Ho v Minister of State for Immigration and Ethnic Affairs
[1988] FCA 404
•4 Aug 1988
.I
CATCHWORDS
ADMINISTRATIVE LAW - inmigration - ]udiclal review - appellants entered Australia without entry permlts -
deportatlon orders - detention at vlllawood Detentlon Centre - whether deportatlon orders valid - whether damages available in proceedlngs for Judlcial review -
whether detention pursuant to deportation orders authorized - natural lustice - whether denled
Admlnlstratlve Declsions (Judicial Revlew) Act 1977,
s s . 5, 16 Migratlon Act 1958, s s . 20, 21A, 30, 39
Federal Court of Australia - - Act 1976, s s . 2 2 , 23
PARK OH HO; KO JUNG WOONG; LEE JUNG IN; CAUNG BONG
- YOL; SONG BANG JIN, LEE JAE EUN, HAM BUM HOON v . THE MINISTER OF STATE FOR IMMIGRATION AND ETENIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Nos. G562 of 1986
G293 of 1987
G294 of 1987
G295 of 1987
.
G296 of 1987 G297 of 1987 G298 of 1987
Sydney CORAM: Sweeney, Morling and Foster, JJ. 4 August 1988
IN THE FEDERAL COURT OF AUSTRALIA ) -
)
NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION )
BETWEEN: PARK OH H0 Appellant
NO. G 562 Of 1986
AND : TIIE MINISTER OF STATE FOR
iMMIGRATiON AND ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
BETWEEN: KO JUNG WOONG Appellant
NO. G 293 Of 1987
AND : THE NINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS OF - THE COMMONWEALTH OF AUSTRALIA
Respondent
BETWEEN: LEE JUNG IN
NO. G 294 Of 1987 _ _
AND : THE NINISTER OF STATE FOR
IMMIGRATION AND ETHIiIC AFFAIRS OF
T H E COMMONWEAT2TH OF AUSTRALIA
Respondent
BETWEEN: CHUNG BONG YOL Appellant
NO. G 295 of 1987
AND : THE KiLISTER OF STATE FOR
THE COMMONWEAr,TH OF AUSTRALIA .. - lIIKIGRATION AND ETHNIC AFFAIRS OF
Respondent
BETWEEN: SONG BANG JIN Appellant
No. G 296 of 1987
AND : THE MINISTER OF STATE FOR IrlMIGRATION AND ETHNIC AFFAIRS OF
THE COMMONWEALTH OF AUSTRALIA - Respondent
BETWEEN: LEE JAE EUN Appellant
NO. G 297 Of 1987
AND : THE MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS OF
TAE COMMONWEALTH OF AUSTRALIA
Respondent
BETWEEN: HAN BUM HOON -
Appellant
No. G 298 of 1987
AND : THE MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS OF - THE COMMONWEALTH OF AUSTRALIA
- __ Respondent
MINUTE OF ORDER
JUDGES MAKING ORDER : Sweeney, Plorllng and Foster JJ. DATE OF ORDER : 4 August 1988 WHERE MADE : Sydney
THE COURT ORDERS AS FOLLOWS: .-
l. Appeal dlsmlssed. 2. Cross-appeal dlsmlssed.
3 . No order a s to costs. - NOTE: Settlement and entry of orders 1 s dealt wlth In
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA 1
NEW SOUTH WALES DISTRICT REGISTRY
)
DIVISION GENERAL ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
OH PARK BETWEEN: H0 Appellant No. G 562 of 1986
AND : THE MINISTER OF STATE FOR IMMIGRATION AND
ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
Appellant BETWEEN: KO JUNG WOONG No. G 293 of 1987
AND : THE MINISTER OF STATE FOR IMMIGRATION AND
ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
BETWEEN; LEE JUNG IN Appellant
No. G 294 of 1987
AND : THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
. .. - 2 3 . 1
Appellant YOL BONG CHUNG BETWEEN: NO. G 295 Of 1987
AND : THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
Appellant JIN BANG SONG BETWEEN: No. G 296 of 1987
AND : THE MINISTER OF STATE FOR IMMIGRATION AND
ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
BETWEEN: LEE JAE EUN Appellant No. G 296 of 1987
AND : THE MINISTER OF STATE FOR IMMIGR .ATION AND
ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
| Appellant | HOON | BUM | HAM | BETWEEN: |
NO. G 298 Of 1987
AND THE MINISTER OF STATE FOR IMMIGRATION AND
ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA Respondent
. \ 3 - THE COURT: Sweeney, Morling and Foster JJ.
PLACE : Sydney - DATE : 4 August 1988 REASONS FOR JUDGMENT
Sweeney J.
On 29 March 1988 Davles J. declared that the maintenance
charges demanded by the Department of Immigration and Ethnlc Affairs ("the Department") In respect of the period during which each of the appellants had been detained at Villawood Detention
Centre ("Villawood") were not payable and ordered that the
deportation orders which had been made against each of the appellants on 20 August 1986 be set aside ab initio and that he
applications made to the Court by each of them be otherwlse dismissed. Each appellant has glven notice of appeal against this
dismissal and the respondent Minister has given notlce of
cross-appeal against the declarations and the orders setting aslde the deportatlon orders. During the course of argument on appeal we were told that the respondent no longer Intended to press for payment of the maintenance charges.
His Honour had before him appllcatlons under 5 . 5 of the
Administrative Decisions (Judicial Review) Act 1977 (Cth)("the
ADJR Act") for orders of review with respect to decisions of
delegates of the respondent Minister taken under the Mlgratlon Act 1958 (Cth), ("the Migration Act") claiming, amongst other thlngs,
General and Speciflc damages pursuant to S.22 and S.23 of the Federal Court of Australia
Act, 1976 for the Respondent's unlawful m e n t i o n of the Applicant during the period
of the 20th August, 1986 to the 2nd December, (vi) Exemplary Damages for the perlod of unlawful
detention from 26th November, 1986 to the 2nd December, 1986 durlng whlch the Respondent continued to detaln the Appllcant although
upon notice of his unlawful detention and liablllty for exemplary damages.".
There were seven appllcants. Llke decislons were made with
respect to each. One of the appellants Lee Jae Eun, had left Australia but the other six have remained in this country.
"In each case", his Honour said, "there was, on 20 August
1986, a declsion by Mr J.R. Tushan, Acting DlKeCtOr for New South
Wales of the Department that the appellant be refused the concesslon of supervised voluntary departure and that he be deported. Subsequently, each appellant remalned in custody from
20 August 1986 to 2 December 1986 at Vlllawood. In each application for review before his Honour that detention was glven
the description of a decislon, the date of which was stated to be "20 August 1986 to 2 December 1986". Another alleged declsion was
that the deportation order slgned on 20 August 1986 be suspended
OK not be executed. The particulars given of that decision were
" 2 0 August 1986 to approx 2 4 November 1986". Another declsion was
that each appellant was requested to pay, as a deportee in custody, maintenance costs pursuant to s.21A(7) of the Nigratlon
- Act from 20 August 1986 to 2 December 1986".
Finally, in each case decislons were taken by Mr W.A.
McKinnon, Secretary of the Department, that:
(a) the deportation order made on 20 August 1986 be revoked; (b) there be no grant of a further temporary entry permlt;
. .
\
b
(c) permanent resident status be refused;
(d) the option of a voluntary departure be refused; and (e) a fresh deportatlon order be signed.
At the hearing before his Honour, Mr B.J. Camilleri of
counsel first appeared for the appllcants. On hls retirlng because of indispositlon, the appllcants were represented bythelr
solicitor, Mr N.L.A. Barlow. Mr P. Roberts of counsel appeared for the respondent.
It will be convenlent to deal first with the respondent's
cross-appeal because it relates to the first order of deportation made agalnst each appellant and the hlstory of the case will emerge in chronological order.
His Honour's findlngs as to the evidence before the
departmental officers of the clrcumstances In which the appellants entered Australia were as follows:
"The statements made by each of the seven appellants to the pollce officers varled a little
in detail, but each was conslstent in the general structure and details. Having read the materlal which was, at various times, before the offlcers
who handled thls matter In the Department, I am satisfied that it was open to the officers of the Department to decide, if they saw fit to do s o , that each of the appellants entered Australla
illegally, that each was aware that he was entering
the country merely for short term buslness or tourist reasons.".
