

or elght pages

which I

proceeded to send to our

Central

Offlce.

I also

informed

Mr.

Masinello

that as further paqes became available, he should call me from my offlce, whereupon I would also

forward

those

pages.

Some

tme, Mr.

Masinello

requested me to forward some additional papers."

Mr. Maslnello's description of the process by

whlch this

interview was conducted

and the information obtained from Mr.

Dezfouli was forwarded

to Canberra is:

"From 11.45 am until about

1.45 pm, I had a 13 page

handwritten statement recorded from the Applicant.

investigator with the Respondent Department that

... As initially I was told by John Manson, an

all the material had to be in Canberra by

12.30pm

all

our material was prepared in

a great rush

without

being able to check

inaccuracies

translation and the like

with the Applicant.

During the interview John Manson was consistently

reminding me

the time limits involved.

The

first seven pages were sent by facsimile in one

bundle and

then each page was sent as soon as it

was completed by me.

had no

opportunity to

carefully read over the material and reflect

whether

all the appropriate material was put to

the DORS Committee.

At about 1.45pm BARBARA PHI, Chairperson of the DORS Committee spoke to me by telephone and said that the Applicant's political activities were

mentioned and she said that this should	be fully
canvassed in his statement."

He says in hls affidavit:-

"I believed at that stage we had done

5 0 but in the

rush, on reflection, I belleve

that

information

should

have

b en

put

the

Commlttee.

The Department was much concerned

wlth the fact that the

ship, M.V.

"Iran Ghaffari" was to sail from Victorla In the few

days

after

the

22nd,

and

was

similarly

impressed

with

the

practlcal consideratlon that, should the appllcatlon for refugee

status be refused,

it would be in the applicant's Interests

If he

could return to the ship before

it sailed from Victoria to Iran.

Thls practical consideration goes a

long wag to explaining the

urgency with

which the matter was addressed and also hlqhliqhts

the nature

of the difficulty of the complaints by the applicant

concerning natural justice.

The committee recommended against the grant

o€ refugee

status to Mr. Dezfouli. Mrs. Phl, in her affidavit, says, concerning the statements made by

Mr. Dezfouli on the ship, which

10.

were generally criticisms of Khomeini, of his regime, criticisms of the war with Iraq of the general political, social, and economic circumstances which prevail in Iran, that:

"...the Committee

did not doubt the Applicant had

made statements expressing his views

on the ship

but

considered

his fear of punishment

was

exaggerated.

For present purposes, it is sufficient to note that thls

view is

not

shared

Mr.

Daniels, who says, from hls

understanding of Amnesty

International

literature,

from

conversatlons wlth other Iranlans, and from the materlal to

which

the committe? also had

access,

that he found It difficult to

understand how the Committee could have arrived at Its declsion.

I mention thls dlspute because

of its relevance to one

of the grounds

of sectlon 5, namely, that the decision was such

that no reasonable person could arrlve at It.

As earlier indicated, I need only consider whether there

is a serious question of whether Mr. Desfouli was denied natural

justlce.

v. Minister

for

Immiqration

and

Ethnic

Affairs

(1985) 62 A.L.R. 321; (1986) 60 A.L.J.R.

113, the High Court

considered the application

of the rules of natural justice in the

context of the making of

deportation orders. At p.345, Mason J.

stated the general principle:-

11.

"It is a fundamental

rule of the

common

law

doctrine of natural

justice

expressed

traditional terms that, generally speaking, when

an order is to

be made which will deprive

a person

some right or interest or the

legitimate

expectation of a benefit, he is entitled to know

the case sought to be made against him and to be

given an opportunity

of replying to it. (Twlst v.

