Filo, Isotolo Tuifa v Minister for Immigration & Ethnic Affairs
[1984] FCA 256
•24 AUGUST 1984
Re: ISITOLO TUIFA FILO
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS, MINISTER FOR DEFENCE, FIRST
LIEUTENANT JOHN PETELO and COMMANDER H.J. MURDOCK
No. VG.231 of 1984
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
CATCHWORDS
Administrative Law - judicial review - cancellation of temporary entry permit - whether rules of natural justice attracted - whether procedures under Division 3 of Part IXA of Defence Act 1903 (Cth) correctly followed - whether "designated authority" made request to "authorized officer"
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth) ss.7, 8, 18
Defence Act 1903 (Cth), ss.116E, 116F, 116G, 116H
Defence Acts Amendment Act 1981 (Cth) s.18
Defence (Visiting Forces) Act 1963 (Cth) s.19
Gaillard v Minister for Immigration and Ethnic Affairs (delivered 31 March 1983)
Minister for Immigration and Ethnic Affairs v Gaillard (1983) 49 ALR 277
HEARING
SYDNEY
#DATE 24:8:1984
ORDER
The Court -
1. Dismisses the application for relief against the Minister of State for Immigration and Ethnic Affairs;
2. Declares that the applicant, Isitolo Tuifa Filo, is entitled to be released from custody under Division 3 of Part IXA of the Defence Act 1903
(Cth) and orders that he be so released;
3. Reserves liberty to apply for any further or other order as may seem meet.
JUDGE1
The applicant, Isitolo Tuifa Filo, is a citizen of Tonga and a member of the Tongan Defence Service. As part of his duties with the Service, he came to Australia on 18 June 1983 and enrolled as an apprentice with the Royal Australian Navy at the naval establishment HMAS Nirimba in New South Wales. In about November 1983, Mr Filo was informed by the Australian naval authorities that he had failed his course and would have to return to Tonga.2. On 5 December 1983, Mr Filo went absent without leave. In January 1984, he met Pamela Dawn Singleton and, for a number of months thereafter, they lived together as man and wife in Traralgon, Victoria. Ms Singleton is an Australian citizen. An affidavit filed on behalf of the applicant states that in or about May 1984 he and Ms Singleton decided to marry. A Notice of Intended Marriage was given on 13 August 1984.
3. In about May 1984, the Chief of the Tongan Defence Service, Major Tupou, requested that Mr Filo be deported to Tonga. Without calling upon Mr Filo to show cause why that step should not be taken, Mr Eyles, a delegate of the Minister for Immigration and Ethnic Affairs, on 5 July 1984, declared, under s.8(2) of the Migration Act 1958 (Cth), that it was undesirable that Mr Filo be permitted to remain in Australia and cancelled, under s.7(1) of the Migration Act 1958 (Cth), the temporary entry permit which had been issued on Mr Filo's entry into Australia and which had a term of two years. Mr Eyles also, under s.18 of the Act, ordered that Mr Filo be deported from Australia. Subsequently, on 13 August 1984, Mr Anderson, a delegate of the Minister for Immigration and Ethnic Affairs, revoked the deportation order with a view to allowing steps to be taken against Mr Filo under the Defence Act 1903 (Cth). I shall subsequently deal with the steps that were taken under that Act.
4. It was put to the Court that the two extant decisions made under the Migration Act 1958 (Cth) were invalid and should be set aside by reason of the failure of the delegate, Mr Eyles, to give to Mr Filo a reasonable opportunity to put forward reasons why he should not be deported from Australia and, in particular, for failing properly to investigate and consider Mr Filo's relationship with Ms Singleton and their intention to marry.
5. There is no evidence before the Court as to the matters which Mr Eyles took into account or as to the reasons for his decision. Therefore, the only ground of challenge supported at the hearing was that Mr Eyles failed to give to Mr Filo a reasonable opportunity to put forward reasons why he should not be deported and failed to take into account matters which Mr Filo and Ms Singleton would have wished to put to Mr Eyles had that opportunity been afforded them.