His Honour then described the course of events which
followed:
"The appellants were each arrested on 26 July 1986. Each was intervlewed by an immigration officer, the
interview being limited to placlng a number of set questlons to the appllcant and recording short
answers thereto. On 3 1 July 1986, an offlcer of
the Investigatlons Branch of the Department, Mr
P.D. Scott, lnterviewed the appellants at
Villawood, Mr Scott obviously had in mind that e appellants might assist In the prosecutlon of Mr
Chang and of the Customs offlcers who had been
involved in their Illegal entry and who had been arrested and also of Mr Choi, who was overseas. The precise detalls of the conversatlon were not important and, in any event, as it occurred through
an interpreter at the Vlllawood Detention Centre,
there could well have been some misunderstanding on both sides. Mr Scott stated in the course of that interview that the appellants had the alternatlve
of returnlng or belng returned immedlately to Korea
or, if they wished, of assisting the Police I n the prosecutions, in which case consideration would be given to their release from Villawood and to the
issue of work permits. Each of the appellants
appeared to his Honour to have galned the
impression at that early date, 31 July 1986, that, If he cooperated with the Police, his release from
Villawood and the issue of a work permlt would be favourably considered. The issue which Mr Scott raised so promptly was, nevertheless, not resolved until November 1986, and
then not favourably to the appellants. In the meantlme, the appellants were kept in custody at
Villawood.
In early August 1986, each of the appellants was
interviewed by a police officer and each gave a
long statement to hlm. ... . On or about 8 August 1986, each appellant was given a letter, in Engllsh, whlch read:-
‘It has been establlshed that you are a prohibited non-cltizen wlthin the meanlng of
the Migratlon Act, 1958. The question of your deportation will be put
before delegate a of the Mlnlster for Immigration and Ethnic Affairs. If you wish
to put any materlal before the delegate apartfrom the information you have provlded at
interview you should put that materlal in writlng and provide It by close of business on 11 August 1986. If you choose to make a formal applicatlon for grant of resident status your appllcation will
be assessed by an officer of the Residence Section and that assessment will be put before
the delegate of the Mlnister who wlll determlne your application and consider the
question of your Deportation or further stay
in Australla.'".
The appellants made no response to that letter, either, his Honour said, because they
had nothing to add or because they
expected to be released from Villawood and to stay In Australia If they co-operated with the pollce, whlch they were dolng.
After their arrest on 26 July the appellants were detalned in
Villawood under 5.38 of the Migration Act and pursuant to
authorization orders made from time to tlme by the Local Court at Fairfleld.
On 19 August 1986, Mr R. Wilson, Acting Assistant Director,
Enforcement, forwarded to Mr J.R. Tushan statements setting out
the position wlth respect to each appellant. Mr Wllson
recommended in each case that no resident entry permit be g anted, that the appellant not be glven the concesslon of voluntary departure and that he be deported. On 20 August 1986, Mr Tushan adopted those recommendations and, on that day, he ordered that each applicaflt be deported from Australia.
His Honour then referred to the provlsion In s.20(1) of the
Migration Act that, "where the minister has made an order f o r the deportatlon of a person, that person shall, unless the Minister revokes the order, be deported accordlngly. ' I , and said that, notwithstanding that provislon, none of the appellants was In fact
deported pursuant to mr tushan's order. Each of them was kept in custody at villawood under s.39 of the Migration Act, which provides inter alia:
"39.(1) where an order for the deportation of a
person is in force, an officer may, wlthout
warrant, arrest a person whom he reasonably supposes to be that person, and a person so arrested may, subject to this section, be kept in
custody as aeportee In accordance wlth sub-section (6).
...
(6) a deportee may be kept In such custody as the
minister or an officer dlrects - (a) pending deportation, until he is placed on board a vessel for deportation; ... .
His Honour sald that the reason for the delay in the
deportations was that the Director of Public Prosecutions desired
that the applicants remain in Australia to help wlth the
prosecution of Mr Chang and of the Customs Officers. On 29 August 1986, a letter from the Dlrector of Public Prosecutions to the Regional Director of the Department in New South Wales, stated,
lnter alia, that all of the appellants were essential to the prosecution and that it would be unlikely that the prosecution
would be finalised in less than 18 months. For some months
thereafter there was no resolution of the appellants' posltlon
despite many attempts by them to obtain a final decision.
Ultimately, a letter was written on their behalf to the Prime Minlster and they threatened to go on a hunger strike unless a decision were made.
On 18 November 1986, an officer of the Director of Public
Prosecutions informed an officer of the Department that the
Department was "no longer obligated" to hold up the deportations. Arrangements for the appellants' deportatlon were set on foot.
Those arrangements were stayed after appllcation was made in this Court for orders of revlew wlth respect o Mr Tushan's decisions.
His Honour then turned to consider the declslons of 2 0 August
1986. There was not before him any statement from Mr Tushan of his reasons for declsion but his Honour regarded
the submission
put to Mr Tushan by Mr Wilson as some evidence of the factors which he took into account. However, hls Honour said, each of the appellants received the letter dated 8 August 1986 whlch stated
that the question of deportation was belng considered and which
asked the appellant to put forward any material he wished to be
taken into conslderation. It was true that he letter was in theEnglish language, not Korean, but the appellants were in custody
at Villawood where, his Honour interpretation could have been obtained
assumed,
assistance
in
lf it had been requlred.
The appellants had by this tlme been interviewed by an officer of the Department and by an officer of the Australian Federal Pollce.
Their statements were full and escribed their personal
circumstances and the circumstances in which they came to
Australia. 'In his Honour's oplnlon, each of the appellants was
given a fair opportunlty to put forward the matters that he wlshed to have taken into account.
Another ground of contention was that Mr Wilson failed to disclose to Mr Tushan that Mr Scott "had made arrangements with
the appellants concernlng thelr remaining In Australia as Commonwealth prosecution wltnesses and that their arrangements
were awaiting ministerial confirmation". His Honour did not l
uphold the ground in these terms, observlng that M r Scott's only arrangement with the appellants was that, lf they co-operated with the police, their stay in Australia would be considered by senlor officers of the Department of Immigratlon and Ethnic Affairs.
His Honour said that, if Mr Tushan did not turn his attention
to the issue whether each appellant should be deported pendlng the
conclusion of the prosecution proceedlngs, then he did not turn
his attention to a matter which was material not only to the
appellants but also to the Australlan community. The materiality of the issue is shown by the fact that, once the Dlrector of
public Prosecutions had written on 29 August 1986 to say that the
appellants were essential witnesses for the prosecutlon, the appellants were thereafter held in custody at Villawood until
advice from the Director of Public Prosecutions consentlng to
their deportation was recelved. If Mr Tushan was not in fact aware of the discusslons his officers were having with the Office
of the Director of Public Prosecutions and therefore failed to give this matter his attention, then, hls Honour said, he failed
to take into account a material consideratlon that was not but ought to hav'e been brought to his notice, for it was a materlal
consideration known by officers of hls department. His Honour said:
" Having regard to Mr Tushan's position In the
Department, however, I think it probable that he was in fact aware that officers of hls Department
were discussiing this aspect of the matter wlth officers of the Director of Public Prosecutions.
I therefore draw the conclusion that Mr Tushan made the deportation orders under an error of law. when
s.18 authorises the Minister or his delegate to
order that a person be deported from Australia, it does not authorise the Minlster or his delegate to sign a deportation order unless the declslon-maker has determined that the prohibited non-citizen
shall be deported as soon aspproprlate
arrangements for hls deportation can be made. A
deportation order may not be made as a mere
indication of a possible or likely future course of made. the deoortation order mav not Immigration and Ethnic Affairs (1985) 61 ~~~ ~ ~
action. Once
be suspended. See ~ Dallckavak v. Ministe; f o r A.L.R. 471
and M a h p l o n (1987) 71 A.L.R. 395. Section 20 imposes the statutorv dutv that a
deportation order -be lmplemented ‘accor~lngly’,
that is to say according to its terms. Section 39
authorises the arrest and etention of the prohibited non-citizen pending deportation, but
that is to say only for the purposes of deportation and during the period it may take to arrange
deportation by means which are appropriate having
regard to the terms of the order and the circumstances of the case.