Randwick Municipal Council (1976) 136 CLR 106 at 109; 12 ALR 379 at 382-3: Salemi (No 2) (CLR) at p 419; (CLR) at p 476; Heatlev v. Tasmanian Racinq and Gaminq Commission (1977) 137 CLR 487 at 498-9; 14 ALR 519 at 528; FA1 Insurances Ltd. v. Winneke (1982) 151 CLR 342 at 360, 376-7; 41 ALR 1 at 13: Annamunthodo v. Oilfields Workers' Trade

Union C19611 AC 945).

Mason J. then consldered the expression "legitimate	expectation",
and noted:-

"The expectation may be that a right, Interest

prlvllege will

be granted

or renewed or that it

will

not be denied wlthout

an opportunity bemq

glven to the person affected to put his case."

Hls Honour discussed at p.348

what procedural fairness

entailed in its applicatlon to the exercise

of the discretlonary

power conferred by s.18 of

the Miqration Act. He stated

that,

whlle procedural falrness dld not necessarily require advance

notlce to be given to a deportee, It may be otherwise where the

reasons for maklng of the order travel beyond the fact that the

person concerned is a prohibited lmmlqrant, and those reasons

are

personal

him.

The particular

facts of

involved such a

consideration, in that the applicant was alleged

have been

involved in attempts to circumvent Australia's immigration laws.

Since the allegation was extremely prejudicial to the applicant,

Mason J. stated that the applicant should

have the opportunity of

replying to it.

Wilson J. at p.360 was of

a similar view.

12.

Brennan J.,

at p.378, after concluding that the powers

conferred by

s.18 of the Miqration Act were conditioned

on the

observance of the principles

of natural justice, considered

the

application of those principles to the case at hand.

He accepted

that, in some cases, the purpose

f the power would be frustrated

giving a hearing,

but

stated

that

the

case

of the

applicants, where there had been

o attempt to evade officers

the Department, the power conferred

on the Minister would not be

frustrated

the

hearing

being

iven.

His Honour,

considering the notion	of "legltimate expectation", stated at
p.378:-

"If the partlcular clrcumstances

the case show

that the repository

of a power has made an express

promlse

person

has adopted an

admlnistratlve

practice whlch that person

can

reasonably

expect

continue

and

has

thereby

lnduced the person to expect that the power will

be exercised In his

favour or that it wlll not be

exercised agamst him without a hearing, it may be

unfalr

to exercise the power against the person

without givlng h m a hearing. But the unfairness

consists in a

departure from the course

which the

repository

of the power expressly or lmplledly

promised to follow without givmg the person whose

interests are affected

an opportunity to be heard.

The unfairness is not the disappomtment of the expectation whlch the promise induced."

In a separate judgment, Deane J., who agreed with the

~udqments

of Mason and Wilson JJ., considered the applicatlon

those principles to the circumstances of the applicants.	His
Honour noted that:-

"The making of a deportation

order

against

prohibited

immigrant

drastically

and

adversely

changes his rights and, to	s me	extent,
dehumanizes his status."

At p. 383, Deane J. observed that the content

of the requlrements

procedural fairness depends upon the circumstances

the

particular

case.

In certain

circumstances

would

impracticable to extend a prohibited immigrant an opportunity of being heard before a deportation order is made. For example,

where

prohibited

immigrant

has gone

into

hiding, the

opportunity of according a prlor

opportunlty,

would

unnecessary. However, in the absence	of any such circumstance,
Deane J. noted that:-

"...lt

1 s dlfflcult to envlsage a case in which the

particular

circumstances

would

elther

exclude

those requirements completely in relation to the

making of a deportatlon order or so modify them

that the person affected was not entltled to an

adequate opportunity of

being heard before

he was

sub~ected

to the adverse effects

of such an order.

