Haj-Ismail, Haydar v The Minister for Immigration and Ethnic Affairs

[1981] FCA 144

Re: HAYDAR HAJ-ISMAIL; MONA AHDAB HAJ-ISMAIL
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1981) 56 FLR 67
No. G68 of 1981
Administrative Law - Immigration and Aliens - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Ellicott J.(1)

CATCHWORDS

Administrative Law - Immigration - Deportation Order - Application for order of review - Migration Act ss. 6, 7, 11, 14, 20, 27 - Regularisation of Status Program (ROSP) 1980 considered - entry permit - temporary entry permit - whether prohibited immigrant for 5 years - deportation - private overseas student - nature of discretion to grant resident status - whether rules of natural justice apply - whether applicants had legitimate expectation - whether Minister erred in law in refusing resident status - whether applicants entitled to opportunity to make representations.

Production: Sensitive departmental documents subpoenad - production to applicants objected to - affidavit by Attorney-General - documents tendered to court - whether public interest in administration of justice outweighs public interest in maintaining confidentiality of documents - assistance to court by Counsel for Crown on question of disclosure - power of courts exercising Federal Jurisdiction to determine what documents available for inspection part of judicial power of Commonwealth vested in courts - not open to Parliament to limit.

Administrative Decisions (Judicial Review) Act, 1977

Migration Act 1958

Immigration and Aliens - Temporary entry permit - Permits continued for broken periods - Private overseas student - Regularization of Status Programme - Whether applicant had legitimate expectation - Expiry of permits - Prohibited immigrant - Refused to grant resident status - Error of law - Legitimate expectation in being granted further permit - Natural justice - Deportation order set aside - Migration Act 1958 (Cth), ss. 6, 6A, 7, 18, 20 - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5 (1) (f).

Practice - Subpoena - Production of sensitive departmental documents - Objected to by Government - Public interest - Desirability of counsel for Crown being aware of contents - Judicial power of court to determine whether documents should be made available.

HEADNOTE

In 1972 the first applicant entered Australia on a temporary entry permit for one month and received further such permits for parts of the next nine years. The last such permit expired in March 1981. In 1975 he was approved as a private overseas student in Australia and his wife and daughter arrived and were granted temporary entry permits. In 1976 applications were made by the applicants for resident status under the Government's amnesty programme but were rejected as it was stated that the first applicant's status as a temporary entry private student was still quite legitimate. In 1980 the first applicant made application for resident status under the Government's Regularization of Status Programme the respondent having indicated on 20th October, 1980, that the applicants would be granted resident status if they were able to meet normal migration health and character requirements. After considering various reports about the alleged activities of the first applicant the respondent refused the applications for resident status and decided to deport him, his wife and daughter as prohibited immigrants under s. 18 of the Migration Act 1958.

Upon an application for an order of review in respect of the respondent's decision,

Held: (1) In the ordinary case the discretion of an officer to grant or refuse resident status under the Migration Act 1958 is not subject to the rules of natural justice.

(2) Neither the Minister's decision of 18th September, 1980, no the letter conveying it gave either of the applicants a legitimate expectation of being granted resident status.

Salemi v. MacKellar (No. 2) (1977), 137 CLR 396, applied.

(3) The first applicant had not ceased to be a prohibited immigrant by reason of s. 7 (4) of the Migration Act 1958 as there had not been an unbroken period of five years during the whole of which he had been a prohibited immigrant.

(4) The respondent's decision to refuse the applicants resident status involved an error of law and should be set aside pursuant to s. 5 (1) (f) of the Administrative Decisions (Judicial Review) Act 1977.

(5) In the special circumstances of this case the applicants were entitled to an opportunity to be heard before a further permit was refused or a deportation order was made. The first applicant had a legitimate expectation of being able to complete his studies in Australia.

Salemi v. MacKellar (No. 2) (1977), 137 CLR 396; R. v. MacKellar; Ex parte Ratu (1977), 137 CLR 461, distinguished.

(6) Orders set aside.

Observations on production of Government documents to the court and judicial power to determine which documents should be produced.

HEARING

Sydney, 1981, June 30; July 1-2; August 25. #DATE 25:8:1981

ORDER TO REVIEW.

The applicants sought to review pursuant to the Administrative Decisions (Judicial Review) Act 1977 the decision of the respondent to deport them.

J. D. Traill Q.C. and M. J. Neil, for the applicants.

R. J. Burbidge Q.C. with L. Katz, for the respondent.

Cur. adv. vult.

Solicitors for the applicants: Horowitz & Bilinsky.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

T. J. GINNANE

ORDER

1. DECLARES that the decision of the Minister of 26 March 1981 is void and of no effect and ORDERS that it be set aside.

2. DIRECTS that the applications for resident status of each of the applicants be referred to the respondent to be dealt with by him or officers of his department according to law.

3. DECLARES that each of the deportation orders made by the respondents on 4 June 1981 is void and of no effect and ORDERS that each be set aside.

4. DIRECTS:-

(a) that before any decision is made refusing to grant to either of the applicants a further temporary entry permit each of the applicants be given an opportunity to make representations relating to character, the continuation of Mr. Haj-Ismail's studies in Australia and the matters referred to in the Australian Federal Police Report of 19 January 1981.

(b) that before a deportation order is made against either of the applicants each of the applicants be given an opportunity to make representations of the nature referred to in paragraph (a) above.

5. ORDERS that the respondent pay the applicants' costs of these proceedings.

6. ORDERS that each of the parties have liberty to apply on two days notice.

7. ORDERS that exhibit 2 may be returned to the Commonwealth Crown Solicitor notwithstanding an appeal in this matter on his undertaking to retain the exhibit intact pending any such appeal.

JUDGE1

The Minister for Immigration and Ethnic Affairs (the respondent) has ordered the deportation of the applicants, Haydar Haj-Ismail and Mona Haj-Ismail. They have applied under the Administrative Decisions (Judicial Review) Act 1977 (hereinafter called "the Review Act") seeking an order of review in respect of the respondent's decision relating to their deportation.

The applicant, Haydar Haj-Ismail was born on 15 December 1932 at Jwaiza, Syria. He was educated at Damascus High School and at the University in Damascus and obtained there the equivalent of a Bachelor of Arts degree. Subsequently he attended the American University in Beirut where he obtained a degree of Master of Arts. He married the second applicant in 1966 and prior to coming to Australia was a teacher in private schools in Lebanon, Jordan and Syria.

On 18 November 1972 he entered Australia and a temporary entry permit for a period of one month was granted to him on entry. He has remained in Australia ever since. From time to time further temporary entry permits have been granted to him. These were granted for the following periods:-

9 January 1973 to 18 March 1973
8 July 1975 to 30 June 1976
1 December 1976 to 8 August 1977
24 August 1977 to 28 February 1978
24 April 1978 to 31 January 1979
25 August 1980 to 1 March 1981

It will be noted that there were periods between 18 November 1972 and 1 March 1981, totalling approximately 4 1/2 years, during which Mr Haj-Ismail was not the holder of any entry permit.

On 25 March 1975 he was approved as a private overseas student in Australia.