Having regard to the discussions which were on foot
wlth the office of the Director of Public
Prosecutions and to the unresolved issues as to he
use to be made of the appellants in the
prosecution, it appears to me that Mr Tushan must have had in mind that the deportation orders would
serve to authorize the detention of the appellants
and that the implementation of the orders could besuspended pending resolution of the issues.
The deportation orders were made at a tlme when It was not correct to make them, for the part whlch
the appellants were to play in the prosecutions was under consideration and had not been determined. Whatever was Mr Tushan’s actual reasoning, his decisions for the deportation of the applicants were flawed by error. Mr Roberts submitted that, nevertheless, the Court
shduld not make an order with respect to the
deportation orders as the deportation orders were
subsequently revoked on 8 February 1987. He submitted that, while the orders were on foot,
officers of the Department had acted upon their authority and had kept the appellants in custody.
He submitted it would be unfair to those officers
to set aside ab Initio the deportation orders whlchprovided the legal authority for their actions.
As the deportation orders had effect from 2 0 August
1986 until revoked on 8 February 1987, there exists, a matter with respect to which an order of the Court may take effect. In deciding whether to
make an order setting aslde the deportation orders ab initio, I have regard to the nature and effect
of the error in the decisions. In my oplnion, the
defect affecting the deportation orders was of such slgniflcance that the deportation orders should be treated as a nullity. Either M r Tushan had a misapprehension as to the nature of the decisions
which he had to make or he failed to turn his attention to an issue the resolutlon of whlch was crucial to the question whether the appellants should or should not be deported from Australia. As is shown by the ludgment of Lord Pearce in
Anisminic v. Foseign Compensation Commission 119691
2 AC 147 at p.195, a decision is a nullity, ' l . . . if
the Tribunal asks itself the wrong questions (that is, questions other than those which Parliament
directed it to ask itself) . . . ' l . The present isnot a case in which the decision-maker genuinely
dealt with the substance of the matter that called
for consideration. A declson to deport the applicants could not sensibly have been taken until
such time as the part which the applicants were to play in the prosecution had been resolved. Either
Mr Tushan misunderstood the decision which he had
to make or he failed to turn his attention to a matter of fundamental importance to that decision.
In these circumstances, I am of the view that thedeportation orders should be set aside ab initio.".
Five of the appellants entered Australia on 26 July 1986, and two of them had previously arrived.
All appellants were arrested on 26 July 1986, pursuant to
s.38 of the Migration Act, which reads as follows:
"38(1) An officer may, without warrant, arrest a prohibited non-citizen, and a person
person whom he reasonably supposes to be a
so arrested
maf, subject to this section, be kept in the
custody of any officer or in such other custody as the Minister or an authorized officer directs.
( 2 ) where an officer arrests a person in pursuance
of this section, the officer shall forthwith inform the person arrested of the reason for the arrest,
and that officer or another officer having the
custody of that person shall take him before a prescribed authority within 48 hours after the arrest or, if it is not practicable to bring hlm
before a prescribed authority within that perlod,
as soon as practicable after that period, and, if
the arrested person is not so brought before a prescribed authorlty, he shall be released.
( 3 ) Where a person is brought before a prescrlbed
authority under this ection, the prescribed authority shall inqulre into the question whether
there are reasonable grounds for supposing that
that person is a prohibited non-cltlzen and, if the prescribed authority is satlsfied that there are
such reasonable grounds, he may, by wrlting under
his hand, authorize the detention of that person in custody for such period a s the prescrlbed authorlty is satisfied is reasonably required in order to enable the Minister to consider whether that person
1 s prohibited a non-citizen and whether a deportation order should be made in respect of hlm, but otherwise the prescrlbed authority shall order that person to be released.
(3A) The perlod for which the detentlon in custody
of a person brought before a prescribed authority
may be authorized under sub-sectlon ( 3 ) by thatprescribed authority shall not exceed 7 days from
the date of the authorization or such longer period from the date of the authorization as the person consents to. ( 4 ) A prescribed authorlty may, from time to tlme,
extend the period of detention referred to in
sub-section ( 3 ) .
( 5 ) Subject to sub-section (6), at the expiration of the period of detentlon of a person under thls
section, that person shall be released.
( 6 ) If, whlle a person is In custody under thls section, an offlcer informs that person (whether
before or after he has been brought before a prescrlbed authority) that a deportatlon order is
in force in relatlon to him, the preceding
provisions of this sectlon cease to apply in relation to that person and he shall be deemed to have been thereupon arrested under section 39 by the officer having his custody or, if he 1 s not in
the custody of an offlcer, by the officer who so informs him.
( 7 ) Notwithstanding anything contalned In thls section, an authorized officer may at any tlme
order the release of a person who 1 s in custody under thls section.
( 8 ) Nothing contained in, or done under, thls
sectlon prevents the Supreme Court of a State or Territory or the Hlgh Court from ordering the release from custody of a person held in custody
under this sectlon where the court finds that he 1 s not a prohibited non-cltizen.".
They remalned in custody pursuant to that section until the deportation orders were made against them on 20 August 1986 and thereafter pursuant to the operatlon of the section by vlrtue of
the making of the deportation orders and the effect of sub-sectlon (6).
Between 26 July and 20 August 1986, discusslons took place between Mr Scott, representing the Minlster, and the appellants
on
the question of their remaining in Australia for the purpose of
appearing as prosecution witnesses in crlmlnal proceedings against
officers of the Australian Customs Service and Mr Kang.
Section 36A of the Migratlon Act deals wlth the case of
persons who arrive at an Australlan alrport in circumstances such
as those in which five of the appellants arrived, and provldesthat they may be taken into custody pending their swlft removal
from Australia "at no charge to the Commonwealth" (sub-sec.(4)).
Had it not been for the deslre of the Director of Publlc
Prosecutions to have them remaln In Australia one would not have been surprised to find s.36A invoked In respect of them. His Honour's findings in respect of these deportatlon orders
were in my opinion amply ~ustified by the evldence before him. I
respectfully agree with his decision to set them aside ab Initio and with his reasons. I would dismiss the cross-appeal. I turn now to consider the appeal. The flrst challenge made
on behalf of the appellants by their counsel, M r Spigelman Q.C.
and DK G.A. Flick, was that "the learned trial ~ u d g e erred in law
in finding that he had no power to award damages".
I
At several stages prior to and during the hearing, amendments
to the grounds of the application were sought and allowed.
There was tendered in evidence on behalf of each appellant,
other than Lee Jae Eun, an affidavit, he intent of which appeared
to his Honour to be to contradict some of the material which was before the decision-makers when the relevant decisions were made
and to put forward a view that, as a matter of fact, each of the appellants was, to use Mr Barlow's expression, "an innocent victim of a migration racket". Thus, affidavits In support of the applications contained a paragraph to the following effect:-
"I never had the intention (nor did I ever state to
my interpreter) that It was my Intention to
overstay my vlsa which I believed was belng
obtained for me . . .".
Each appellant was cross-examined upon his affidavlt, apparently
with a view to showing that he should not be believed as to the facts to which he deposed.
His Honour was of opinion that:
"However, in proceedings by way of judiclal revlew,
it is not for this Court to come to its own view on matters of fact such as that. The Court is not he primary declslon-maker and the decision-making
power has not been conferred upon it. The declsion-maklng powers conferred by the Migration
Act are conferred upon the Minister, hls delegates
and officers of his department. A decision may be set aside by the Court under the ADJR Act only If it is shown that the declsion was affected by an
error of law, that is to say, some procedural defect such as a breach of the principles of
natural justice, some misapprehension of the law, a
failure to deal properly with the issues by reason of a failure to take into account a material
consideratlon or the giving of weight to an immaterial conslderatlon, some improper motive or abuse of power on the part of the decision-maker or
the reaching of a decision so perverse that no reasonable decision-maker could have arrived at it. In considering most of these issues, the amblt of
the Court's consideratlon is lirnlted to the material that was before the decision-maker and any
other material that was to have been before the decision-maker because It was relevant and was
elther known to or ought to have been in the hands of officers of his department. I deal with these matters more fully in Ruan ron v. Mlnlster for Immigratlon and Ethnic A w e l l v e r e d this day)
and I need not repeat what is there sald. In the result, I have had to put out of my mind as being irrelevant to the issues before the Court
much of what was deposed to in the affidavits and much of what emerged durlng the cross-examination
of the deponents.".
