Dohery, I v Minister for Immigration & Ethnic Affairs
[1987] FCA 296
•08 MAY 1987
Re: ILONA RENATE DOHERTY; MATTHEW JAMES KEEFE; TISSARIAN MATTHEW KEEFE and
JOERG WALETZKO
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WAG 89 of 1986
Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.
CATCHWORDS
Immigration - prohibited non-citizen - deportation order - refusal to revoke order - judicial review - power to revoke - source of power - discretion concerned with fresh evidence or change in circumstances - applicant in de facto relationship with father of 13 month old child - father unable to travel with her if deported - relevance of effect of order on embryonic family unit - new circumstance - no or scanty consideration by delegate - referred for reconsideration.
Migration Act 1958 s.18, s.20
Administrative Decisions (Judicial Review) Act 1977
Re Serecen and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 72
Barbaro v. Minister for Immigration and Ethnic Affairs (1982) 61 FLR 166
Yildiz v. Minister for Immigration and Ethnic Affairs (1982) 70 FLR 105
Tabag v. Minister for Immigration and Ethnic Affairs (1982) 70 FLR 61
Minister for Aboriginal Affairs v. Peko Wallsend (1986) 66 ALR 299
HEARING
PERTH
#DATE 8:5:1987
Counsel for the Applicants: Mr B.F. Stokes instructed by B.F. Stokes & Associates
Counsel for the Respondent: Miss C. Francas instructed by the Australian Government Solicitor
ORDER
The question of possible revocation of the deportation order made on 4 August 1986 be referred to the respondent for further consideration according to law.
The respondent refrain from taking any steps to put into effect the deportation order of 4 August 1986 until it has been further considered pursuant to paragraph 1 of this order.
There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Ilona Renate Doherty was born in East Germany on 27 March 1955.
Her family moved to West Germany in 1959. She was married and divorced twice in that country.
On 16 April 1977 she gave birth to a son, Joerg Waletzko, who is the fourth applicant in these proceedings.
In 1983 she was residing in Amsterdam where she met a New Zealand citizen, Brendon Doherty, who was then on holiday in Holland.
A romantic attachment developed and in the following year Doherty asked her to come to Sydney and stay with him there.
On 16 December 1984 Mrs Doherty arrived in Sydney with Joerg.
Each of them had visitor's visas and temporary entry permits for a 6 month stay conditioned on their not engaging in any employment during that time.
She and Doherty lived as man and wife in Sydney for about 6 months after her arrival. On 3 May 1985 they were married.
The marriage was a remarkably short lived one. Mrs Doherty left her new husband on 18 June 1985.
In March 1985 she had met Matthew Keefe. He is an Australian citizen. They began to live together in the middle of July 1985.
In October of that year Mrs Doherty became pregnant by Keefe.
Because, it is said, of difficulties with Keefe's parents the couple decided to come to Perth which they did on 22 April 1986.
The child of their union, a son Tissarian who is the third applicant in these proceedings, was born on 25 April at the Stirling Hospital, Osborne Park.
In May 1986 Mrs Doherty and Keefe split up.
In April 1985 before her marriage to Doherty, Mrs Doherty had attended at the Department of Immigration and Ethnic Affairs in Sydney with a view to applying for permanent resident status. She was advised, so she said, to wait until after her marriage before making application.
In May 1985 she again approached the Department and asked for an application form. This was sent by post from that office in early June.
According to a Departmental minute prepared by the director of the Enforcement Section in Perth, Mr W. Perram, Mrs Doherty was sent the application form in August 1985 but did not complete it.
According to her affidavit she was asked by the Department in August to provide information in relation to her marriage, medical reports relating to herself and her son Joerg and police reports from Germany. She was also asked to provide a declaration from her husband as to the future of their marriage.
She obtained police reports from Berlin and gave them to the Department in Sydney on 20 November. Her husband would not however support her application by completing a statutory declaration.
In the meantime on 16 June 1985 the temporary entry permits had expired and Mrs Doherty and her son Joerg became prohibited non citizens pursuant to sub-s.7(3) of the Migration Act 1958.
In May 1986 after giving birth to Tissarian in Perth she and Keefe split up. She then approached the Department's Perth office and completed an application for permanent resident status.
According to Perram's minute she approached the Perth office on 10 June 1986 saying she had broken up from Keefe. When he was seen on 12 June he insisted that he wanted a reconciliation with her.