His wife, Mona and his daughter Rolla arrived in Australia on 17 September 1975 and were granted temporary entry permits authorising them to remain in Australia for three months. Thereafter further temporary permits were granted to them from time to time, the last being granted on 29 October 1980 authorising them to remain in Australia until 1 March 1981. These permits were also for broken periods.

Mr Haj-Ismail says that shortly after he arrived he made arrangements with Dr John Howse, then a senior lecturer in Philosophy at the University of Melbourne to study under him to obtain his Doctorate of Philosophy. In 1973 Dr Howse went to South Africa and Mr Haj-Ismail was assigned to a new supervisor. Because he found that the studies there were not consistent with his main interest he came to Sydney and in 1974 went to Macquarie University with a view to obtaining a Doctorate of Philosophy. Before being accepted for a doctorate thesis he was required to complete certain courses and these were finished in 1974- 1975. In 1975 he started research on his PhD thesis proper at Macquarie University under the supervision of Dr Ross Poole. On 25 March 1975 he was approved by the Immigration Authorities as a private overseas student in Australia.

Mr. Haj-Ismail continued under Dr Poole's supervision. At the end of 1979 he submitted his thesis to the Department of Philosophy on the theme "The Concept of property in Marx". At the end of 1980 he was advised that the assessors were divided and he was given one year to write a thesis for an honours masters degree in lieu of a PhD. He has undertaken research for the masters degree and in March 1981 presented his thesis on the same topic as he had adopted for the PhD. This thesis is being assessed and it is his stated intention, subject to obtaining the honours degree to obtain a PhD at another Australian University.

On 22 March 1976 Mr Haj-Ismail applied for resident status under a then current amnesty program which related to prohibited immigrants. On 5 November 1976 he was informed that his application and another submitted by his wife had been rejected on the ground that the amnesty was for persons who were in Australia illegally. The letter went on:-
"Your status in this country as a private student, with dependants, is still quite legitimate and therefore remain that of a temporary entry private student. Please complete the enclosed forms . . . . . . and return them to this office with your valid documents (if applicable).

On receipt of these, consideration will be given to an extension of your temporary entry permit and issue of a multiple re-entry visa, valid for a period, appropriate to your present academic position."

As will be noted from the details of temporary entry permits set out earlier, although at the date of his application under the amnesty he was the holder of a current entry permit, at the time the letter was written to him on 5 November 1976 no current temporary entry permit was in force. At that date he was a prohibited immigrant.

At about the same time his passport was lost, apparently by the Department of Immigration and Ethnic Affairs, and he was issued with a Certificate of Identity, dated 7 December 1976 for the sole purpose of providing him with identity papers in lieu of the lost passport.

On 19 June 1980 the Minister for Immigration and Ethnic Affairs announced a special program described as the Regularisation of Status Program (ROSP). It enabled many people then in Australia without permanent resident status to apply for it. The announcement of the program by the Minister included the following statements:-

"Such persons, whether here legally or illegally who had arrived in Australia prior to 1 January 1980 and who wished to remain permanently in Australia, could apply for the grant of permanent resident status under a special Regularisation of Status Program. They would have to apply before 31 December 1980.

The Minister said that those persons still lawfully in Australia, but who had previously applied for permanent resident status and whose application had been refused or was still under consideration, could reapply or request that their current application be considered under the Regularisation of Status Program. This would need to be done before 31 December 1980.

All applicants and all members and their immediate families, in Australia or overseas, would have to meet health and character requirements for migration. They would have to have been of good character before coming to Australia and while in Australia. In addition, the applicant and all members of their immediate families must have a genuine intention of residing permanently in Australia.

The Minister stressed that these arrangements did not provide for the grant of permanent resident status of persons who were in Australia as overseas students or foreign diplomats or officials, employees or members of their families. Government policy was firm that overseas students should return home at the end of their studies to apply the skills acquired in Australia."

It is clear that this announcement was made with the intention of introducing legislation which would, after a specified date, restrict the right of persons to apply for and obtain permanent resident status whilst they were in Australia. These amendments were subsequently passed by the Parliament and I shall refer to them later.

By letter dated 17 July 1980 Dr H.R. Edwards, M.P. requested, on behalf of Mr Haj-Ismail and his family, that special consideration be given to granting them resident status in Australia. After considering the matter the Minister, on 20 October 1980, wrote to Dr Edwards in the following terms:-
"Dear Dr Edwards,

I refer to your representations concerning Mr H.R. Haj-Ismail and family of 22/5 Dural Street, Hornsby, 2077 who wish to remain in Australia with resident status.

If he has not already done so, Mr Haj-Ismail should lodge a formal application for change of status for himself and his family at the Sydney office of the Department(al) of Immigration and Ethnic Affairs.

Provided they are able to meet normal immigration health and character requirements, they will then be granted change of status to residents.

Yours sincerely,
IAN MACPHEE."

The decision to grant change of status was made by the Minister on 18 September 1980 as a result of a submission of that date from his Department. It contained the following paragraph:-

"Mr Ismail and his family do not come within any of the categories normally eligible for the grant of resident status and also do not qualify under the provisions of R.O.S.P. However, you may wish to approve change of status as a special case in view of Mr Haj-Ismail's academic achievements, the family's lengthy stay in Australia and the assurance that employment is available for both Mr and Mrs Haj-Ismail. Usual health and character requirements would be applicable."

The Minister's note on the submission was "I agree. Approved as you suggest. Please prepare letters accordingly."

On 30 October Mr Haj-Ismail made application for resident status under the regularisation of status program. This application was accompanied with the prescribed fee of $50.00. When he handed in the form he asked when he would have the medical examination and he was told in about a month's time.

On or about 14 November 1980 the Deputy Secretary of the Department, Mr Volker, advised the Minister by telephone that it had come to his attention that the Department held files of a security nature in relation to a person known as Aboud who was the same person as the applicant, Mr Haj-Ismail. On or about the same date, the Minister, after discussing the matter with Mr Volker, directed him to ensure that no further action be taken with respect to Mr Haj-Ismail's application for resident status until the information concerning the person Aboud Aboud was considered and further enquiries could be made. The applicants, through their Solicitors, attempted to support their applications for resident status by lodging health certificates and character references. There is no dispute in these proceedings that both applicants and their daughter Rolla would meet the health requirements laid down for resident status by the Minister.

On 19 January 1981 the Australian Federal Police prepared a report on Mr Haj-Ismail, which, shortly thereafter, was supplied to the Department of Immigration and Ethnic Affairs. It set out a series of allegations against him and was in the following terms:-
"Subject was born on 15 December 1932, in Jordan or Syria and arrived in Australia on 18 November 1972. He studied at the Melbourne and Macquarie Universities and is believed to hold a Ph.D. He joined the Syrian Social Nationalist Party (SSNP) in Lebanon in 1963 and was apparently sent to Australia to organise the party's activities.

Subject first came to notice in September 1973, when he was recorded as a visitor to the premises of Edmond Melki in East Melbourne during the period of the visit of Abdulhamid Abdullah Azzam, the Al Fatah member arrested and deported from Australia. In fact he developed a close friendship with Melki who is considered to be a leading SSNP member in Melbourne, however, the two quarrelled over party policy and leadership. In the event subject was elected leader of the SSNP in Australia and it is well known that he is highly thought of by the party hierarchy in Beirut.