6. In Gaillard v Minister for Immigration and Ethnic Affairs (unreported, delivered 31 March 1983), I expressed the view that, in the absence of special circumstances, such as urgency or national security, a person holding a temporary entry permit should be given a fair opportunity to be heard before the discretion conferred by s.7(1) of the Migration Act 1958 (Cth) was exercised. However, that view was over-ruled on appeal in Minister for Immigration and Ethnic Affairs v Gaillard (1983) 49 ALR 277. In that case, Sweeney J said, at pp.282-3,
"In my opinion, the applicant, having been given a temporary entry permit which was subject to cancellation by the Minister in his absolute discretion at any time, having obtained entry into Australia on the faith of the acknowledgment which she signed, and having herself brought to an end her employment which was a 'strict condition' of the approval of her entry into and stay in Australia, does not have a legitimate expectation, of being allowed to remain in Australia, of which it would not be fair to deprive her without hearing what she has to say. The Minister was not bound to comply with the rules of natural justice in making his decision to cancel the applicant's temporary entry permit."
Sheppard J said, at p.283,
"The learned primary judge was of opinion that the right conferred by a temporary entry permit was 'a most significant right'. Later he described it as 'a most valuable right'. I agree that that will be so in many cases; it is so here, the permit having been issued on 30 October 1980, for a period of two years and three months. But often temporary entry permits will be for very short periods, in some cases for periods of only a few days or even a few hours. If the matter is approached as a pure question of construction, as it should be, subject to the respondent's alternative submission based on 'legitimate expectation', one ought not give the section a meaning and operation which will oblige the affording of natural justice in some cases and not in others. It is either to be afforded in all cases or in none. For that reason, I am unable to place the same emphasis on the value of the right conferred by the temporary entry permit in this case as did the learned primary judge.
It is that consideration, coupled with the width of the discretion which the words of the section show the Minister was intended to have and the absence of specific criteria therefrom, which principally leads me to differ from the view formed by his Honour. The fact that the subject matter of the legislation is the control of aliens seeking to enter and remain in Australia, along with the considerations of national security which may be involved in some cases, provides an additional reason why I think the appeal should succeed. Often there will be the need to act quickly and there may be reasons associated with security which would make it most difficult for natural justice to be afforded in any real sense."
Neaves J said, at p.290,
"Having considered the whole of the circumstances I have come to the conclusion that, in exercising the power conferred upon him by sub-s 7(1), the Minister is not bound, as a matter of law, to give the holder of a temporary entry permit notice of his intention to consider cancellation of the permit and of the matters relevant to that consideration or to afford to the holder an opportunity to put submissions why the power should not be exercised. In my opinion the learned judge at first instance was in error in regarding the decisions of the majority of the High Court in Salemi v MacKellar (No 2) (1977) 137 CLR 396, and R v MacKellar; Ex parte Ratu (1977) 137 CLR 461, as turning principally on the provisions of the Migration Act 1958 which made it clear that a prohibited immigrant has no right to remain in Australia. While those provisions were a relevant factor, greater significance was, I think, placed by their Honours upon the general nature of the power, the width of the discretion conferred and the absence of any criteria in accordance with which it was to be exercised or of the prescription of any facts, matters or circumstances that the decision maker was bound to consider."
Clearly, I am bound to follow the views expressed by their Honours. It necessarily follows that I am of the opinion that the Minister for Immigration and Ethnic Affairs or delegate was not bound to provide to Mr Filo, as a person holding a temporary entry permit, an opportunity to be heard before that permit was cancelled pursuant to s.7(1) of the Migration Act 1958 (Cth).
It is therefore unnecessary for me to consider whether, in any event, the fact that Mr Filo was a member of the Tongan Defence Service and was absent without leave provided a special reason why the rules of natural justice were inapplicable in his case.
Like reasoning applies with respect to the making of a decision under s.8(2) of the Migration Act 1958 (Cth) that it is undesirable that a person be permitted to remain in Australia. It is not necessary that I set out the provisions of s.8(1) and (2). The reasoning of the Court in Gaillard's case would encompass the exercise of the discretion conferred by s.8(2). There are, indeed, patent reasons for concluding that a decision made with respect to a person referred to in paragraphs (a), (b), (c) and (d) of s.8(1) should not be delayed or limited by rules of natural justice, though the same considerations may not apply to a person falling within the category of persons referred to in (e) of s.8(1). Mr Filo was such a person. I was informed by counsel that the Minister had, by instrument, exempted members of the Tongan Defence Service. However, I need not consider this matter further.