His Honour then said:
"A more important misunderstandlng of the
principles of applicants' claim for damages wlth respect to the
~udiclal review
lay
behind
the
decisions under eview and actions taken in
consequence thereof. In brlef, the case was put on
behalf of the appllcants that the deportation order
made on 20 August 1986 should be set aside ab
initio wlth the result hat he subsequent
detention of the applicants from 20 August to 2 December 1986 was unlawful. Alternatively, it was
put that, if the deportatlon order of 20 August
1986 was valid, then it ought to have been carried out forthwith and, as it was not, the applicants
were detained until 2 December 1986 agalnst theirwishes and for an improper purpose. Arislng out of
these allegations damages were sought for unlawful detention. Mr Barlow submitted that the appllcants
had been arbitrarily detained for an unlawful
purpose, that the Department's actions were
calculated to injure the applicants and that there
were elements Including exemplary damages and submitted that
of
deception.
He
sought
damages
there should be a further hearing to determine the quantum thereof.
However, damages are not a remedy of ludicialreview and s.16 of the ADJR Act, which specifies
the
respect of a decision, does not include an award of
damages. Until the passing of legislation such asCourt may make In its
the orders which
discretion when making an order of review in
is contained in s.64 of the Judiciary Act 1903 (Cth), it was not possible to obtain any award of damages against the Crown, for neither an actlon nor a Petition of Right could be brought agalnst the Crown for a wrong committed by its officers.
See Dicey's Law of the Constitution 8th Ed. p.556. Even now, a clalm for damages from the Commonwealth must be based upon a clvll wrong or a breach of contract. An applicant who merely establishes a
ground of review under 5 . 5 of the ADJR Act 1 s not
thereby entltled to an award of damages. The
remedies of judicial review are those in the nature of certiorari, prohlbltlon, mandamus, ~ n ~ u n c t i o n and declaration, as s.16 of the ADJR Act makes plain. Mr Barlow referred to s.22 of the Federal Court of
Australia Act 1976 which authorlses the Court to give 'all remedies to which any of the parties
appears to be entitled in respect of a legal or
equitable claim properly brough forward by him in the matter . . . I . Damages are not such a remedy in respect of proceedings brought by way of judicial revlew. Section 22 does not enlarge the provisions
of substantive law so as to authorise the award of
damaaes in circumstances for which the law does not
~~ ~~~
> - - ~~ ~
provide: Thomson Australian Holdings pty Ltd v. Trade Practices Commission E, Ors (1981) 37 A.L.R. 66 at p.73. Mr Barlow referred to the further words in s.22 of the Federal Court of Australia Act that ' . . . so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of
proceedings concerning any of those matters
avoided.' But those words do not entitle the Court in proceedings under the ADJR Act to make an order by way of damages when
there 1 s not before the Court any cause in respect of which damages may be awarded. Even if, arising out of the facts that
have occurred, the applicants were entitled to
bring proceedings against the Commonwealth or an
officer of the Commonwealth for damages for false
imprisonment, as to which I say nothing, and if,
when brought, the Court had jurisdiction In respect
thGreof, by reason of s.32 of the Federal Court ofAustralia Act or otherwise, such proceedings have
not been brought. Indeed, the Commonwealth 1 s not a party to these proceedings.
The present proceedings are proceedings solely
under the ADJR Act for orders of review with
respect to decisions taken by delegates of the
respondent Mlnister. They are not proceedings against the Commonwealth or an offlcer of the Commonwealth for false imprisonment and make no claim for damages for a clvil wrong. No amendment
to the proceedings to raise such a claim was sought. It follow that the principal rellef claim
in respect of the 1986 decisions was misconcelved.
See, eg. Pearce and Another v. Button and Others (1986) 6 5 A.L.R. 83.".
It is true that the evidence in support of the application for review included evidence going
to show that the detention of
the appellants was wrongful and the application Itself contained allegations that they suffered loss and damage as a result of it. The learned trial judge ordered that he deportatlon order of 20 August 1986 be set aside ab initio, but he characterised the relevant application which came before him in the same way as it was described in its full title, namely an "Amended Appllcatlon for an Order of Review ( 2 0 August 1986 Decisions)".
As counsel for the respondent, Mr C. Stevens and M r R. Greig
submitted, reference to the application itself and the course ofproceedings before his Honour justify that characterlsation and
the conclusion that his Honour was not required to ad~udicate upon some additional claim based upon misfeasance in a public offlce,
false imprisonment, damages for breach of a statutory duty, or any other cause of action. The appellants did not seek leave to amend
their applications to add any such claim.
The appellants further submitted on appeal that his Honour
should have struck down each of the decisions of 8 February 1987 "for breach of the bias rule". It had been submitted to his Honour that there was blas on
solicitors had indicated that they proposed to sue the Minister
for Immigration and Ethnic Affairs in the Supreme Court of New
the part of departmental offlcers because the applicants'
South Wales for damages for unlawful imprisonment and had forwarded to the Department a copy of the proposed Statement of
Clalm.
His Honour held that no element of bias arose. The
appellants were, he said, seeking reconsideration of the
deportation orders and other decisions made on 2 0 August 1986 and that reconsideration could be undertaken only by officers of the Department of Immigration and Ethnic Affairs who were delegates of
the Minister. There was no bias special to Mr McKinnon and,indeed, his Honour said, the evidence did not disclose that he
played any part in the earlier events. The alleged unlawful
detention was one of the matters that the applicants sought to have taken into account as a relevant factor. His Honour held
that no bias appeared from the fact that Mr McKinnon undertook the reconsideration which the appellants sought and took into account
factors raised for consideration by them.
Counsel for the appellants submltted that no offlcer of the
Department, even one appointed to it after the making of the decisions under review, could be said to be safe against an allegation or bias. It is a normal incident of the performance by
departmental officers of their duties to be called upon to review or reconsider declsions in circumstances where the result of that
review or reconsideration may furnish to an applicant materlal
which he may use agalnst an officer, a Minlster or the
Commonwealth in the prosecution of some action against one or other of them, or in furtherance of some campalgn agalnst, or
criticism of, any of them. There is, In my opinion, nothing in the present case to lead one to differ from the opinion which his
On appeal counsel submitted that the appellants were denied
natural justice in respect of what were described as the decislons of 8 February 1987 to sign a fresh deportation order and to deny each appellant the voluntary departure option, made by Mr W.A.
McKinnon, who also decided that the deportation orders of 2 0 August 1986 be revoked.
At first instance, it was submitted that the applicants had
not been notified that the maklng of new deportation orders was
being considered. However, his Honour pointed out that by letter dated 2 December 1986 their solicitors had been advised that the
decisions of 20 August 1986 were being reconsidered and that,
amongst o her things, ubmlsslons relation in to he
reconsideration of the Department's decision to deport the appellants should be lodged with the Department.
Subsequently, formal applications for resident status were lodged by e'ach of
them
and
their
solicitors
wrote
to
the
Department of Immigration and Ethnic Affairs. In his Honour's oplnlon, an adequate opportunity was given to the appellants to put all that they wished to put with respect o the question of their deportation, and indeed also with respect to the other
matters which were considered on 8 February 1987.
In my opinion, the receipt of this letter by the appellants'
solicitor and his reply to it fully justified his Honour's
conclusion that there was no denial of natural lustice. The next ground relled upon In support of the appeal was that
"with respect to the decislon not to permlt voluntary departure no
real consideration was given to this optlon: In partlcular the implications of the decision for the conduct of the case agalnst the Minister".