There were reports of violence resulting from disputes within the membership of the National Gathering of Parties and Progressive Forces of which the SSNP was a foundation member. These acts of violence are not well documented in police records, however, it is reported that in 1979 at a meeting of the Union of Palestinian Workers (UPW), Aboud, with some supporters, was ordered out of the meeting for constant interjections. At a subsequent meeting, it was alleged, subject with some supporters forced an entry to the hall and assaulted members and destroyed fittings.

Later a shot-gun blast damaged the rear door of the UPW leader's car. The following day six .22 bullets were fired through the front window of a shop owned by a close friend. N.S.W. Police were unable to establish who the offenders were in these cases, but it is apparent that these incidents and others alleged to have occurred during 1978-79, were the result of Aboud's attempts to enforce his authority on some organisations in the Arab community.

Subsequent to the Syrian support for Iran in the current war with Iraq, Aboud assumed the mantle of authority and arbiter resisting and opposing any views in support of Iraq. This led to the series of recent incidents including the beating of the editor of Sada Loubnan by five members of the SSNP; the attack on the co-editor of An Nahar on 17 October by seven members of the SSNP; the attack on 25 October on a member of the Iraqi Baath Party by three members of the SSNP whilst he was delivering copies of An Nahar, and the mass thefts of An Nahar on the night of 24 October, which issue contained an attack on the SSNP and Aboud Aboud.

It is common knowledge among the Arab community, particularly in Sydney, that Aboud Aboud heads a 'Mafia' type group equipped and prepared to dispense violence against those who stand in his way. He moves with bodyguards and gives the appearance of wealth beyond his legal means. Some look upon him as the 'Godfather' of the Arab community. His official income is derived from party membership fees."

The report became an annexure to a submission to the Minister admitted in evidence and dated 27 February 1981. That submission suggested that prior to 27 February 1981 the Minister had supported the idea that Mr Haj-Ismail's temporary entry permit should be allowed to expire, that it not be renewed and that should he fail to depart from Australia voluntarily, he should be deported as a prohibited immigrant. It was also suggested in this submission that the Minister may wish to speak with Dr Edwards and inform him confidentially of the reasons for refusing resident status. A draft letter to Dr Edwards was attached and it was pointed out that it did not give the specific reasons for rejection as these were based on a confidential report.

A further submission went to the Minister in March 1981. It stated (inter alia):-
"2. The police do not have a case against Haj-Ismail which would stand up in court, but they have no doubt about his connection with recent violent incidents. I understand the Arabic Community in Sydney is very anxious to see him go and we can expect them to support deportation which may well be where we will end up since he has put it about that he will not leave voluntarily.

3. The temporary entry permits granted to the family expired on 1.3.81; they are now prohibited immigrants; and they can be asked to leave failing which deportation action can follow.

4. Haj-Ismail lodged an application under ROSP following your letter to Dr Edwards on 20.10.80 (TAB "D") but as a student is ineligible for consideration.

5. Whatever may have been said in your earlier letter to Dr Edwards, the only way in which he can now be considered legally for change of status is under the "humanitarian" provisions of the amended Migration Act. It is a matter of judgment whether it is considered there are 'strong compassionate or humanitarian grounds' involved as per Section 6A(1)(e) but I do not see the application falling within this category.

6. We can expect Haj-Ismail to fight the decision and take it to court. However, I believe we have no option but to try if only as a gesture to the community. He will have a hard battle.

7. It is recommended that the grant of resident status be refused and I suggest the family be given four weeks to leave.

This submission had attached to it a draft letter to Dr Edwards. The Minister, on 26 March 1981, approved the recommendation and signed the letter to Dr Edwards.

The letter to Dr Edwards conveying the Minister's decision, dated 27 March 1981, was as follows:-
"Dear Dr Edwards

I am writing again concerning your representations on behalf of Mr H Haj-Ismail and family previously of 22/5 Dural Street, Hornsby, 2077, who wish to remain in Australia with permanent resident status.

As you will know, Mr Haj-Ismail lodged an application under the Regularisation of Status Program but as he has private student status he is ineligible for consideration under these arrangements.

Since I wrote to you previously, I have undertaken a review of Mr Haj-Ismail's application for resident status in the light of full reports presented. After careful consideration I have decided that resident status should not be granted.

As the temporary entry permits issued to the Haj-Ismail family expired on 1 March 1981 they are prohibited immigrants. However, I have decided that they may remain in Australia until 24 April 1981 in order to finalise their affairs.

Mr Haj-Ismail should produce evidence of departure arrangements for himself and his family to the Regional Director of the Department of Immigration and Ethnic Affairs, Sydney, by 6 April 1981.

Failure by the Haj-Ismail family to leave Australia as directed will result in action being taken to enforce their departure.

Yours sincerely,
IAN MACPHEE."

On 1 April 1981 the Regional Director of the Department also wrote to Mr Haj-Ismail about the matter. It warned that failure to leave Australia by 24 April 1981 would result in action to enforce their departure.

After receiving a copy of the Minister's letter, proceedings were instituted in the Supreme Court of New South Wales by Mr Haj-Ismail seeking orders and declarations enforcing the Minister's decision of September 1980.

In April 1981 numerous references were forwarded to the Department by the applicants supporting the grant of permanent status. These were supplied by officers of organisations and by individuals from various walks of life who had known Mr Haj-Ismail since he came to Australia. These generally support the view that he was a person of good character. At some stage a committee known as the "Justice for Haj-Ismail Committee" was established and it's president at the time of the hearing was Sara Waddell. She gave evidence by affidavit in which she produced a copy of a petition said to be collected by the committee and signed by approximately 9,000 signatures. A copy of this petition was admitted in evidence.

On 7 May 1981 the applicant's Solicitors wrote to the Minister concerning the petition which apparently at that stage contained 5,000 signatures in the following terms: -
"I have received instructions to act for the 'Justice for Haydar' Committee whose President is Miss Sara Waddell who has written to you previously regarding Mr Haydar Haj-Ismail. You will recall that Miss Waddell is President of the University of New South Wales Students Union.

The Committee has collected about 5,000 signatures on a Petition and is in the process of collecting more. The Petition supports Mr Haj-Ismail and requests that he be allowed to remain in Australia.

Miss Waddell and a delegation from the Committee would like to present a copy of the first 5,000 signatures to you and discuss the matter with you at an early opportunity.

They do not wish to have the matter become a political football and therefore do not propose, at this time, to present the Petition to Members of Parliament for presentation to the Parliament.

Miss Waddell instructs us that there are many facets of the matter about which you should be advised particularly as she believes that you have been prejudiced against Mr Haj-Ismail by various sources.

I am therefore writing on behalf of the Committee to ask that you receive a delegation of the Committee at your earliest convenience either in Canberra or in Sydney.

I would be pleased to hear from you or your staff at your earliest convenience so that appropriate arrangements may be made.

As a matter of information, I am sending a copy of this letter to the Regional Director in Sydney

Yours faithfully,
HOROWITZ & BILINSKY"

The applicant's Solicitor was informed that the respondent would not give a personal interview in relation to the matter.