The decision in the Gaillard case is not distinguishable from the present. That decision laid down the general rule that the rules of natural justice should not be implied into the decision-making process involved in the exercise of the s.7(1) discretion. The reasoning of the Court applies with like force to the exercise of the s.8(2) discretion. No matter has been put forward in the present case which would give rise to a legitimate expectation on the part of Mr Filo so as to differentiate his case from the ordinary. Indeed, Mr Filo's case is, if anything, worse than the ordinary. He came to Australia as a member of the Tongan Defence Service for a special purpose and when that purpose came to an end by virtue of the failure of his studies, he went absent without leave. Such a person has little ground for expectation that he will be permitted to remain in Australia or to put forward reasons why he should.
I now turn to the steps which were taken under or with reference to Division 3 of Part IXA of the Defence Act 1903 (Cth). Section 116E provides:
"116E.(1) In this Division, 'authorized officer' means an officer authorized by a chief of staff, by order in writing, for the purposes of this Division.
(2) A reference in this Division to the designated authority of a country is a reference to an authority designated for the purposes of this Division by the appropriate authority or officer of that country.
(3) A reference in this Division to the country to which a person belongs is a reference to the country from whose forces he is suspected of being, or, where he has surrendered himself, appears from his confession to be, an absentee without leave.
(4) For the purposes of the application of this Division in relation to the forces of a country, it is immaterial whether or not any body, contingent or detachment of those forces is present in Australia."
In association with this section should be read s.18 of the Defence Acts Amendment Act 1981, which continues authorisations which were in force under earlier provisions, and s.116M of the Defence Act 1903 (Cth) which permits a Chief of Staff to delegate certain of his powers.
There are in evidence in these proceedings copies of delegations by Chiefs of Naval Staff, including a delegation to the Chief of Naval Personnel, "To authorise officers who may issue a warrant for arrest of 'Visiting Forces' deserter or absentee" pursuant to s.19(2) of the Defence (Visiting Forces) Act 1963 (Cth). Pursuant to that delegation, the Chief of Naval Personnel on 30 June 1976 authorised
"... any Commanding Officer of one of Her Majesty's ships or establishments to issue a warrant for the arrest of a member of a Visiting Force under the Defence (Visiting Forces) Act, 1963-1975 who is alleged to be a deserter or an absentee from such Visiting Force when so requested by the 'Designated Authority' of that Force under the Act."
I am therefore satisfied that the Commanders of the two Naval Establishments, HMAS Nirimba and HMAS Lonsdale, who subsequently exercised powers as authorised officers under Division 3, had each been duly appointed an "authorised officer" for the purposes of Division 3.
However, no person has been designated by the appropriate authority or officer of Tonga as the "designated authority" of Tonga for the purposes of Division 3.
Section 116F provides:
"116F. Where the designated authority of a country in relation to which this section applies, by writing signed by him, requests an authorized officer for assistance in the apprehension of a member of the forces of that country, not being an Australian citizen, who is an absentee without leave from those forces, the authorized officer may, in his discretion, issue a warrant in accordance with the prescribed form authorizing a member or a special member of the Australian Federal Police or a member of the police force of a State or Territory or any member of the Defence Force to arrest that absentee."
There is in evidence a copy of a signal from the Australian High Commission in Tonga, dated 17 August 1984, which read, inter alia,
"TDS (Tongan Defence Service) letter of 8 May 1984 and signed by Commanding Officer TDS states : 'I wish to confirm that we would like to see Private Filo deported back to Tonga'.
2. All other references result from telephone discussions.
..."
In addition, Lt Commander K.M. Cush gave this evidence:
"So what you have is a situation that somebody in Tonga who is not a designated authority necessarily requesting the High Commission to do something?---No, that is not right. The person in Tonga, the commander of the Tongan Defence Force is a designated - he has not specifically made a designation to somebody, but he remains the authority to which the relevant section applies.
.....
... The situation is, we can proceed on the basis that we have the Tongan authorities whether designated or not made the request to the High Commission?---The request was made to the High Commission, and to go back one step - some of the signals which have not been entered today into evidence; in December we sent a signal to the Australian High Commission, and that is the body through whom we work in our dealings with Tonga, which basically set out the terms of section 116F of the Defence Act. It said that there is a provision for us to raise a warrant for Filo under that basis and we would need a request from the Tongan authorities. That is how that matter has arisen.
Lieutenant Commander, are you able to show me a document being a request in writing from the Tongan authorities directed to an authorized officer?---No, I am not.
You have not sighted such a document?---No, I have not."