Mrs Doherty left her passport and that of her son with Mr Michael White at the Perth office of the department and agreed to telephone him each Friday and Monday. She continued to do this for the months of May, June, July and the first part of August.
On 4 August 1986 a delegate of the respondent made a deportation order against her. The order was made in the following terms:-
"WHEREAS ILONA RENATE DOHERTY also known as ILONA RENATE VAN DER HEIDE being a non citizen, entered Australia on the 16th day of December 1984
AND WHEREAS the said ILONA RENATE DOHERTY is a prohibited non citizen by virtue of section 7 of the Migration Act 1958 in that she was the holder of a temporary entry permit which has expired and no further entry permit applicable to her came into force upon that expiration or has been granted to her since NOW I, JOHN RICHARD MAHONEY, Assistant Secretary, Entry Regulation Branch, Department of Immigration and Ethnic Affairs, and delegate of the Minister of State for Immigation and Ethnic Affairs, DO HEREBY ORDER, pursuant to section 18 of the Migration Act 1958, that the said ILONA RENATE DOHERTY be deported from Australia."
Mrs Doherty was advised of the making of the order by telephone on 6 August 1986 and was served with a copy of it on 7 August.
Subsequently she attended at the department's office on a number of occasions speaking there with a welfare officer, Marie Stokes and also with Michael White. The two officers made file notes of their conversations with Mrs Doherty.
On 27 August 1986 Mr Allen Blanchard MHR wrote to the Regional Director of the Department of Immigration in Western Australia on behalf of Mrs Doherty and Mr Keefe. In his letter he sought a review of the decision to deport her. The letter said in part:-
"In view of the facts outlined hereunder I seek a sympathetic review of the decision to deport Mrs Doherty.
Mrs Doherty, formerly Mrs Van Der Heide, formerly Mrs Waletzko nee Fandrey was born in East Germany but lived most of her life in West Germany. Her family moved there in 1959. She came to Australia with her husband, Mr Doherty early in 1985. She had met her present husband in Holland. The marrige proved to be an unhappy one for Mrs Doherty and the marriage foundered in July 1985. Her previous marriage to Mr Van Der Heide was also a disaster. She states that he was heavily into Heroin.
Mrs Doherty had met Mr Keefe prior to the break up of the marriage and after the break up she went to live with him. There is a child of this union born 25th April 1986. Mrs Doherty also has custody of a nine year old child of a previous marriage. According to both Mrs Doherty and Mr Keefe it is their intention to settle down with each other regardless of whether she is allowed permanent resident status in Australia. However, if she is deported Mr Keefe has not sufficient assets to allow him to accompany her overseas.
I consider that a review of the case is warranted on the grounds of the future of the child born to Mrs Doherty as well as that of the older child who is said to be well settled in Australia."
On 9 September 1986 Mr J. McCormack, the acting director of the Enforcement Section of the Department wrote a memorandum directed to the Assistant Secretary, Entry Regulation Branch which memorandum was in the following terms:-
"ILONA RENATE DOHEREBY nee VAN DER HEIDE PROHIBITED NON-CITIZEN - DEPORTEE
I have attached the papers which you considered on 4 August 1986 and decided to sign an order for Mrs Doherty's deportation.
Since then Mr Allen Blanchard MP has written to the Regional Director, Perth on behalf of Mrs Doherty and Mr Keefe seeking a review of the decision to order her deportation.
Mr Blanchard states that it is the couple's intention to settle down with each other regardless of whether Mrs Doherty is allowed permanent resident status in Australia. However, if she was deported Mr Keefe was not in a financial position to accompany her. Mr Blanchard considered that a review of the case is warranted on the grounds of the future of the child born to Mrs Doherty (and Mr Keefe) as well as that of the older child who is said to be well settled in Australia.
In my view Mr Blanchard has not presented any new or compelling circumstances or any matters not previously considered that would warrant a variation of the existing deportation decision. On 31/7/86 the couple stated they had separated permanently and Mrs Doherty accepted that deportation action was inevitable. Even if their relationship has resumed it has not created an eligibility for change of status for Mrs Doherty. In any event, the matters raised by Mr Blanchard were canvassed in the submission you considered on 4 August
1986. Subject to your views now, it is proposed to proceed with the execution of the deportation order."
The memorandum was endorsed with the words "DEPORTATION ACTION TO PROCEED" and signed by Mr Mahoney, the delegate of the respondent on 9 September.