On 28 April 1981 Mr Volker, the Deputy Secretary, sent a memorandum to the Minister in which he discussed the relative advantages of deporting the applicants or allowing them to depart voluntarily after six months. In it Mr Volker said he saw the balance of advantage being to avoid a confrontation by allowing voluntary departure. The question of what the Minister would do remained under consideration after this date. On 15 May the applicant's Solicitor had a telephone conversation with Mr Volker and his note of that conversation was admitted in evidence. His account of it is as follows: -
"He said that Mr Aboud Aboud was adamant that he would not leave Australia voluntarily either now or in four months time or at any other time. I mentioned that a letter had been received from his supervisor at Macquarie University indicating that it would be three or four months before Mr Aboud Aboud's MA thesis could be examined and appraised. Mr Bilensky said that even so there was no scope for an arrangement in that respect because of his client's firm position about voluntary departure. In any event, it was now extremely unusual for MA candidates to be asked to attend an oral examination."

A final recommendation on the matter was made by the Department on 3 June 1981. The relevant submission contained the following recommendation: -
"That you sign the attached deportation orders in respect of Aboud Aboud and his wife and that you honour the undertaking given on your behalf concerning notice of deportation action".

On 4 June the Minister approved the recommendation and signed deportation orders bearing that date against each of the applicants pursuant to the power conferred on him by s.18 of the Migration Act 1958 (hereinafter called "the Act"). Each order recited that the deportee was a prohibited immigrant by virtue of s.7 of the Act in that he or she was the holder of a temporary entry permit which had expired and no further temporary entry permit applicable to him or her came into force upon that expiration or had been granted to him or her since.

The submission had annexed to it a number of documents including: -

(a) a departmental minute of 28 April in which it had been recommended that the Minister take into consideration the matters adverted to in it including certain security matters, the correspondence and references annexed and reaffirm his decision not to grant resident status to the applicants.

(b) an opinion received from Counsel;

(c) the annexures to the minute of 28 April 1981;

(d) the letter of 7 May 1981 referring to the petition;

(e) a security assessment from A.S.I.O.

(f) a letter dated 18 March 1981 The Hon. V.A. Chadwick, M.L.C. to the Minister with the material enclosed.

This submission also mentioned that Mr Haj-Ismail had commenced proceedings for defamation in the Supreme Court following certain allegations about his conduct in ethnic papers. Paragraphs 9 and 14-17 (inclusive) were in the following terms: -
"9. Aboud's solicitor, Mr Bilinsky of Horowitz and Bilinsky, contacted the Deputy Secretary on 15 May 1981 and advised that Aboud was adamant that he would not leave Australia voluntarily either now, or in four months' time or at any other time. Macquarie University has advised that Aboud's MA thesis will require 3 - 4 months to examine and appraise but Mr Bilinsky said there was no possibility of an arrangement in that regard in view of Aboud's firm position against voluntary departure.

14. Criticism of any deportation action is likely to arise on the basis that Aboud's removal from Australia will prejudice his current defamation actions. It is the Department's practice to proceed with deportation irrespective of outstanding civil litigations instituted by a deportee in Australia. That action is taken on the understanding that if it is established that his presence in Australia at the time his case is heard is essential, consideration will be given to allowing him to return on a temporary basis.

15. It is open to the Commonwealth in any legal action to claim privilege and the non-disclosure of documents which are of a security nature. Specific provision exists under the ADJR Act for the Attorney-General to certify that it would be contrary to the public interest to disclose information that would prejudice the security, defence or international relations of Australia or hamper police investigations or activities. Whether such a certificate could be obtained in relation to the various sensitive matters we have received from AFP and ASIO will depend upon the attitude the Attorney-General takes to each one of those matters. There is no doubt that the Attorney-General would issue a certificate in relation to the most sensitive documents. It would not be possible to prevent the disclosure of the contents of all the Department's files even though the files themselves have been classified 'Secret'.

16. Aboud Aboud is a prohibited immigrant pursuant to Section 7 of the Migration Act, as is his wife Mona Ahdab, and their child. It has been decided that he and his family may not be granted resident status. There is no basis for doing so. Section 6A of the Migration Act does not apply to Aboud. He must be considered under the previous policy applicable to change of status. Under that policy prohibited immigrants were only eligible when compelling circumstances existed in favour of allowing them to remain. He has refused to depart voluntarily and his wife has apparently not made any move to leave. Accordingly, on those grounds the making of orders for deportation of Aboud and his wife would appear to be the indicated course. There is the additional important point that ASIO has given an adverse security assessment. This has now been received and is at Attachment 'E'.

RECOMMENDATION

17. That you sign the attached deportation orders in respect of Aboud Aboud and his wife and that you honour the undertaking given on your behalf concerning notice of deportation action.

At the hearing the applicants subpoenaed the files of the Department relating to the applicants. These included certain documents or portions of documents the production of which to the applicants the respondent objected on the ground that it was not in the public interest that they be made available for inspection. In relation to some of the documents the objection was supported by an affidavit by the Attorney-General, Senator The Hon. Peter Durack, Q.C. Those documents were identified at the hearing and produced for my inspection. After reading them I upheld the respondent's submission and indicated that I was not prepared, at that stage, to make them available for inspection. The documents were in fact sealed in an envelope and were at my request tendered by the respondent as an exhibit. It is agreed that all these documents were before the Minister at the time of his making the deportation order.

As stated earlier the respondent's objections related to portions of documents. For instance there are certain portions of the original of the submission of 3 June 1981 and of material sent with the letter from The Hon. V.A. Chadwick, M.L.C. which were objected to. These portions have been excised from the exhibits actually tendered to the court. This means of course that there are some parts of the documents before the Minister on 4 June 1981 that are not known to the applicants.

In one sense this created an undesirable situation. One of my reasons for asking that the actual documents be tendered was in case I felt on further consideration that justice could not be done unless they were all available for consideration by the Court. I have considered the documents again since I reserved judgment. I have also taken into account the views of the learned Attorney-General and those put to me on behalf of the Crown and the respondent. I have decided to confirm the view I expressed at the hearing. I do not think that the public interest in the administration of justice in these proceedings outweighs the public interest in maintaining the confidentiality of the documents and parts of documents to whose production objection was taken. Indeed, in my view, justice can be done in this case without the documents being inspected and without their being part of the evidence before me.

Therefore although admitted as an exhibit the documents have not been regarded by me as part of the evidence for determining this matter.

At the hearing I made certain statements about the fact that Counsel for the Crown had not been allowed access to these documents and I have no need to repeat them in my judgment. I would only add that it is important to the administration of justice, particularly in the light of the decisions in Conway v. Rimmer (1968) Appeal Cases 910 and Sankey v. Whitlam (1980) 142 C.L.R. 1 that the Court be assisted by Counsel for the Crown whenever difficult questions of public policy arise in relation to the inspection of public documents. I was assisted of course by the affidavit of the Attorney-General, Senator the Hon. Peter Durack. Q.C. who indicated the grounds upon which inspection should be refused. Although extremely persuasive such an affidavit is not binding on the Court and assistance from Counsel can be of critical importance. The weighing of the two aspects of public interest can be a matter of great difficulty and Counsel can only be of real assistance if aware of the contents of the documents. The powers of the courts in exercising federal jurisdiction to determine what documents shall be available for inspection and admission in evidence before them is, in my opinion, part of the judicial power of the Commonwealth vested in these Courts. It is not open to Parliament to limit this power. It may regulate its exercise provided such regulation does not impair the power It cannot usurp the power. For instance it is not open to Parliament, in my view, to make the inspection and admission of documents before the courts exercising federal jurisdiction dependent solely on the discretion of the Attorney-General. I make this point only to stress the importance to the executive as well as to the parties of giving the Courts as much assistance as is practicable in the resolution of what can often be a very difficult matter.