At first instance, orders were sought in respect of the
refusal by Mr McKlnnon on 8 February 1987 to allow each appellant
to make a voluntary departure. These refusals, hls Honour thought, were not separate decisions but simply an alternative
which was properly considered with other matters when
consideration was given to the deportation of the applicants. MC BarIOW had contended that the appllcants were not glven an
opportunity to put submissions with respect to this Issue.
However, hls Honour sald, they were given adequate notlce that the issue of deportation would be reconsidered and they were given an opportunity to put forward any submissions that they wished and in
the circumstances, he concluded that there was no breach of the
rules of natu'ral justice. H ~ s Honour sald that the comments whlch
he made with respect to the like decisions on 20 August 1986 applied equally to the February declsions. HIS Honour had earlier
referred to the attack made on the August refusals of that option, saying that the substance of the matters bearlng upon it was
before the decision maker and considered by hlm. Each appellant, if deported, could apply for dlspensatlon
from the usual embargo that a deportee should not be allowed back !
into Australla withln 5 years, so as to enable him to partlcipate In the conduct of the actlon against he Mlnister In the Supreme
Court. If an appellant had been granted the opportunity of
voluntary departure, he would still have had to seek approval to
return to thls country for purposes associated wlth the
prosecution of the case. In my opinion, the appellants have
failed to show any reason why the Court should, on appeal, differ from the opinion of the learned trial judge.
The next submission on appeal was that "with respect to each
of the decisions of 8 February 1987 concerning deportatlon, entry
and work permits and the option of voluntary departure, the
decision maker failed to take into account relevant consideratlons, namely, the availabllity of the appellants as
witnesses in criminal proceedings and, secondly, the unlawfulnessof the detention".
His Honour referred to the submission made to hlm that no
consideration was given to the compassionate and humanitarian
aspects of the appellants circumstances including the physical,
mental, emot-ional and financial effects of the long perlod of
their detentlon for non-migratlon purposes and thelr valuable contribution to the law enforcement interests of the C mmonwealth. However, his Honour sald, the circumstances surrounding thelr
detentlon were before Mr McKlnnon. They were referred to In many places in Mr Faubel's submissions. Mr McKinnon had before him the
Statement of Claim In the Supreme Court proceedings and copies of letters written by Mr Barlow to the Department and to the Prlme Minister. These matters were specifically mentloned by Mr Faubel
as circumstances that the appellants wlshed to be taken lnto account in their favour. In rejecting the grant of resldent
status, Mr McKinnon took into account, hls Honour said, as he was
bound to do, that s.6A of the Migration Act requires of an
applicant for a grant not only that there b strong compassionate or humanitarian grounds but also that the appllcant be the holder of a temporary entry permit. None of the appellants held such a permit.
His Honour was not satisfied that there was any failure to take relevant circumstances into account in arrlvlng at the decisions of 8 February 1987. In my oplnlon, no reason has been shown which should lead the Court on appeal to take a different view.
The next submission on appeal was that the decisions should be set aside as being unreasonable. This challenge was rejected
at flrst instance. Having regard to the test expressed by Mason,
J. in Minister for Aboriginal Affairs v. Peko Wallsend (112 C.L.R.
24 at pp.40-41) the appellants have, in my oplnlon, falled to establlsh that the decisions were "manlfestly unreasonable".
The final submission of the appellants was that as the
deportation order of 20 August had been set aside ab initio, the
appellants were entitled to a declaration that they had been
unlawfully detained. His Honour had relected slmllar a submission, saylng:
"The next declslons attacked were described as decisions that 'the applicant be detained In custody pursuant to s .39 of the Migration Act 1958'. The date of the declsions was given as 20
- 2 4
.
August 1986 to 2 December 1987. Although it may be
assumed from the fact that
in custody that directlons must have been given
pursuant to s.39(6) of the Act, the evidence does
not disclose what decisions were taken or when theythe applicants were kept
were taken or by whom or even whether the
decislon-makers were offlcers of the Department of Immigration and Ethnic Affalrs. The term 'officer'
wide
Migratlon Act.
These proceedings are not an actlon for unlawfuldefinition by s.5(1) of the
is given a
imprisonment. If they were, lt could well have been sufficient to prove the detention and to put
forward grounds tending to show that any decisionsauthorising the Imprisonment must have been taken
for an improper purpose. But, these proceedings seek orders of judicial revlew with respect to decisions. In the absence of identlflcation as to the date and terms of declslons and to who was or were the decision-maker or decision-makers, it is not appropriate that any order by way of judiclal review should be made. I therefore do not consider
these decisions further.".
In my opinion, no reason had been shown to lustify any
contrary view. Had it been necessary to determine the questlon whether the detention of the appellants was unlawful, there would have been a need to consider, amongst other things, the provlslon
in s . 2 0 ( 2 ) of the Migration Act 1958 that:
" ( 2 ) The validity of an order for the deportation
of a person shall not be affected by any delay in the execution of that order.". .
I would dismiss the appeal. As both the appeal and
cross-appeal should, in my opinion, be dismissed, I would make no order as to costs. I certlfy that thls and the
precedlng twenty four ( 2 4 ) pages are a true copy of the Reasons f o r
Judgment hereln of theHonourable Mr. Justlce Sweeney
Dated:
..... ) p . d . . . . . . . . . . . .
Counsel for the appellant: Mr. J.J. Spigelman Q.C. wlth Dr. G.A. Fllck
Solicitors for the appellant: Barlow & Co.
Counsel for the respondent: Mr. C.J. Stevens
wlth Mr. R. Greg
Sollcitocs for the respondent: Australian Government Sollc~tor
Dates of hearing: 26 & 27 May 1988 Date of ludgment: 4 August 1988 IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) )
DIVISION GENERAL 1
BETWEEN: PARK OH H0 L .
No. G 562 of 1986
AND : THE MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
BETWEEN: KO JUNG WOONG Appellant
No. G 293 of 1987
AND : THE MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS OF
THE COPIMONWEALTH OF AUSTRALIARespondent
BETWEEN: LEE JUNG IN Appellant
NO. G 294 of 1987
AND : THE MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
BETWEEN: CIIUNG BQNG YOL Appellant
No. G 295 of 1987
AND : THE MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS OF
THE COMMONNEALTH OF AUSTRALIARespondent
BETWEEN: SONG BANG JIN Appellant
NO. G 296 of 1987
AND : THE MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA Respondent
BETWEEN: LEE JAE EUN Appellant
No. G 291 of 1987
AND : THE MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
Respondent
BETWEEN: HAM BUM HOON Appellant
NO. G 298 Of 1987
AND : THE MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS OF
THE COMMONWEALTH OF AUSTRALIARespondent
CORAM: SWEENEY, MORLING and FOSTER, J J
DATE : 4-AUGUST 1 9 8 8
REASONS FOR JUDGMENT
MORLING J.: These are seven appeals and cross-appeals from declsions of a judge of the Court 111 separate proce?dlngs
brought by each of the appellants under the Admlnlstratlve
Decisions (Judicial Review) Act 1 9 7 7 . By consent, all theappeals and cross-appeals were heard together. It is common
ground between the parties that the declslon in any one of the
matters wlll determine the result in all of them. The appellants sought orders of review in respect of
decisions of delegates of the Minister of State for Immigration
and Ethnic Affairs taken under the Migration Act 1958. The
nature of the decisions sought to be challenged can best be
appreciated after reference to the facts which gave rise to the making of them. The Facts The appellants entered Australia on ( o r , in the case of two of the appellants, before)
2 6 July 1986.
They came to
this country from Korea after contacting a M r Chol, whom they had been informed could arrange their entry into Australia.
They paid M r Choi a sum of money. They were accompanied to Australia by M r Choi and were shepherded through the Customs
Hall with the connlvance of corrupt Customs officials. They
did not have entry permits o r visas to enter Australia. The learned trial ludge was satisfled that it was open
to the off;cers who handled the matters in the Department of
Immigration and Ethnic Affairs to conclude that the appellants entered Australia illegally, that they were aware that they
were entering the country illegally, that is to say, either without a permit o r by means of corruption, and than they did not enter this country merely f o r short-term business or
tourlst reasons. H ~ s concluslons In thls regard were not challenged on appeal.