Clearly enough, the mere clrcumstance that there

is no apparent llkelihood that the person directly

affected could successfully oppose the maklng of a

deportation

order

nelther

excludes nor

renders

otlose

the

obligation

of the

administrative

decision-maker

observe

the

requlrements

procedural fairness. Indeed, the requlrements

procedural fairness may be of added importance in

such a case in that they ensure

an opportunity of

ralslng

for conslderation matters which are not

already obvious. Thus, the fact that the basis

a deportation order is merely that

the person in

question

prohibited

immigrant

will

not

deprive the potential deportee

of his

ordinary

right to a prior and adequate

opportunlty of being

heard and of seeking

answer or avoid the

reasons which appear to favour his deportation: he might wish to dispute his status as a prohibited

Immigrant; he might wish to

raise

particular

matters which might arguably warrant the exercise

of some special discretion in his favour or rebut

particular matters

which might be taken into

14,

account as weighing agalnst the exercise

of such a

discretion; he mlght

wish to challenge the wisdom

or justice of the

administrative

policy

pursuance of which It is proposed to order that he

be deported.

In this case the Department offered to Mr. Dezfouli an

opportunity of saying what could be said in support

of his

application.

The

crucial question is whether it is seriously

arguable that the opportunity given to him was Inadequate in the

circumstances.

If there is

a duty to accord the opportunity to be

heard, and to answer the case agalnst him, then lt is clear that

that duty means that there must be

an adequate opportunlty.

What 1 s adequate in a particular case may very well depend	on the
question of time constralnts.

Thames

Maqistrates'

Court: Ex parte

Polemls

C19741 1

W.L.R.

1371, the master

of a vessel was summoned at

10.30 a.m.

to appear and defend at

2 p.m.

a charge under the

Prevention of Oil Pollutlon Act 1971 (U.K.).

The representative of

the owners of the ship instructed

solicitors who did what they could to prepare

for a hearmg at 2

o'clock.

By 2 o'clock, however, not much progress had been made.

The court did not sit until

2.30 p.m.,

whereupon the solicitor

for

the

applicant

sought

an adjournment.

The justices

who

considered the matters rapidly determined that the matter should

be heard that day.

15.

The Lord Chief Justice, Lord Widgery, noted at p.1374:-

"I have

no doubt, in fairness to them, that they

were much impressed

by the fact that this ship was

going to sail at 9 o'clock that night, which was a

practical aspect

of this matter which clearly

could not be overlooked."

The

decision was that there

be no adjournment, but by way

COnCeSSiOn, the matter was stood over till

4 o'clock. At that

time the matter was transferred to a stipendiary magistrate who heard the case out, found the case proved, and imposed a fine of

$5000.

The ship salled later that evening.

Lord Widgery C.J. sald at p.1375:-

"To start with,

nothlng 1 s clearer today than that

a breach of the rules of

natural ~ustlce

is sald

to occur

a party to

proceedlngs, and more

especlally the defendant in a

crimmal

case, is

not glven a reasonable chance to present

hls case.

It is

so elementary and so

basic it hardly needs

to be said. But of the versions of

breach of the

rules of natural lustice wlth which In thls court

we are dealing constantly, perhaps the most common

today

the allegation that the defence were

pre~udlced

because they were not given a fair and

reasonable opportunity to present their case to

the

court,

and

of course

the

opportunity

present

a case to the court

is not confined to

being given an opportunity to stand up and say

what you want

to say; It necessarlly extends to a

reasonable opportunity to prepare your case before

you are

called upon to

present

it.

A mere

allocation of court time is of

no value

if the

party in question 1s deprived

of the opportunity

of gettlng

his tackle in order and being able to

present

hi5 case in the fullest sense.

I have

sald one hardly needs authority for

that, but in

Local Government Board

v . Arlidse C19157 A . C .

120,

132, the point is well made by Viscount Haldane	-
L.C; when &e says:

, 13 .

16.

'My Lords, when the duty

of deciding an

appeal is imposed, those whose duty It

is to decide

it must act judicially.

They must

deal

with the

question

referred to them without bias, and

they must give to each of the parties

opportunity

the of adequately

presenting the case

made.'

In this instance,

the brief and simple facts

that I have related, can it be sid that the

applicant was given a reasonable opportunity to

present his case? It seems to me to be totally

unarguable that he was given such a reasonable

opportunity.