If for some reason it wishes to deal with the question of production and inspection of documents separately from the Counsel it briefs in a particular case the appropriate course is for the learned Attorney-General or Solicitor-General to appear before the Court to argue the question. Obviously there could be no objection to their having access to what are regarded as sensitive government documents.

Lawful entry in Australia is controlled through an entry permit system. By s.6(1) of the Act an immgrant who enters Australia and is not then the holder of an entry permit which is in force becomes a prohibited immigrant. Until 17 December 1980 the power to grant an entry permit was vested only in an officer, that is, by definition, an officer of the Department of Immigration and Ethnic Affairs, a customs officer or a police officer. From that date by amending Act No. 175 of 1980 power was vested in the Minister to grant to an immigrant an entry permit other than a temporary entry permit. An immigrant includes a person intending to enter or who has entered Australia for a temporary stay only where he would be an immigrant if he intended to enter or did enter Australia for the purpose of staying permanently.

An entry permit is to be in a form approved by the Minister. It may be granted to an immigrant either upon his arrival in Australia or after he has entered Australia. A temporary entry permit is to be expressed to authorise the person to whom it relates to remain in Australia for a specified period only and such a permit may be granted subject to conditions.

Section 7 of the Act provides:-
"7.(1) The Minister may, in his absolute descretion, cancel a temporary entry permit at any time by writing under his hand.

(2) At any time while a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder and, where such a further entry permit is granted while a temporary entry permit is in force, the further entry permit shall come into force only upon the expiration or cancellation of the existing entry permit.

(3) Upon the expiration or calcellation of a temporary entry permit, the person who was the holder of the permit becomes a prohibited immigrant unless a further entry permit applicable to him comes into force upon that expiration or cancellation.

(4) Notwithstanding section ten of this Act, a person who hasbecome a prohibited immigrant by virtue of the last preceding sub-section ceases to be a prohibited immigrant at the expiration of a period of five years from the time at which he became a prohibited immigrant unless, at the expiration of that period, a deportation order in relation to him is in force."

Section 27 of the Act as a result of a 1979 amendment makes it an offence for a person to become a prohibited immigrant upon the expiration of a temporary entry permit that is applicable to him. The penalty is $1,000 or imprisonment for six months. By s.10 a person who has become a prohibited immigrant ceases to be a prohibited immigrant if and when an entry permit or further entry permit is granted to him and not otherwise.

Deportation is provided for in Division 2 of Part II of the Act. Sections 12, 13 and 14 deal with special cases where the Minister is empowered to order deportation of an immigrant at any time where the person is an alien and within five years in other cases. Provisions have been made for review of such decisions by the Administrative Appeals Tribunal.

The Sections of the Act most relevant in this matter are ss. 18 and 20. They provide: -
"18. The Minister may order the deportation of a person who is a prohibited immigrant under any provision of this Act.

20. 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."

The latter section obviously leaves it open to the Minister to revoke the deportation order if he considers the circumstances justify it.

As indicated earlier the Act was amended by Act No. 175 of 1980. Those amendments (inter alia) inserted s.6A which restricts the circumstances in which an entry permit other than a temporary entry permit can now be granted to a person after his or her entry into Australia. Previous to these amendments it was open to an officer to grant an entry permit entitling a person to resident status whenever it was thought appropriate to do so. The special and limited circumstances in which such an entry permit can now be granted are set out in s.6A(1)(a) to (e) (inclusive).

These amendments, however, by virtue of the transitional provisions contained in s.11 of the amending Act, do not apply to or in relation to the grant of an entry permit, not being a temporary entry permit, to an immigrant after the commencement of that section (17 December 1980) if the application for the grant of the permit was made after 19 June 1980 and before 1 January 1981 and the immigrant entered or last entered Australia before 1 January 1980. The application on behalf of Mr. Haj-Ismail was made within the period mentioned and he last entered Australia before 1 January 1980. In fact, according to the evidence, he has not left Australia since 18 November 1972. Notwithstanding the amendments, it is therefore open to an officer to grant him an entry permit entitling him to resident status if in the exercise of his discretion and against the background of policy directions he sees fit to do so.

A full consideration of the Act will show that neither in its present form nor in the form in which it stood prior to 17 December 1980 did it contain special provisions relating to students admitted for private study. In order to cover their stay here the procedure apparently adopted has been to grant a temporary entry permit or a series of temporary entry permits and where it was thought fit attach conditions. In this case, Mr. Haj-Ismail was approved as a private overseas student in Australia on 25 March 1975. At the actual time it was granted he does not appear to have been the holder of a temporary entry permit and therefore was a prohibited immigrant. However, on five occasions thereafter, between 8 July 1975 and 25 August 1980 he was granted temporary entry permits which cover varying periods in length. Together they do not cover the whole period. There were four periods ranging from 15 days (9 August 1977 - 23 August 1977) to 18 months and 24 days (1st February 1979 to 24 August 1980) when in accordance with the Act Mr. Haj-Ismail was a prohibited immigrant rendering him liable to deportation under s.18. However, this does not appear to have caused concern to officers of the department - no doubt because he had been allowed to remain for private overseas study and whilst he was undertaking it they were content that he remain. His status as a private student was confirmed when he was refused the amnesty of 1976.

The precise purpose in staying here was to obtain a Ph.D. degree. As it has turned out he has not yet obtained it. A thesis he has prepared is being considered for a Masters degree at Macquarie University. On obtaining that degree, he hadhopes of continuing his quest for a Ph.D. at some other Australian University. Notwithstanding the period he has taken with his studies, there is no evidence of any attempt by the Minister or the Department to hasten the completion of them. Apart from recent events I think he would have been fully justified in believing that subject to his continuing to satisfy health and character requirements, he would be allowed to stay here in order to complete them. Recent attitudes of the Minister have been based on matters such as those detailed in the Australian Federal Police report of 19 January 1981 set out earlier and not on any view that he has had sufficient time to complete his studies or been dilatory in pursuing them.

The applicants argue that by virtue of the Minister's letter of 20 October 1980 they are entitled to resident status subject to satisfying the conditions as to health and character. To do so they are entitled to an opportunity to be heard. Alternatively they claim they had, by virtue of the letter, a legitimate expectation to resident status and that before it was refused they were entitled to an opportunity to be heard on the matter. In other words they assert that the rules of natural justice apply.

In my opinion neither of these submissions is sound. Under the Act, in the form it is to be read by virtue of the recent transitional provision, the power to grant resident status in response to the applicant's application was vested in an officer under s.6(2) of the Act. In myopinion an officer exercising the power to determine who shall remain permanently in Australia has a very wide discretion unfettered both as to the matters of policy which might guide him in the exercise of it and the procedures to be followed before exercising it. In the ordinary course, I do not think that a person seeking an entry permit either for resident status or for temporary purposes is entitled to be heard before this discretion is exercised against him.