The appellants were arrested on 2 6 July 1986, and were
interviewed by an immigration officer. On 3 1 July 1986 Mr
Scott, an officer of the Investlgation Branch of the Department, interviewed them at the Villawood Detention Centre. Scott had in mind that they might assist in the prosecution of
the Customs officers who had been involved in their illegal
entry. Scott stated in the course of the interview that the appellants had the alternative of returning or being returned immediately to Korea or, if they wished, of assisting the police in the prosecutions of the Customs officers, in which
case conslderation would be given to their release from the
Villawood Detention Centre and to the issue to them of work
permits. The interview that if they co-operated with
appellants
galned
the
impression
at
hat
the police, favourable
consideration would be given to their release from the Detention Centre and to the grant of work permits. However,
the question of their release from detention was not resolved
until November 1986 and, in the meantime, they were kept in custody at Villawood.
I'n early August 1986 they were interviewed by an
officer of the Australian Federal Police. On 8 August they were glven a letter, in English, in which they were informed that the question of their deportation would be put before a delegate of the nlnlster and tnat i f they vished to put any
material before the delegate, apart from the informacion which they had provided at interview, they should put that material
In writing by 11 August. The letter also informed them that
if they chose to make formal applications for the grant of
resident status their appllcatlons would be assessed by an
officer and the assessments would be put before the delegate of
the Mlnlster who would consider the appllcatlons and the
question whether they should be deported. NO response was made to thls letter. On 19 August 1986 Mr R . Wilson, a senlor offrcer of
the Department, forwarded to Mr J.R. Tushan, the Actlng
Director for New South Wales of the Department and the
Minlster's delegate, statements settlng out the posltion of each of the appellants. He recommended that resldent entry
permits be not granted, that the concession of voluntary
departures should not be made and that the appellants should be
deported. On 20 August Mr Tushan adopted these recommend-
ations and ordered that the appellants be deported from Australla.
Notwithstanding that provides that, "Where the Minister has made an order for the
s . 2 0 ( 1 )
of the Migration Act
1958
deportation of a person, that person shall, unless the
.
Minister, revokes the order, be deported accordlngly. ' I , the
appellants were not deported pursuant to M r Tushan's orders. The reason for the delay in carrying the orders Into effect was
that the appellants remaln ln Australla to help wlth thP prosecutlon
Director of Publlc Prosecutlons deslred that
the
of
the Customs officers. On 29 August 1986 the Dlrector of Public Prosecutlons wrote C O the Department statlng that the
appellants were essentlal to the prosecutlon and that It would be unllkely that the prosecutlon would be flnallzed In less
than eighteen months. For some months thereafter there was no
resolution of the appellants' posltlon, despite several attempts by them to obtain a decision on their future.
On 18 November 1986 an offlcer of the Director of Public Prosecutions informed an officer of the Department that
it was no longer oblrgated Arrangements for the deportations were then made, but they
to hold
up the deportations.
were
stayed after applications were made to the Court for orders of
review under the Judlcial Review Act. These applications were
made on 2 6 November. When the applications flrst came before the Court, the respondent undertook not to proceed further with the deportations pending the final hearlng.
On 28 November,
the appellants' solic~tor requested the immediate release of his clients and gave notice that claims for damages would be
made by them against he respondent for thelr alleged wrongful detention since the making of the deportatlon orders.
On 2 December 1986 the Australian Government
Solicitor advised the appellants that the respondent proposed
to reconsider their deportation and invlted them to make any .
further submissions to hlm. They were also advlsed that they would be released from the Villawood Detention Centre, provided they gave undertakings on terms which were specified. These undertakings were glven and they were released fron detention the same day.
In response to the letter of 2 December, the
appellants' solicitor made wrltten submlsslons to the I .
respondent on 1 7 December. There was further correspondence
in December 1 9 8 6 and January 1 9 8 7 between the Department and the appellants' sollcitor In which he unsuccessfully sought
work permits for his clients.
On 6 February 1 9 8 7 an officer of the Department made a submission to M r W.A. McKinnon,
the Secretary of the Department
and the Minister's delegate, recommending that the deportatlon orders signed on 2 0 August 1 9 8 6 be revoked, that the appellants
be refused further refused permanent resident status, that they
temporary
entry
permits,
that
they
be
be refused the
option of voluntary departures from Australia and that fresh
deportation orders should be made against them. On 8 December Mr McKinnon adopted all these recommendations and slgned new deportation orders. Fresh proceedings were then commenced
seeking orders of review of Mr McKinnon's decisrons of 6 February. All but one of the appellants remain ln Australia
pending the determination of the proceedings.
The proceedings at flrst instance .
In the proceedings at first instance, the appellants
sought orders of review ln respect of a number of decisions
which they claimed were made either In August 1 9 8 6 or dul-~ng
the period they were In custody or ln Febcuary 1 9 8 7 . These
included Mr Tushan's decisions, made on 2 0 August 1 9 8 6 , that
they be refused the concession of supervised voluntary
departures and that they be deported. Other decislons were said to be declsions to keep them in custody between 20 August and 2 December 1986 and declslons that the deportation orders signed on 20 August 1986 be suspended or not executed. Orders of review were also sought of che decisions taken on 8 F bruary
1 9 8 7 by M r PlcKinnon that the appellants be refused work permits
and temporary entry permits, that they be refused the grant of resident status and the concession of voluntary supervised
departures, and that they be deported from Australia. Other
decisions sought to be challenged were that the appellants be required to pay maintenance costs pursuant to s.21A(7) of the
Nigration Act from 2 0 August 1 9 8 6 to 2 December 1986 . It will
be unnecessary to make further reference to these last-
mentioned decisions as the Minister, through his counsel, informed the Court on the hearing of the appeal that the
Commonwealth did not press any clalms under s . 2 1 A ( 7 ) . The relief sought included orders quashing the various
declsions said to have appellants had been unlawfully detained
been
made,
declaratlons
that
the
by the respondent
between 2 0 August 1 9 8 6 and 2 December 1986 and damages for thelr alleged unlawful detention.
His Honour dismissed the view that damages are
the claims f o r damages, being of
not a remedy which may be obtained In
proceedings under the Judiclal Xeviev Act. - He also r;?]ected a submission thar s . 2 2 of the Federal Court of P.ustralia Act 1976 which authorizes the Court to give "all remedies to whlch any
of the parties appears to be entitled in respect o f a legal
equitable claim properly brought forward by him in a matter
. . . . ' I was a sufflcient soutce of power f o r the making o f awards
of damages in the circumstances of che cases before him. He
took the vlew that the only proceedlngs before hlm were proceedings under the - Judlcial Review Act, and that there were no proceedings before him i n which clalms f o r false imprison- ment were made against the Commonwealth o r an offlcer of the Commonwealth.
His Honour also re~ected arguments hat the
deportation orders made on 20 August 1986 were invalid because they were made In breach of the rules of natural ~ustlce and wlthout independent consideration of each of the appellants' clrcumstances. However, he concluded that M r Tushan erred In law in maklng the deportatlon orders. He vas of the view that
M r Tushan must have had in mind at the time he signed the
orders that they would serve to authorize the detention of the appellants pending resolution of the question whether they should be permitted to remain in Australia f o r the purposes of
the prosecution of the Customs officers. He said: "When s.18
authorizes the Minister o r his delegate to order that a person be deporteb. from Australia, it does not authorize the Minlster
o r his decision-maker has determined that the prohlblted non-citizen
delegate
to
sign
a
deportaclon
order
unless
the
shall be deported as soon as appropriate arrangements f o r his deportation can be made. A deportatlop o r d e r may nnt be made as a mere indication of a posslble or likely future course of
action."
His Honour was of the vlew that the deportatlon orders
were made at a time when it was not correct to make them,
because the part which the appellants were to play ln the
prosecutions was determined. He therefore concluded that
under
conslderatlon
and had not
been
Mr Tushan's declslon
to order the deportations was "flawed by error". He relected
a submlsslon that the Court should not make an order wrth
respect to the deportation orders made on 20 August 1986
because they had made orders setting aside ab initio
subsequently been revoked. Accordlngly, he
the deportatlon orders made
on 2 0 August 1986, and lt 1s these orders whlch are the sublect of the cross-appeals.
