Gurnam Singh Sidhu v Minister for Immigration and Ethnic Affairs

[1984] FCA 353

Re: GURNAM-SINGH SIDHU
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG 241 of 1984
Immigration

COURT

THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
St. John J.

CATCHWORDS

Immigration - judicial review of decision to deport - refugee status refused - whether decision reviewable

Administrative Decisions (Judicial Review) Act 1977 Sections 5, 13

Migration Act 1958 Sections 6A(1)(c) and (e), 18

HEARING

MELBOURNE

#DATE 5:11:1984

ORDER

1. The application is dismissed.

2. The applicant is to pay the respondent's costs.

JUDGE1

The applicant seeks an order for review of certain decisions made against him pursuant to the Migration Act 1958 ("the Act"). Those decisions were as follows:-

1. On 15 June 1984 that the application for refugee status be rejected.

2. On 10 August 1984 that an application for permanent resident status be rejected.

3. On 13 August 1984 that the applicant be refused a temporary entry permit.

4. On 24 August 1984 that the applicant be deported.

1. Dealing first with the deportation order, the grounds upon which it was attacked may be summarised as follows:-
   
   (a) That the decision-maker failed to take into
   

account evidence as to the likely arrest of the applicant should he be returned to India or if such evidence were taken into account, it was not accorded sufficient consideration.

(b) Failure to take into account compassionate and

humanitarian grounds.

(c) Failing to re-open or reconsider the

application for refugee status.

(d) Failing to take into account of one of the

rights to have status reviewed as stated in the "New Review Rights" published by the Minister in 1982.

(e) An improper exercise of power in that the

decision was so unreasonable that no reasonable person could have so exercised the power.

(f) An improper exercise of power constituting an

abuse in that the decision was made with a view to avoiding diplomatic or political embarrassment to the Government of Australia.

1. The following facts are taken from the statement furnished pursuant to S.13 of the Administrative Decisions (Judicial Review) Act 1977 ("the A.D.(J.R.) Act") and are not in dispute. The applicant is a citizen of India of the Sikh religion and a single man who arrived in Australia on 6 April 1983 as a visitor and was granted a conditional (employment prohibited) temporary entry permit valid for one month. On 13 May 1983 a similar permit was granted to expire on 13 October 1983. The applicant has two brothers resident in Australia. His parents, two other brothers and a sister reside in India. The applicant was apprehended at his place of work on 9 May 1984 and was taken into custody pursuant to S.38 of the Act. The next day he was interviewed and, inter alia, stated that he had done seasonal work and that he wished to remain in Australia due to the political instability in the Punjab and that fact that he, as a Sikh, was arrested on two previous occasions, was ill-treated in gaol and he desired to be considered for refugee status.

2. On 14 May 1984 the applicant applied for permanent resident status and on 23 May 1984 for refugee status. On 25 May 1984 the applicant was again interviewed and said that he had taken part in demonstrations which had resulted in violent clashes with the police in India, that he was a member of the Sikh Student Federation and confirmed his two arrests previously mentioned.

3. On 1 June 1984 the Determination Of Refugee Status ("D.O.R.S.") Committee unanimously decided that his application for refugee status should be refused and on 15 June 1984, the Minister's delegate accepted the committee's recommendation and refused to grant refugee status. As a result of a letter from the Legal Aid Commission of Victoria dated 17 May 1984, consideration was given to the question of grant of permanent resident status on compassionate and humanitarian grounds. Further temporary entry permits were also considered. On 6 June 1984 the Legal Aid Commission furnished the Department with a statutory declaration sworn by the applicant's brother Satnam-Singh Sidhu and dated on that day. On 21 June 1984 the Department was advised by the Australian Embassy in New Delhi that there was no reason why politically active Sikhs could not return to and make their home in India.

4. The applicant was twice interviewed with a view to determining whether the applicant was eligible for permanent residence under paragraph (e) of sub-section 6A(1) of the Act. It was implicit in the departmental attitude that had the criterion of "strong compassionate and humanitarian grounds" been established a temporary entry permit would have been granted. The first interview took place on 22 June 1984 and the second on 20 July 1984. At the last-mentioned interview, reference was made to one of the facts alleged in the statutory declaration of his brother to the effect that, on a visit to India, his brother had been arrested by police after his brother had informed the police that the applicant was overseas. On 10 August 1984 an officer of the Refugees and International Branch of the Department in Canberra decided that, in all the circumstances, grounds did not exist to warrant the grant of permanent residence based on strong compassionate and humanitarian grounds. On 13 August 1984 an officer of the Visitors Section, Operations No. 2 Branch of the Department decided that no grounds existed for a further temporary entry permit.