Later in the judgment, his Lordship adverted specifically to the

fact that, it having been determined later

that there was

merit in the appllcant's case, the court,

its discretion,

should refuse the order for certiorari. Lord Widgery sald, ln

re~ecting

the submlsslon:

"It is

again absolutely basic to our system that

justice must not only be done but must manlfestly

be seen to be done. If justice was so clearly not

seen to be done, as on the afternoon in question

here, it

seems to me that it 1 s

no answer to the

applicant to say: 'Well, even if the case had been

properly conducted, the result would

have been the

same.

That is

mlxing up dolng justice with

seeing that justice is done,

I reject that

argument.

In my

opinion, arguably there was a denial of natural

justice

that

Mr. Dezfouli, having

been

promised

the

Department the opportunity of making representations to it with the assistance of a solicitor, dld not have an adequate or reasonable time to make those submissions.

I 3

1 7 .

I am only concerned

this interlocutory stage

with

whether there is

a point of substance able to

be argued which may

result in judgment in Mr. Dezfouli's favour. (Zammit v. Fainsold

(1981) 1 F.C.R. 87.

Having concluded that there is a serious question to

tried, no submission was directed that the balance

of convenience

was such that, notwithstanding that conclusion,

I ought not make

the stay order that

is sought.

There

one

further matter.

The Determinatlon of

Refugee Status Commlttee represented to

Mr.

Dezfoull that

would have the opportunlty of maklng further submissions

with the

aid of

a solicltor, and that was

situation which the evldence

shows was conveyed on a number of occasions to Mr. Serglo

Maslnello, the solicitor for

Mr. Dezfouli.

The DORS

Committee

m rely

makes

recommendations

concerning the status

of refugees. If there

was a denial of

natural justlce in the opportunity afforded to Mr. Dezfouli

making representations to that committee, then

issue arises

whether that denial affects the declsion made later	by	the
Minister to accept the recommendatlon.

Sectlon

5(l)(a)

of the

Administrative

D cisions

(Judicial Review) Act 1977 provides:-

I '

18.

"A person

who is aggrieved by a decision to which

this

Act

applies

that

made

after

the

commencement of

this Act may apply to the Court

for an order of review in respect

of the decision

on any one

or more of the following grounds:-

(a) that a breach of the

rules of natural

justice

occurred

connexion

with the

making of the declsion."

In my opinion, if it be established that

a breach of the

rules

of natural justice arose in relation to the opportunity

afforded

to Mr. Dezfouli

make

submissions

to the DORQ

Committee, then a breach of the rules of natural justice occurred "in connexion with" the making of the decision

by the Minlster to

accept the recommendatlon

of the Commlttee.

The words "in connexion with" as an ordinary expression, simply mean a relation between one thing and another. Where a

decision by the Minister to refuse refugee status

is based on a

recommendatlon, made after what was meant

to afford the applicant

natural justice, but which did

not,

then In my view, a denlal of

natural justice occurred in connexion	with the maklng	of the
Minister's decision.

In my

opinion, there is a serious question to be tried

whether that is so.

The balance of convenience is overwhelmingly

in favour of the conclusion that I ought to suspend the decision

of the delegate

of the Minister.

19.

I therefore order:-

The operation of the decision

of the delegate of the

Minister to deport the applicant be suspended until the

determination of these proceedings or further earlier

order.

2. The applicant be released from detention on condition

that :

( a )

at 9.30 a.m. every day, Monday to Friday, he report to the Officer-in-Charge, Department

Immigration & Ethnic Affairs, Level

l67 Eagle Street, Brisbane, and that on each

occasion he sign the attendance register;

(b)	he reside at Flat 13, 10 Brighton Road, West End, Brisbane, until further order.

3. The cost of the applicant be his costs in the principal proceedings.

[1986] FCA 432

9 Mar 1986