If a person applies for resident status an officer is entitled to refuse it without hearing the applicant and (subject to any question that might arise under the Review Act) refuse to give reasons for doing so. Similar considerations apply in the ordinary course, to a request for a temporary entry permit.

These propositions in my view flow from a consideration of the Act and are fully consistent with its evident object and purpose. They are also consistent with authority.

The applicants however claim that there are special considerations in their case. They contend that they made an application and that, although there was a complete discretion to refuse it, the fact is a decision was made to grant it on certain conditions which they contend they can satisfy. In these circumstances, they argue, they were entitled to be granted entry permits giving them resident status subject to their satisfying the conditions of health and character. Alternatively, they argue, they had a legitimate expectation that they would be granted resident status and that before it was refused they should have been given notice of the reasons why it was being refused and an opportunity to make representations about them.

In my opinion neither the Minister's decision of 18 September 1980, nor his letter of 20 October 1980 conferred on either of the applicants any right to remain here. On neither basis is either of them entitled to claim that the rules of natural justice apply.

As already indicated the officers in my view had an unfettered discretion to determine whether or not the applicants be given resident status. Neither the decision nor the letter in terms constituted a grant of such status. They referred to what would happen if the applicants were able to meet "normal migration health and character requirements". This, in my view, left an officer considering their applications, so far as the ambit of his discretion was concerned, in exactly the same position as if the decision had not been made or the letter had not been written. His discretion to grant or refuse the applications remained completely unfettered. No right to resident status could be conferred until it was actually granted. In any event, the reason for the decision of 26 March 1981 was a failure to meet what were regarded as character requirements so that the condition in the letter was not fulfilled.

The applicants do, however, contend that whether they were granted a right to resident status or not they should have been given an opportunity to make representations.

As I have already indicated, in the ordinary case, the discretion of an officer to grant or refuse resident status is not subject to the observance of rules of natural justice. An officer must, of course, consider the application according to law. If, in dealing with it, he acts on an erroneous view of the law, his decision may be subject to review on that ground. But whether the rules of natural justice apply so as to require him to give an applicant an opportunity to be heard depends on other considerations - particularly the nature of the discretion and the purpose for which it was created. In my view, in the ordinary case, an applicant is neither entitled to an opportunity to present a case before his application is refused or to any reasons for the refusal.

The applicants say, however, that, as a result of the letters, they had a "legitimate expection" of being granted resident status and that, in the circumstances, they should at least have been entitled to an opportunity to make representations before the applications were refused.

There have been a number of recent cases in which it has been suggested, that, where there exists what is termed "a legitimate expectation", the rules of natural justice must be observed (e.g. Schmidt and Anor v. Secretary of State for Home Affairs (1969) 2 Ch 149; Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175; Salemi's Case (No. 2) (supra Stephen J. at pp. 437 et seq); Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487 at pp. 508-9). The matter has been adverted to recently by the Full Court of this Court in Dixon v. The Commonwealth (18 June 1981 - unreported).

The following passage from the judgment of Lord Denning M.R. in Schmidt's Case (supra at pp.170-1) relates the concept of "legitimate expectation" to migration cases in England: -
"The third point is whether there is any ground for saying that the Home Secretary did not observe the precepts of natural justice. Mr. Quintin Hogg submitted that the Minister ought to have given the students a hearing before he refused to extend their stay in this country. I see no basis for this suggestion. I quite agree, of course, that where a public officer has power to deprive a person of his liberty or his property, the general principle is that it is not to be done without his being given an opportunity of being heard and of making representations on his own behalf. But in the case of aliens, it is rather different: for they have no right to be here except by licence of the Crown. And it has been held that the Home Secretary is not bound to hear representations on their behalf, even in the case of a deportation order, though, in practice he usually does so. It was so held in Rex v. Leman Street Police Station Inspector and Secretary of State for Home Affairs, ex parte Venicoff (1920) 3 K.B. 72, which was followed by this court in Soblen's case (1963) 2 Q.B. 243 . . . . . . . . . . . . The speeches in Ridge v. Baldwin (1964) A.C. 40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representation. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation of which it would not be fair to deprive him without hearing what he has to say. Thus in In re H.K. (An Infant) (1967) 2 Q.B. 617 a Commonwealth citizen had a right to be admitted to this country if he was (as he claimed to be) under the age of 16. The immigration officers were not satisfied that he was under 16, and refused him admission. Lord Parker C.J., at p. 630, held that, even if they were acting in an administrative capacity, they were under a duty to act fairly - and that meant that they should give the immigrant an opportunity of satisfying them that he was under 16. By contrast in the later case of Reg. v. Secretary of State for the Home Department, Ex parte Avtar Singh (Divisional Court, July 25, 1967, unreported) a Commonwealth citizen said he wanted to come in so as to marry a girl here. He had no right at all to be admitted. The statute gave the immigration officers a complete discretion to refuse. Lord Parker C.J. held that they were under no duty to tell him why he was refused admission and were not bound to give him an opportunity of making representations. If such be the law for a commonwealth immigrant, it is all the more so for a foreign alien. He has no right to enter this country except by leave: and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right - and, I would add, no legitimate expectation - of being allowed to stay. He can be refused without reasons given and without a hearing. Once his time has expired, he has to go. In point of practice, however, I am glad to say that the Home Secretary does not act arbitrarily. He is always ready to consider any representations that are put before him: as indeed, we are told he is ready to do in these very cases. We know too that Sir Roy Wilson and his colleagues have recommended (in Command Paper 3387) a system of appeals against exclusion of aliens. This may soon become law. But it is not so yet."

It will be seen that his Lordship draws a clear distinction between the case where a person, who has been given leave to stay for a limited period, wishes to stay longer and the case where a permit to stay for a limited period is revoked before the period expires. In the latter, but not former, the person can be said to have "a legitimate expectation" of being allowed to stay longer and therefore to be entitled to an opportunity to make representations before revocation. In other words, even if an official has an otherwise unfettered discretion to revoke a permit before expiry, he must give the person affected an opportunity to make representations before exercising it. The "legitimate expectation" (so called) arises because the person has, on the basis of the existing permit, a right to remain for a defined period notwithstanding the possibility of earlier termination. Where it is about to be revoked a right which he rightly expected he would enjoy is about to be taken away. His legitimate expectation is about to be disappointed. In such cases as a matter of fairness the common law implies a duty to observe the principles of natural justice.

In this case the applicants on receiving the letter of 20 October no doubt felt optimistic that they would be granted resident status. However, it did not amount to a grant and in any event was subject to their meeting normal health and character requirements.

In my view neither the Minister's decision of 18 September nor the letter conveying it gave either of the applicants what, on the basis of decided cases, could be regarded as a legitimate expectation of being granted resident status. The Act, as I have already said, conferred on officers at that time, an unfettered discretion to grant or refuse applications for resident status without hearing an applicant. Nothing in the letter created in favour of the applicants in this case, any entitlement to resident status or any expectation that resident status would, as a certainty be granted. It therefore, in my view, remained open to an officer considering the applications to refuse them without hearing the applicants and without giving them reasons. Nothing they had been given was being taken away.