Lt Commander Cush also gave this evidence:
"Before I go on to the submission, is it your understanding that the wish of the Tongan authorities that the applicant return to Tonga remains current?---The Tongans have made a number of signals via the High Commissioner in Tonga to us requesting that he be returned as soon as possible, and indeed, their resolve has been demonstrated in that they sent out an officer to collect him, and he is allegedly the fourth named respondent in this matter. We said to the Tongans that the Minister may take a couple of days to consider this because he could be out of Canberra and it may be better to hold the officer in Tonga until the Minister does actually approve it. Nevertheless, the Tongans sent him out straightaway."
It therefore appears that First Lieutenant John Petelo, the thirdnamed respondent, has been sent from Tonga to escort Mr Filo back to Tonga, but the evidence does not show that that person was designated for the purposes of Division 3 as the designated authority of Tonga or that he made any request for assistance pursuant to s.116F.
It was submitted on behalf of Mr J. Santamaria, counsel for the first, second and fourth named respondents, that the steps, if any, which complied with s.116F were the steps which were taken by Major Tupou, the Chief of the Tongan Defence Service.
Mr Santamaria submitted that the Chief of the Tongan Defence Service was the appropriate authority or officer of Tonga to designate a person as an authority for the purposes of Division 3 and that the power to make the request could be exercised by the appropriate authority or officer of the overseas country. He submitted that a power to designate an officer to perform a function carried with it the power to exercise that function. He further submitted that the provisions of Division 3 were directory, not mandatory, and were substantially complied with. Mr Santamaria submitted that the evidence of Lt Commander Cush showed that, in conversations with the Chief of the Tongan Defence Service, officers of the Australian High Commission in Tonga had made it clear what were the requirements of Division 3. He submitted that it should therefore be inferred that what was done was done in exercise of the powers which Division 3 conferred.
I have come to the view, however, that the provisions of s.116F were not complied with in substance or at all. Division 3 specifies a procedure which can have extremely serious consequences for the person whose return overseas is sought. It lays down a procedure to protect the interests of the member to be returned. One of the protections given is that there be an authority designated by the other country and that that authority make a request to an authorised officer of the Australian Defence Force. If that procedure is not carried out, the protection which Division 3 gives to the member is thereby weakened. Moreover, the fact that an authorised officer subsequently has, under s.116H, the duty to investigate whether there is a good and sufficient reason why the member of the overseas force should be released from custody is an additional indication that the Act intends that the steps which it prescribes will be carried out. Conformance with the procedure is one of the matters, and perhaps the principal matter, for that officer to investigate.
A designated authority is a person especially named or authorised. The person must not merely be authorised, he must be authorised or pointed out for the purposes of Division 3. The evidence discloses that no person was designated as a Tongan authority for the purposes of Division 3 and that no request was made under s.116F to the authorised officer of the Australian Defence Force who issued the warrant for Mr Filo's arrest, or indeed, to any authorised officer.
The facts show that no person was designated by the Chief of the Tongan Defence Service as the designated authority for the purposes of Division 3. The fact that First Lieutenant Petelo was sent to Australia without such a designation serves to emphasise the fact that the Chief of the Tongan Defence Service was not concerned to comply with the requirements of Division 3.
The Chief of the Tongan Defence Service did not, in my view, take an act in pursuance of Division 3. He simply requested the Australian High Commission in Tonga to have Mr Filo deported. No doubt the provisions of Division 3 were explained to him but there is no evidence that he took an act in pursuance of them. There was no designation and no request to an authorised officer of the Australian Defence Force. In particular, there was no request made to the Commanding Officer of HMAS Nirimba, the authorised officer who issued the warrant under s.116F.
In my view, this failure to comply with the procedure which s.116F lays down invalidated the steps that subsequently occurred.
On 25 July 1984, the Commanding Officer of HMAS Nirimba issued a warrant for the arrest of Mr Filo.
Section 116G provides:
"116G.(1) A person who is arrested under section 116F or who surrenders himself as being illegally absent from the forces of a country in relation to which this section applies may be detained -
(a) by a member or special member of the Australian Federal Police or a member of a police force of a State or Territory at a police station or at a place provided for the confinement of persons in lawful custody; or
(b) by a member of the Defence Force at a place provided for the confinement of members of the Defence Force who are accused or convicted oif offences,
for such time as is reasonably necessary to enable the person to be dealt with in accordance with section 116H.