Apart from maklng declarations that the maintenance
charges demanded by the Department under s.21A(7) of the
Migration Act were not payable, his Honour decllned to grant any of the other relief sought. He vas of the view chat the evidence dld not disclose who took the declsions to keep the appellants custody, when those declslons were made, the terms
of them or, lndeed, whether the declslon-maker was an offlcer of the Decartment. He therefore relected the claim for relief
in respect of those decisions. For broadly slmllar reasons, he declined to grant rellef ln respect of the declslons that the deportation orders slgned on 20 August 1986 be suspended or
not executed. He thought that no actual declslons ourparting
to have been made under s . 2 0 of the Mrgratlon -- Act suspending the deportation orders had been ldentlfled.
Hls Honour relected submlssions that there had been
breaches of the rules of natural justice in the maklng of the deportation orders on 8 February 1987. He was of the opinion
that an adequate opportunity was given to the appellants to put
all they wished in respect to the question of thelr deportation
and also wlth respect to the other matters which were considered on 8 February. He also rejected an argument that
there was bias on the part of departmental officers who
considered the appellants’ posltion in 1987. Thls bias was
sald to arlse because the officers knew of the appellants’ proposal to sue the Minister In the Supreme Court of New South
wales for damages for unlawful lmprisonment. The decisions taken on 8 February 1987 were also attacked on a number of other grounds, but they were all rejected by hls Honour. The validity of the declslons made on 2 0 August 1986
The questlon which 1 s central to all the decislons
made in August 1986 is whether Mr Tushan‘s declslons to make
and sign tGe deportation orders on 20 August were flawed in the
manner found by his Honour. I think it appears from hls Honour’s reasons that he inferred that at the time he slgned the orders Mr Tushan did not intend that they would be carrled out according to their terms, but rather that their purpose was to s e r v e to authorlze the detentlon of the appellants pendlcg
the maklng of a decislon whether they should be permitted to remaln In Australia for the purpose of giving evidence in the proceedings against the Customs offlcers. Counsel for the
Minister submitted that, in substance, this was a flnding that
M r Tushan's decislon was made for an improper purpose, and that this was not the ground upon which his decision was attacked by the appellants. It was argued that if the Mlnlster had been given notice that such a flndlng was under consrderatlon, he mlght have led evidence which mlght have led his Honour to a different conclusion on thls point.
It is not easy to dlscern exactly how the trial was
conducted. However, one of the grounds relied upon in the
applications for orders of review was that referred to in
s,5(l)(e) of the Judlcial Review Act, that is, that the making
of the decisions conferred by the enactment in pursuance of which the decisions
was
an
improper
exercise
of
the
power
were made. It may well be that, as presented in argument, the
case for the appellants was not directly founded upon
s.5(l)(e). Counsel who appeared at the trial did not appear on the hearing of the appeal and It is not possible to discern
exactly how the matter was put to the trial Judge. However, even if lt was not directly raised in argument, the questlon whether th'e deportation orders mlght be invalid because thelr
purpose was to authorize the retention In custody of the appellants pendlng the pros-cutlon must have, or should have,
attracted counsel's attention. I would therefore not uphold the cross-appeal on thls ground. The more substantial argument relled upon by counsel for the Minister was that his Honour was in error in inferring
that the purpose of M r Tushan's declsion to sign the
deportation orders was to authorize the detention, rather than the removal from Australia, of the appellants. I have come to the conclusion that this submlsslon is sound. There 1s no
doubt that, as his Honour inferred, Mr Tushan was aware that officers of hls Department were discussing with officers of the
Director of Public Prosecutions the question whether the
Director might wish the appellants to give evidence in the
prosecution of the Customs offlcers. It appears that on
18 August 1986 a telex was sent by one of the Minister's officers to the Director of Public Prosecutions asking whether
would prosecution. On 22 August some discussion was held between be required as witnesses in the
the appellants officers of the Director and of the Minister in relation to the prosecution,
and on 29 August the Director wrote to the
Minlster advising hlm that all the appellants would be essential witnesses. evidence to indicate that, as at
However,
there
was
nothing
in
the
2 0 August 1986, any formal or
even informal request had been made by the Director that the
appellants be kept in Australia. Nor was there any evidence
that, had such a request been made M T Tushan would have declded
on 20 Auguit to accede to it. The fact that at some tlme after
20 August the Dlrector‘s request was acceded to oes not, to my
mind, justify the drawlng of an inference that, as at 2 0 August, he had declded to accede to it.
I think the better V ~ ~ S J of the evidence 1 s that, as at
20 August, Mr Tushan intended that the deportation orders should take effect according to their tenor, and that shortly after 20 August he or other officers in the Department decided
to accede to the request made by the Dlrector of Publlc Prosecutions. I do not think the evidence supports a positlve
finding that, by 20 August, he had declded that the appellants should only be deported If the Director gave his assent to that course. As his Honour's concluslon on thls matter was reached by drawing inferences from documents and undisputed facts and was not based upon the crediblllty of witnesses, this Court 1s
in as good a posltlon as he was to determine whether the inference he drew was the correct one. See Warren v Coombes (1979) 142 C.L.R. 531, especially at p.532 per Gibbs A.C.J., Jacobs and Murphy JJ. I would not infer from the evidence that when M r Tushan signed the deportation orders he had not determlned that the appellants should be deported as soon as appropriate arrangements for their deportation could be made.
To hold otherwise would be to interpret Ivlr Tushan's decisions
on 20 August with the benefit of hindsight. Accordlngly, I do
not think they should have been set aside and I would allow the cross-appeals. Were the ippellants lawfully detained?
It was submitted on behalf of the appellants that even
if the deportation orders made on 20 August 1986 were valld,
they did not authorize thelr detention ~n custody untll 2 December when they were released. It was further submitted that a declsion must have been taken by somebody to keep them
In custody, that that declslon was unlawful, and that the trial
judge ought to have made declarations to that effect and
awarded damages to each of the appellants. I shall defer conslderatlon of the questlon whether, in the proceedrngs whlch were before his Honour, the Court had lurisdictlon to award the appellants the damages which they claimed. His Honour thought that there was insufficient
identiflcatlon of the declslons to keep the appellants In
custody, and justify the making of any orders
of
the persons who made those declslons,
to
of review under the Judiclal
Review Act. Although, for reasons whlch I shall presently state, I thlnk hls Honour was correct In refusing to grant the
relief sought, I do not agree in the reason glven by his Honour
for reaching that decision. Plainly, decisions were taken to keep the appellants In custody. The evidence discloses that they made several requests to be released. Those requests were made to the person In charge of the Villawood Detention Centre
and appear to have been forwarded to officers ln the
Department. It I S true that lt was not possible to Identlfy
which offlcer or officers declded that the appellants should be
kept in custody. However, lt is reasonable to lnfer that the
decislons were adopted by the Minister and I think they should
properly be regarded as his decisions. TO treat them otherwlse would be t o deprlve the appellants of the remedies of the
Judicial Review Act by reference to consideratlons of form rather than of substance.
I have not found the questlon xhether the appellants
were lawfully kept I Q custody easy t o resolve. Tt- c
circumstances in which they were kept in custody were
particularly unfortunate, and should not have been allowed to occur. They have every reason to be aggrleved that so much time passed before a decision was taken as to their future.
Nevertheless, the question whether they were lawfully kept in
custody must be determined by reference to the relevant provislons of the I.ligration Act, to which I now turn.
Sectlon 2 0 ( 1 ) of the Act provides that where the
Minister has made an order for the deportatlon of a person, that person shall, unless the Minister revokes the order, be deported accordingly. The validity of an order for the deportation of a person i s not affected by any delay ln the
execution of that order: s . 2 0 ( 2 ) . Section 39 1s in the following terms:
“39. ( 1 ) where an order for the deport-
ation of a person i s in force, an officer may, without warrant, arrest a person whom he reasonably
supposes to be that person, and a person soarrested may, sublect to this sectlon, be kept ir!
custody as a eportee in accordance with
sub-section ( 6 ) .