This view is, in my opinion, consistent with the actual decision of the High Court, albeit by a statutory majority, in Salemi's Case (No. 2)((1977) 137 C.L.R. 396). Clearly their Honours did not regard the circumstances in which Mr Salemi sought the benefit of the amnesty of 1976 as creating any right to the observance of rules of natural justice. Mr Salemi, who was a prohibited immigrant, came forward in answer to the announcement and thereby rendered himself liable to deportation. The amnesty on the face of it promised resident status if he met health and character requirements and the matter was argued before the High Court requirements and the matter was argued before the High Court on the basis that he met those requirements. The facts in that case therefore favoured Mr Salemi more than they favour the applicants in this case, where the meeting of character requirements remains an issue. However, the Court declined to grant relief holding, in accordance with the statutory majority, that the cases based on the concept of "legitimate expectation" did not assist him.

The applicants also attacked the decision of 26 March 1981 refusing resident status on the ground that the Minister and his officers misdirected themselves in law.

In the submission which went to the Minister recommending refusal of the grant of resident status the following paragraphs appear: -
"5. Whatever may have been said in your earlier letter to Dr Edwards, the only way in which he can now be considered legally for change of status is under the 'humanitarian' provisions of the amended Migration Act. It is a matter of judgment whether it is considered there are 'strong compassionate or humanitarian grounds' involved as per Section 6A(1)(e) but I do not see the application falling within this category.

6. We can expect Haj-Ismail to fight the decision and take it to court. However, I believe we have no option but to try if only as a gesture to the community. He will have a hard battle.

7. It is recommended that the grant of resident status be refused and I suggest the family be given four weeks to leave."

This recommendation was approved by the Minister on 26 March 1981. The statement in para. 5 of the submission, it is now agreed, was an erroneous statement of the law. The transitional provisions in s.11 of the amending Act No. 175 of 1980 clearly kept alive in relation to Mr and Mrs Haj-Ismail's applications the provisions which, at the time of their applications, governed the grant of resident status to persons present in Australia. This meant that the power to grant such status was only conferred on officers and that an officer had an unfettered discretion in relation to it. The amending Act, as pointed out earlier, introduced new provisions which gave power to the Minister to grant resident status (s.5(a)) but limited the circumstances in which in future it would be granted to persons present in Australia (s.6A). For practical purposes, it meant that if Mr and Mrs Haj-Ismail's applications were considered under the amending provisions the Minister or an officer would have to be satisfied that there were strong compassionate or humanitarian grounds for the grant of them. This of course could make the applicants' task even more difficult.

Mr Volker, the Deputy Secretary of the Department, gave the following evidence about the erroneous advice given to the Minister. He said: -
" . . . . . As I recollect what occurred, it was believed at the time that this submission was put to the Minister that in fact the only opportunity for someone in this position to be considered for what we call change of status was through section 6A(1) of the Migration Act which came into effect on 14 January 1981. It was later in fact discovered that the amendments to the act in respect to section 11 did not make an exception which it had been understood had been made in respect of students and diplomatic personnel. Consequently, at the time this material was provided to the Minister the statement in paragraph 5 was in fact incorrect. However, that was brought to the Minister's attention orally as soon as it became known, so that he was aware of the situation by the time certainly that the deportation order was signed."

In the light of this evidence I think the only proper inference I can draw is that, when he made his decision approving the departmental recommendation, the Minister erroneously believed that the only power which existed to grant resident status was under s.6A the provision introduced by the amending Act No. 175 of 1980. In so doing the Minister erred in law. This error on the face of it was of great significance because as the minute points out, under that provision, the only way in which the applicants could have been granted resident status (since other grounds in s.6A(1) did not apply) was if there existed strong compassionate or humanitarian grounds for doing so (see s.6A(1)(e)). It would have been very difficult for them to satisfy this test. The recommendation was made on the basis of this erroneous statement of the law and the Minister approved the recommendation.

It follows therefore that in my view the Minister's decision of 26 March 1981, refusing the applicants' applications for resident status involved an error of law within the meaning of s.5(1)(f) of the Review Act and should for this reason be set aside.

Setting aside this decision does not however, end the matter, because, on 4 June 1981, the Minister made deportation orders against the applicants under s.18 of the Act.

If the only relief which the applicants sought was to have the decision on their applications for resident status determined according to law, it would have been sufficient for me to order that the deportation orders be stayed pending the Minister's reconsideration of those applications.

However, counsel for the applicant Mr Haj-Ismail, has submitted that even if he had no right to resident status the Minister was nevertheless bound to give Mr Haj-Ismail an opportunity to make representations before he was refused a further temporary entry permit to continue his studies here or before a deportation order was made against him.

This submission is based on the proposition that in the circumstances Mr Haj-Ismail had a legitimate expectation that he would be allowed to remain here until he completed his studies and that before his stay was terminated he would be given an opportunity to make representations. No such opportunity was given particularly in relation to matters such as those contained in the Australian Federal Police report of 19 January 1981 and therefore the decisions in question were void.

It might be argued that the decision refusing a further temporary entry permit was void because it was part of the decision on 26 March to refuse resident status. This I think is correct. However, the applicant was from 1 March onwards a prohibited immigrant and was liable to deportation under s.18 of the Act. Therefore unless the deportation order itself is void for some proper reason he can properly be deported. The fact that the decision to refuse resident status was void does not provide such a reason. As I have indicated, a stay of the order at this stage would be sufficient to do justice. This is why reliance is again placed on the existence of a legitimate expectation. If the deportation order was set aside, it is argued, Mr Haj-Ismail would then have the opportunity to put submissions before the Minister to convince him that what was said in the police report was without foundation and that he should be granted a further temporary entry permit to complete his studies even if his application for resident status is refused.

I referred earlier to the passage in Lord Denning's judgment in Schmidt's Case (supra) where his Lordship indicated that before a person's entry permit was revoked he would be entitled to make representations.

In de Smith on Judicial Review of Administrative Action (4th Edn. at pp. 223-4) a similar comment is made in relation to non renewal of licences in the following passage: -
"Non renewal of an existing licence is usually a more serious matter than refusal to grant a licence in the first place unless the licensee has already been given to understand when he was granted the licence that renewal is not to be expected. Non renewal may seriously upset his plans, cause him economic loss and perhaps cast a slur on his reputation. It may therefore be right to imply a duty to hear before a decision not to renew when there is a legitimate expectation of renewal, even though no such duty is implied in the making of the original decision to grant or refuse the licence."

(Quoted with approval by Scarman L.J. (as he then was) in R. v. Barnsley M.B.C. ex parte Hook (1976) 3 All E.R. 452 at page 457).

This is not a case where a temporary entry permit is being revoked before it expires. On the other hand it is a case where a further temporary entry permit is not being granted, to pursue his studies or, to put it another way, where his licence to stay here for that purpose is being terminated.

In the ordinary case where a person enters as a visitor for a limited period there can be no question in my view that that person would not be entitled to an opportunity to be heard, before a further permit is refused or, if he becomes a prohibited immigrant, before a deportation order is made. The difficult issue here is whether in the very special circumstances of this case such a right has arisen. In my opinion it has.