On 12 September 1986 Mrs Doherty instituted proceedings under the Administrative Decisions (Judicial Review) Act seeking review of the deportation decision of 4 August and the refusal to give her permanent resident status.
An amended application was filed on 15 December 1986 naming Matthew James Keefe as second applicant, Tissarian Matthew Keefe as third applicant and Joerg Waletzko as fourth applicant.
The decisions of which the amended application sought review were:-
"A. The First and Fourth Applicants not be granted further temporary entry permits (TEP's) made the 4th August, 1986 pursuant to sub-section 6(2) of the Migration Act ("the Act").
B. The said Applicants not be granted permanent residency on the basis of change of status pursuant to sub-section 6(a)(1)(b) and (e) of the Act, made the 4th August 1986.
C. The First and Fourth Applicants be deported to West Germany, made the 4th day of August 1986.
D. The said deportation order not be varied made the 9th September 1986."
On 20 January 1987 pursuant to O.20 r.2 of the Federal Court Rules Toohey J. dismissed the application insofar as it related to the first three decisions mentioned. In respect of the fourth decision his Honour said at page 11 of his reasons:-
"As to the fourth decision made 9 December 1986, there is a difficulty arising because of the material or rather the lack of material before the Court. The challenge to this decision arose through the amendments to the application; none of the material before the Court refers to such a decision or to the circumstances surrounding it. The ground on which this decision is attacked is an alleged failure to take into account "the reports of MICHAEL WHITE of 20 August 1986 and MARIE STOKES of 20th to 22nd August, 1986 both of which contained relevant new material for the Respondent's consideration."
These reports must have been made after the deportation order. Ms Stokes is a welfare officer who saw Mrs Doherty. The reports were not before the Court though counsel for the applicants read some passages from them. The position regarding this part of the application is unsatisfactory. The application itself was amended at the hearing of the motion and no objection was taken by counsel for the respondent. Counsel for the applicants explained the difficulties he had encountered in getting a further affidavit from Mrs Doherty. In the circumstances I do not think I should strike out those parts of the application relating to the decision of 9 September 1986. But otherwise the application will be dismissed."
When the surviving portion of the application came on for hearing before this Court, there was among the materials an affidavit sworn by Mrs Doherty which exhibited copies of file notes made by Michael White and Marie Stokes,said by Mrs Doherty to contain information supplied by her but not considered by the Minister's delegate in refusing to review his decision to deport.
Counsel for the applicants referred to two matters raised in the additional file notes made by White and Stokes which he said were not taken into account by the delegate. They were:-
1. The fact that Mrs Doherty would not have any family support in Germany.
2. The fact that by reason of her absence from Germany she would be unable to qualify for social security benefits on her return. With two young children she would also be unable to work.
In addition although it was strictly speaking outside the stated ground for review, counsel contended that the delegate had not taken into account a new circumstance namely that Keefe would not accompany Mrs Doherty if she were to be deported to Germany.
In the minute prepared by Mr Perram recommending the deportation order of 4 August it was said that Keefe "very much opposes the deportation of his de facto spouse and would accompany her if this occurs".
In Mr Blanchard's letter however it was said that if Mrs Doherty were to be deported Mr Keefe did not have sufficient assets to allow him to accompany her overseas.
This matter was expressly referred to in the departmental memorandum submitted to the delegate on 9 September.
It was accompanied by Mr McCormack's comment that Mr Blanchard had not presented any "new or compelling circumstances" that would warrant a departure from the subsisting deportation decision.
The contention for the applicants was that the failure to identify Keefe's inability to accompany Mrs Doherty as "a new circumstance" amounted to a failure on the part of the delegate to take it into account.
I will return to this and the other bases upon which review is sought shortly. Before doing so I note that in the file note prepared by Mr White he was told by Mrs Doherty on 20 August that Keefe was still going to accompany her to Germany.
In the note prepared by Marie Stokes of a conversation held on 22 August with Mrs Doherty and Keefe it is said:-
"Ms Doherty desparately wants to remain in Aust with her de facto and two children. Matthew does not wish his child to leave Aust and be raised in Germany. In the event that she is deported he will try to follow her. They have discussed the option of leaving the two children in his care and for him to try and sponsor her back."
The amended application as further amended at the hearing, characterised the decision of 9 September 1986 as an exercise of power under either s.18 or sub-s.20(1) of the Migration Act.
Section 18 provides:-
"The Minister may order the deportation of a person who is a prohibited non citizen under any provision of this Act."