5. The evidence or other material on which the findings were based were set out and included was a summary of the policy on deportation of prohibited non-citizens, in which category the applicant was, as follows:-
   
   "(i) Persons who enter Australia as the holders of
   

visitors' visa are expected to honour the undertakings contained in visa applications signed overseas.

(ii) It is in the public interest to ensure that

persons abide by normal immigration selection processes and do not queue-jump by entering or remaining illegally in Australia to the prejudice of prospective migrants who abide by the procedures.

(iii) The presence of such queue-jumpers is inimical

to Government control of immigration programs as well as impacting upon job availability for legal residents.

(iv) Prohibited non-citizens who do not leave

voluntarily should expect to face the prospect of deportation when located."

The departmental file was included in the evidence and was before me as an exhibit.

1. The delegate of the Minister, Lionel Barry Woodward, gave as reasons for the decision to deport the applicant, the following:-
   
   

1. The applicant became a prohibited non-citizen following the expiration of his temporary entry permit.

2. The applicant does not fulfil any of the conditions of sub-section 6A(1) of the Act.

3. The findings of the D.O.R.S. Committee.

4. The close attention which had been given to the applicant's case.

5. The breach of the condition of entry by working.

6. The absence of strong compassionate and humanitarian grounds.

7. Blatant disregard of the normal migration selection procedures and migration law.

1. Counsel for the applicant's submissions really boil down to the assertion that sufficient weight had not been given to various factual situations, in particular the conflict between the Sikhs with authorities in the Punjab which were given press publicity in this country and the experience of the applicant's brother on his return to India. The respondent's answers to interrogatories included an admission that, for the purposes of making the decision to deport, the delegate assumed the truth of the matter contained in the statutory declaration.

2. As to the alleged failure to take into account or give weight to the contents of the statutory declaration, it is apparent from the departmental file that consideration was given to it and each decision-maker had all available material before him or her at the time recommendations were made. Even if it were the law that the rules of natural justice were applicable to the exercise of the power to deport, there is no evidence, in my view, that the applicant was not afforded natural justice.

3. As to the decision of the D.O.R.S. Committee that the applicant lacked "refugee status" within the meaning of paragraph (c) of sub-section 6A(1) of the Act, respondent's counsel submitted that such a decision is not one made "under an enactment" within the meaning of the A.D.(J.R.) Act. The following is the text of that paragraph:-
   
   

"6A(1) An entry permit shall not be granted to an immigrant after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say --

....

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

..."

1. That submission, it was argued, was supported by the
   decision of Stephen, J. in Simsek v. Minister for Immigration and Ethnic Affairs & Anor. (1982) 40 ALR 61. There, injunctive relief was refused a prohibited immigrant, inter alia, on the basis of the rule that unless a treaty becomes part of municipal law by legislation, it creates no legal rights. Nowhere in the report of that case is S.6A of the Act adverted to and the proceedings were not, of course, brought pursuant to the A.D.(J.R.) Act. It appears to me that paragraph (c) of sub-section 6A(1) of the Act provides for a decision by the Minister which could well be characterised as administrative even though the criteria to be applied in its making are not part of the municipal law of the country. In this I respectfully agree with the decision of Davies, J. in Mayer v. The Minister for Immigration and Ethnic Affairs (unreported) 10 October 1984. Additionally, the applicant was never, during the relevant time, eligible for consideration as he was not the holder of a temporary entry permit.

2. The submissions put on behalf of the applicant relating to the publication the "New Review Rights" fail because the Act overrides such "rights" and their publication does not accord immigrants any right outside the Act. Further, the applicant, in his affidavit refers to making an application for review and subsequent interviews with departmental officers, apparently part of the review process. As to any "legitimate expectation" possibly arising from such publication, the recent Full Court decision of The Minister for Immigration and Ethnic Affairs v. Arslan and Aydin (unreported) 17 August 1984 is against such an expectation arising.

3. As to the majority of the submissions made by counsel for the applicant, I do not propose to deal with them in detail. They lacked cogency, in some cases they were based upon assertions that both High Court and Federal Court judges were in error in the interpretation of the Act and were, in general, founded upon the degree of weight to be given to facts alleged by the applicant. Departmental policy necessarily involves giving different factors more emphasis than others. It is clear that the delegate was entitled to give overriding emphasis to the policy considerations set out above and it is clear from the statement made pursuant to S.13 of the A.D.(J.R.) Act that he did so. Abuse of the migration system, disregard for the provisions of the Act, "queue-jumping" and breach of conditions of entry were clearly regarded with disfavour. The choice between the assessment of the Australian Embassy and the applicant as to the possible persecution of Sikhs on their return to India is one that the decision-maker is entitled to make. Having carefully read the departmental file, I can detect no improper approach to the various applications made, let alone errors in law.

4. The application is dismissed and the applicant is ordered to pay the respondent's costs.