I have already set out the circumstances of his stay in Australia since 1972. From 1975 he was allowed to remain as a private overseas student. He has pursued those studies over a long period and has recently submitted a thesis for a masters degree. The effort he has put into his studies may be about to come to fruition. If he is forced to leave it may be lost. Whenever in the past his temporary entry permit expired his status here was regularised seemingly without any difficulty. No suggestion was made to him that if he didn't soon finish he would have to leave. His family joined him here from 1975 and in a sense he and they have settled into the Australian community. Controversy surrounds his remaining here but this is a matter only the Minister and his officers have power to resolve.

Having regard to the circumstances of his stay in Australia he was in my view entitled to assume, first, that he would be allowed to stay here to complete his studies provided he pursued them diligently and continued to meet health and character requirements and, secondly, that appropriate temporary entry permits would be granted to regularise his stay here. In other words he had a legitimate expectation of being able to complete his studies here and he should not be deprived of the capacity to do so without an opportunity to make representations. In a case such as this, which I regard as a special case, where a person has been admitted to our country and allowed to remain here under a series of entry permits to undertake a course of study requiring considerable effort over a long period, I think fairness demands that he have such an opportunity before he is required to abandon the benefit of those years of effort. In substance it is no different to a case where a permit to stay for a period is revoked before expiration or a licence is not renewed where an expectation of renewal might be inferred.

Based on what I have already said, in a case such as this, an officer considering his application for a further temporary entry permit or the Minister considering a deportation order against him would of course have an otherwise unfettered discretion. But before exercising it he would be bound to observe rules of natural justice.

I do not think the decision of the statutory majority of the High Court in Salemi's Case No. 2 (supra) or that Court's decision in Ratu's Case ((1977) 137 C.L.R. 461) require me to hold that, in no circumstances, can the applicant for a temporary entry permit be entitled to a hearing.

Reliance was placed by the majority justices in Salemi's Case on the following passage from the judgment of Lord Upjohn in Durayappah v. Fernando (1967) 2 A.C. 337 at pp. 349-50) concerning the application of principles of natural justice: -
"In their Lordships opinion there are three matters which must always be borne in mind when considering whether the principle should be applied or not. These three matters are: First, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasion is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other. It is only upon a consideration of all these matters that the question of the application of the principle can properly be determined."

In applying these principles to the instant case, I do not think it is sufficient for the purpose to describe Mr Haj-Ismail's status as that of a prohibited immigrant. Nor in applying the second proposition is it sufficient to say that officers are planning to exercise their discretion under the Act in circumstances where the only relevant factor is that the applicant Mr Haj-Ismail is a prohibited immigrant. In respect of both matters the history of his stay here is relevant - not only in order to state the facts fully but also to construe the statute properly. The temporary entry permit system is used and is intended to be used to cover many cases, including students, where persons come to stay in Australia for temporary purposes. If there were special provisions dealing with private overseas students different considerations would obviously apply. However this is not so and the relevant statutory provisions contemplate permits being granted in many circumstances including those of a long term private student such as Mr Haj-Ismail. In construing them, therefore, it is, in my view, necessary to take into account the particular circumstances of their exercise because they are within the contemplation of the statute. So construed I think it is correct to conclude that, in some circumstances, where the otherwise unfettered discretions in ss. 6(2), 7(1) or 18 of the Act are being exercised, rules of natural justice may have to be observed. Such a case may well be where a permit is being revoked under s.7(1) before it expires. Another, in my opinion, can be a case where a person has been allowed to stay for a long term purpose (such as study) under a series of temporary entry permits and consideration is being given to his deportation before the purpose is fulfilled. In such circumstances a benefit is being taken away which he could legitimately have expected to retain. The facts in Salemi's Case and Ratu's Case do not fit either of those special cases nor, in my view, should the High Court be regarded as having decided that in neither could the rules of natural justice apply. In Ratu's Case Mason J. was careful to point out that he was only referring to what he termed "the ordinary case" (see e.g. supra at pp. 478-9). As I have already indicated, in the ordinary case a person would not be entitled to reasons or to an opportunity to make representations. This, however, is not an ordinary case.

It has long been pointed out that in applying the rules of natural justice to a particular case flexibility is necessary. The procedural requirements will not be uniform in every case because the principles have to be adapted to so many different circumstances. They have to adapt to an emergency. They must also encompass circumstances where matters of security are involved and it is appropriate that information which is being used or the sources of it should not be revealed. It really is a matter of determining what is fair in the circumstances of each particular case.

Here the applicants did make representations relating to good character between 26 March and 4 June 1981. Mr Haj-Ismail was not, however, given either the contents or any particulars of the police report of 19 January, the statements in which are obviously very relevant to whether he should be allowed to remain here any longer.

At the hearing of this matter the report was produced without objection to its production on security grounds. Mr Haj-Ismail has, by affidavit in these proceedings, denied the serious allegations made in it. I indicated to Counsel that if I found that the rules of natural justice should be applied to this case I would afford them an opportunity to make submissions about the form of any order. It may be helpful however to point out, at this stage, that my prima facie view is that those rules would be fairly applied in this case if I were to set aside the deportation orders against Mr and Mrs Haj-Ismail and give them an opportunity to make further representations to the Minister about his character including the allegations contained in the police report of 19 January. However, before making any orders, I will, as indicated, hear any further submissions Counsel may wish to make.

Counsel for the applicants also relied on the provisions of s.7(4) of the Act to found an argument that Mr Haj-Ismail was no longer a prohibited immigrant on 4 June last and therefore could not be deported under s.18.

That sub-section provides in effect that where a person becomes a prohibited immigrant on the expiration of a temporary entry permit he ceases to be a prohibited immigrant at the expiration of five years from the time at which he became a prohibited immigrant unless at the expiration of that period a deportation order in relation to that person is in force.

In this case, it is said, a temporary entry permit was granted to Mr Haj-Ismail on 9 January 1973 which expired on 18 March 1973 whereupon he became a prohibited immigrant. Five years expired on 18 March 1978. No deportation order was in force and therefore he is no longer a prohibited immigrant and cannot be deported. It is argued that it does not matter to the application of the section that he was granted further temporary entry permits from 8 July 1975 onwards for broken periods during which he was not a prohibited immigrant. I have decided that this submission should be rejected. Sub-section 7(4), in my opinion, contemplates an unbroken period of five years during the whole of which the person in question is a prohibited immigrant. It assumes that at the end of the period of five years the person is still a prohibited immigrant. Only then can that person "cease to be" a prohibited immigrant. Here Mr Haj-Ismail was a prohibited immigrant on 18 March 1978 when the five year period expired. However, three other entry permits had been granted and expired between 18 March 1973 and that date and in a sense it is only fortuitous that he was not then the holder of one. The sub-section was designed to terminate the prohibited immigrant status of a person who has been allowed by the authorities to remain a member of the Australian community for that period with that status but has taken no steps to deport him. It was not designed to give a person a chance benefit when that person's stay here has in substance been controlled through temporary entry permits. Mr Haj-Ismail has not been here for a continuous period of five years during the whole of which he was a prohibited immigrant and therefore he is not entitled to the benefit of s.7(4). Nor is Mrs Haj-Ismail.