Section 20 provides:-
"20(1) 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 effected by any delay in the execution of that order."
In Re Serecen and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 72, Brennan J. sitting as President of the Administrative Appeals Tribunal said at 73:-
"The Minister's power to revoke a deportation order, referred to in s.20 of the Act is a power that may be exercised at any time before the person who is ordered to be deported is deported. The power of revocation is one which may be exercised by the Minister whether the original order made by him is made under ss.12, 13, 14, 17, 18 or 19 of the Act. There is a general power of revocation which is conferred by implication under s.20 and does not depend in my view upon any of the specific powers to order deportation contained in div.2."
In Barbaro v. Minister for Immigration and Ethnic Affairs FLR 166 at 168 Davies J. thought it "plainly correct" that the Minister has a power under the Migration Act to revoke a deportation order - in that case an order made under s.12.
His Honour however refrained from expressing any view as to the correctness of the analysis in Serecen.
In Yildiz v. Minister for Immigration and Ethnic Affairs (1982) 70 FLR 105 at 114 Jenkinson J. (with Woodward and Keely JJ. agreeing) said:-
"Section 20 of the Migration Act 1958 expressly contemplates what would in any event be implied: a power in the respondent to revoke such an order as he has made for the appellant's deportation."
The power is therefore to be implied. In the case of a deportation order made under s.18 it arises I think as an incident of the grant of power in that section.
The decision whether or not to revoke a deportation order involves the exercise of a discretion.
It is a discretion which, by its very nature, will in most cases be directed to the question whether fresh evidence has come to light or a material change of circumstance occurred to justify departure from the subsisting deportation order.
The fresh evidence or the new circumstances to be considered must of course be relevant to the exercise of the discretion.
In relation to the impact of a deportation order on familial relations and children, Woodward J. in Tabag v. Minister for Immigration and Ethnic Affairs (1982) 70 FLR 61 at 67 said:-
"...in deportation cases the breaking up of a close-knit family is a consideration of major significance. A similar degree of significance should be given to the uprooting of a child from thoroughly familiar Australian surroundings, and the placing of that child into a totally foreign setting, where language, culture and opportunities for personal development are completely different."
The history of the relationship between Mrs Doherty and Mr Keefe does not inspire their characterisation as "a close-knit family". They and the two children might perhaps attract the tentative description of an embryonic family.
The fact of the relationship and its impact upon the welfare of the children is nevertheless in my opinion, a factor relevant to the decision to deport.
The submission put to the Minister's delegate, leading to the order made on 4 August proceeded on the basis that Keefe would accompany Mrs Doherty on her return to Germany.
On that basis deportation of itself would not have split up this family group, however embryonic and fragile.
If Keefe cannot go to Germany, the deportation would be likely to have that effect.
To advert to these factors does not involve a finding by this Court that Keefe was to be believed either when he said he would accompany Mrs Doherty or now when it is said that he will not. Nor does it involve a prognosis as to the relationship between Mrs Doherty and Keefe.
Within limits, consistent with the supervisory nature of judicial review, the weight to be given to these matters is for the decision maker and not the Court - Minister for Aboriginal Affairs v. Peko Wallsend (1986) 66 ALR 299 at 309-10 per Mason J.
In my opinion Keefe's inability to accompany his de facto wife as disclosed in Blanchard's letter was a new circumstance. The departmental minute of 9 September speaks of an absence of "new or compelling circumstances".
The analysis that followed that comment does not suggest that any substantial consideration was given to that issue and its impact on their relationship. For it is said in the minute:-
"Even if their relationship has resumed it has not created an eligibility for change of status for Mrs Doherty."
That rather suggests that the question of the relationship between Keefe and Mrs Doherty was regarded as irrelevant by the author of the minute.
In the circumstances I am of the view that the decision maker has in all probability given no or scant consideration to the effect of the deportation order on this embryonic family having regard to Keefe's alleged inability to travel with Mrs Doherty.
It is a relevant factor and will in my opinion, require to be considered and weighed in the balance.
On this basis therefore I am prepared to set aside the decision of 9 September and remit it for reconsideration according to law.
As to the other matters raised relating to the inability of Mrs Doherty to obtain social security or parental support in Germany, these matters were not put to the delegate or the department in pursuance of the request for review of the decision. There is no reference to them in Mr Blanchard's letter.
I would not be prepared to make an order of review on the ground of a failure to take them into account. That is not to say that it would now be inappropriate for the delegate to give them some consideration.
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