(2) As soon as practicable after a person is taken into custody under sub-section (1), the person holding him in custody shall -
(a) cause an authorized officer to be notified that the person has been taken into custody; and
(b) take all reasonable steps to ensure that the person in custody understands his right to make a request under sub-section (3).
(3) A person in custody under this section may, on grounds specified by him, request that he be released from that custody.
(4) Where a person makes a request under sub-section (3), the person holding him in custody shall cause the request to be referred to an authorized officer."
On 9 August 1984, Mr Filo, who had earlier been arrested
and held in Immigration custody as a prohibited immigrant, was handed over to the Naval Forces pursuant to s.116G(1). He is still held in Naval custody at HMAS Lonsdale. On the same day, the Commander of HMAS Lonsdale, Commander H.J. Murdock, an authorised officer for the purposes of Division 3, was notified. On 10 August 1984, Mr Filo made a request to be released from custody which read:
"Request for release from custody pursuant to section 116G(3) Defence Act 1981 dated 10th August 1984
To Commander Murdock
Authorized Officer
under section 116H.
Dear Sir,
I hereby request my release from custody under s.116F of the Defence Act 1981 on the grounds specified below :
(1) When I failed my apprenticeship at HMAS Nirimba (MTP) in November 1983 I was told I would have to return to Tonga and I sought permission to see my relatives before I left. This was refused and because of this refusal I went absent without leave on about 5th December 1983.
(2) I travelled to Melbourne and stayed with my brother Joseph Paseka at 5 Joules Court Dear Park for about 3 days and then went travelling to Gippsland looking for work.
(3) In about mid-January 1984 I met Ms Pamela Singleton at the RSL Singles Club in Morwell and we commenced a relationship. Since that time we have been living as man and wife at an address situated at 7 George Street Traralgon. I am quite well known in the area doing odd jobs for people to help with the family finances. Ms Singleton is an Australian citizen.
(4) In May 1984 Ms Singleton and I decided to legally marry and we set a tentative date in the first or second week in September 1984. Since I have been in your custody Ms Singleton has visited me and our intention to marry and live together is genuine.
(5) It is my intention to apply to the Minister for Immigration and Ethnic Affairs for permanent residence in Australia on the basis of this marriage under section 6A(1)(b) of the Migration Act and I have every reason to expect that such an appliation will be successful as I can prove that the marriage will be genuine, that I am a person of good character (no prior convictions), and I am in good health (3 requirements of Dept. Immigration).
(6) Accordingly you may be assured that if released I would continue to live at 7 George Street Traralgon where I have lived for the past 6 months with my de facto wife and I would not abscond. As a condition of my release I would be prepared to report daily if required, to the officer in charge Traralgon Police Station until such time as my status in Australia is decided.
(7) I submit that there is good and sufficient reason why I should be released and I ask you to exercise your discretion under s.116H(1)(a) of the Defence Act.
SIGNED : I. Filo"
That request was received by Commander Murdock.
Section 116H provides, inter alia,
"116H.(1) Where an authorized officer is notified under paragraph 116G(2)(a) that a person has been taken into custody under sub-section 116G(1), he shall, after such investigation of the matter as he thinks necessary -
(a) if he is satisfied that there is a good and sufficient reason why the person held in custody should be released - direct that the person be released from custody under this Division; or
(b) if he is not so satisfied - refer the matter to the Minister.
(2) For the purposes of the carrying out of an investigation referred to in sub-section (1), the authorized officer shall have due regard to any request made by a person under sub-section 116(3).
....."
Commander Murdock did not give evidence to the Court but, on the evidence which is before the Court, I am satisfied that he did made an adequate investigation of the matter, that he was not satisfied that there was a good and sufficient reason why Mr Filo should be released and that he referred the matter for further consideration to the Minister for Defence.
It was submitted by Mr P. Rose, counsel for the applicant, that Commander Murdock failed to make an adequate investigation of the strength of Mr Filo's relationship with Ms Singleton and as to whether there were good reasons why Mr Filo should be permitted to remain in Australia to marry Ms Singleton. I am of the opinion, however, that a function of that type was not vested in Commander Murdock, who was merely an authorised officer for the purposes of Division 3. It is for the Minister for Immigration and Ethnic Affairs to decide whether a person who is a prohibited immigrant should be permitted to remain in Australia and to grant or withhold an entry permit accordingly. It is for the Minister for Defence to decide whether a person in custody should be handed over to a Service authority of the country to the forces of which the member in custody belongs. In my opinion, Commander Murdock's task was a much more limited one. He had the task of determining whether Mr Filo was a member of the Tongan Defence Service, whether he had been absent without leave and whether the procedures laid down in Division 3 had been complied with, including the procedure that there be a request from a designated authority to an authorised officer for the arrest. If he was satisfied that those steps had not been complied with, then he properly could be satisfied that there was good and sufficient reason why Mr Filo should be released.
Section 116H(2) requires an authorised officer to have due regard to any request made under s.116G(3). I am satisfied from the evidence that Commander Murdock did have regard to that request but I should add that I think it would not have been within his function to release Mr Filo from custody having regard to any of the matters raised therein. Those were matters relevant to a decision by a Minister of State.
I am therefore of the opinion that Commander Murdock made an adequate investigation of the matter, but that, there not having been a request from a designated authority to an authorised officer, he ought to have been satisfied that there was a good and sufficient reason why Mr Filo should be released.
A submission was sent to the Minister for Defence on 15 August 1984. It is not necessary that I deal with it in any detail. I am of the view that the submission adequately summarised the main features of the case and that there was no substantial matter of fact which was not put.
It was submitted to me by Mr Rose that the decision of the Minister made on that submission was invalid because Mr Filo was not given a reasonable opportunity to put his case in more detail to the Minister and that no adequate investigation was made of the strength of his attachment to Ms Singleton. I do not, however, think that this was a case which required the application of the rules of natural justice. Nor does it seem to me that the Minister was required to investigate fully Mr Filo's attachment to Ms Singleton. I think that that was a matter primarily for the consideration of the Minister for Immigration and Ethnic Affairs and the submission correctly stated the position that Mr Filo's temporary entry permit had been cancelled by the Minister for Immigration and Ethnic Affairs and that Mr Filo was a prohibited immigrant. It does not seem to me to have been necessary for the Minister for Defence himself to consider that aspect at length unless, in the circumstances, he thought it proper to do so. It was the function of the Minister for Immigration and Ethnic Affairs to determine whether a person should be entitled to stay in Australia by reason of a personal relationship. The concern of the Minister for Defence was rather the relationship between Australia and the Defence Service of Tonga and as to whether a member of the Tongan Defence Service should be handed over to that Service. That is not to say that the Minister could not have given weight to compassionate and like considerations had he seen fit to do so. But, in my opinion, there was no obligation upon him to give Mr Filo a chance to be heard on those matters or to investigate those matters in depth.
Section 116H(3) provides:
" (3) Where the matter is referred to the Minister under sub-section (1), the Minister shall -
(a) direct that the person held in custody be released from custody under this Division; or
(b) issue a warrant for the delivery of the person held in custody under this Division into the custody of a specified service authority of the country to which the person belongs at a place in Australia -
(i) specified in the warrant; or
(ii) determined by the authorized officer."
The Minister for Defence has signed a warrant for the delivery of Mr Filo into the custody of a specified service authority of Tonga. That warrant has not been given effect by reason, first, of an injunction by the Court and, subsequently, pursuant to undertakings given to the Court.
I am therefore satisfied that the procedures laid down by Division 3 were complied with save that there was no request by a designated authority of Tonga to an authorised officer as required by s.116F. In the result, I think that the subsequent arrest of Mr Filo pursuant to Division 3 was invalid and that Mr Filo should be released from custody under that Division.
Accordingly, in so far as the application seeks relief against the Minister of State for Immigration and Ethnic Affairs, the Court will order that the application be dismissed. In so far as the application seeks relief against the Minister of State for Defence, First Lieutenant John Petelo and Commander H.J. Murdock, the Court will declare that Mr Filo is entitled to be released from custody under Division 3 and will order that he be so released.
This is not an appropriate matter in which to make an order for costs. The matter was commenced by a misconceived Notice of Motion dated 16 August 1984, which sought, in substance, the issue of a writ of habeus corpus. There was argument on 16 August on that Notice of Motion. Subsequently, the matter was adjourned to 21 August 1984 and, in the meantime, an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) was lodged. But even when that matter came on for hearing, the evidence adduced on behalf of the applicant was scanty and the substance of the relevant facts was adduced by counsel for the respondents. Moreover, the applicant has not succeeded against the Minister for Immigration and Ethnic Affairs. I shall therefore make no order as to costs. However, as I have not been addressed on the particular form of relief sought, I shall reserve liberty to apply for any further or other order as may seem meet.
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