( 2 ) Where an officer arrests a person In
accordance with this sectlon, the officer shall
forthwith inform the person arrested of the reason
for the arrest and shall, if that person so requests, furnish to him, as soon as practlcable,
pafticulars of the deportatlon order.
( 3 ) If a person under this section claims,
within 48 hours of his arrest and while he i s in custody, that he is not the person in respect of whom the deportation order is in force, the person to whom the clalm 1s made shall - (a) if he 1s an offlcer - as4 hlm; cr
( b ) in any other case - cause an off~cer to ask him,
to make a statutory declaratlon to that effect,
and, if the perscjn arrested makes such a
declaration, the officer who asked him to make th declaration shall take him before a prescribed
authority withln 48 hours after the maklng of the
declaratlon, o r , i f it 1 s not practicable to take him before a prescrlbed authority within that trme,
as soon as practicable after th explratlon of that period. (3A) If an arrested person who I S required
under sub-section ( 3 ) to be brought before a
prescribed authorlty wlthln a partlcular perlod, 1 s
not so brought before a prescrlbed authority, he shall be released.
( 4 ) Where a person is brought before a
prescrlbed authorlty under this ectlon, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person 1s a deportee and, 1f the prescribed authority 1 s satisfied that there are such reasonable grounds, he shall, by wrltlng under his hand, declare accordlngly.
( 5 ) Where a prescribed authority makes a declaration ln accordance wlth sub-section ( 4 ) , the
arrested person may be held In custody as a
deportee in accordance with sub-sectlon (6), but otherwlse the prescribed authorlty shall direct the
release of that person and he shall be released accordlngly. ( 6 ) A deportee may be kept In such custody as the Minister o r an officer directs -
( a ) pendlng deportatlon, untll he is placed on board a vessel for deportatlon;
(b) at any port o r place in Australla at whlch the vessel calls after he has
been placed on board; o r
(c)
on board the vessel until her departure from her last port o r place of call in Australia.
(7) Notwithstandlng anything contalned In this sectlon, an authorlzed offlcer may at any tlme
order the release of a person who is In custody under thls sectlon.
( 8 ) Mothlng contained in, o r done under,
this section prevents the Supreme Court of a State o r Territory of the High Court from orderlng the release from custody of a person held l n custody
under thls section where the Court flnds that there
is no valid deportation order in force In relatlon to that person."
It is to be observed that a deportee may be kept in custody "pending deportation" until he
1 s placed
on board a
vessel for valid order for the deportation of a person remains in force,
deportation (s.39(6)(a)).
In my oplnlon, if a
he 1s held "pending deportatlon" until he 1 s placed on board a vessel for deportatlon, notwithstanding an unreasonable delay
in placing him on board the vessel. The delay cannot affect the validity of the order ~tself. If i t was valld at the tlme lt was made, it will remain valid until it is revoked. That is not to say, of course, that a deportee may be kept in
thereafter, the last occasion being on the 15th August, 1986. Before the expiration of the seven day perlod of detention then authorised, a deportation order was made on the 21st August which
resulted in their detention thereafter being deemed to be pursuant to S. 39 of the Act. It is the lawfulness of this order and the detention thereunder which constituted the m a ~ o r issue before the trial ~udge. It is clear that it was the desire of the Australian
Federal Police, who were interested in successfully prosecuting the principals involved in the illegal migration scheme, to
secure the services of the appellants as wltnesses against these .
persons. It is equally clear that relevant officers of the Department of Immigration and Ethnlc Affairs ("The Department") were aware of this desire, and vished to co-operace ~n the prosecution.
On the 31st July, 1 9 8 6 , the appellants were intervieved
at the Villawood Detention C$ntre, through the assistance of a Korean interpreter, by H r . Scott, an officer of the Department, apparently performing llasion duties between the Department and the prosecution authorlties. Although dispute exists a s to what offers were made to them by Mr. Scott as to advantages to be afforded them in return for their co-operation in the impending prosecution, it is not disputed that the appellants ultimately indicated that they would be prepared to remain In Australia and
give evidence in the prosecution. It IS also clear that they understood that they might be requlred to remain for a period of some eighteen months or more and that they were in hope that they
would be released from detention and allowed to work. It is alsoclear that as at the end of July, 1986, the terms upon :rhich they
were to remain in Australia and render assistance to the prosecution were under consideration by relevant Commonwealth
authorltles.
On the 26th of July interviews appellants by Mr. Ian Johns, an officer of
had been held with the
the Department of
Immigration and Ethnic Affairs. The official documents relatlng
to this interview are concained in the appeal papers from page
198 onwards. They appear to record a routlne type of interview
between a n immigration o f f l c e r and a person detalned under S. 38 of the Act, with a view to obtainlng inf?rmarion :or consideration on the question of \<hether or noc the gerson s?ould
be deported. There is nothing in thls material to indicate any l.
request to the lntervlewee '-0 remain in Australia for the purpose of giving evidence. After thls lnterv~ew, all the appellants, as interviewees, apparently received, on the 8th of August, 1986
formal documents from the Department calling upon them to place any further material bearing upon the questlon of deportation upon which they might wlsh to rely before the Department before the close of buslness on the 11th August, 1986. It appears that none of the appellants avalled themselves of this opportunlty. I
do not find that surprlslng ln the llght of the lntervlew that had by then prevlously been held with M r . Scott.
On the 29th of August, 1986 the Director of Publlc
Prosecutions wrote to the Regional Dlrector of the Department
statlng (inter alia) that all of the Korean prohibited non-citizens presently held in custody pendlng deportation were
essential to the prosecutlon and that lt was unllhely that the matters would be finalised in less than elghteen months. It was also indicated that the question of indemnity to witnesses was under consideratlon and that efforts would be made to have the proceedings expedlted. This letter was, of course, sent after
the relevaAt deportation order had been made but, slgnlflcantly,
it refers to an lnter-departmental telex dated 18th August, 1986 concernlng "Operation Tent" (the code name of the pollce operatlon under which th? arrests had taken place). That telex was referred to as one in '~ilch "Y3ur Department h a s yequested my
views concerning a number @E mlacters". T h e t r l ~ ~ d o e s qct appear
to be in evidence but its contents can readily enough be inferred from the terms of the letter. It had clearly sought lnformatlon on behalf of the Department from the Director of Puhlic Prosecutions as to whether all the Korean prohiblted non-citlzens
would be requlred as w~tnesses and as to how long they would need to be avallable for that purpose. It seems probable that the
questlon of lndemnlty from prosecution not only in respect of
charges of consplracy and the like being brought agalnst the prlncipals but also in respect of charges under the Act Itself,
was raised in the telex.
The significance of thls, of course, lies in the
indlcation that officers of the Department were fully aware, before the 18th of August, chat all Koreans who had been arrested
pursuant to S. 38 of the Act and the legality of whose detentionwas requlred to be tested by a Court at intervals of not less
than seven days, would probably be required as Crown vitnesses at hearings which would not be held for a conslderable number of
months. It was also known, of course, that these potential
witnesses had already provided lmportant statements to the prosecution authorltres. Ic was in thls context of fact that Mr. J. R.'Tushan, Acting D~rector for New South Wales and Delegate of the Mlnlster of State for Immigration and Ethnlc Affairs, entered upon his considerations as to whether deportatlon orders should be made against the appellants under S .
18 of the Act.
Before considering Ur. Tushan's decision, I flnd i t
convenient to set out what I consider to be the relevant legal principles. Firstly, I adopt, vlth respect, the following statement from the Judgment of Davies,
J. in Ruangrong v. Minister for
Immigration and Ethnic Affalrs ._ (unreported 29th March, 1988):- "The material considerations which a decision-maker
must take into account are those which were before
him at the tlme he made his decision or which, if not actually before him, were or should have been 1n the hands of his officers and ought to have been brought to his attention."
I also respectfully agree with and adopt what his
Honour said as to the effects of S. 18, 2 0 and 39 of the
Act, upon the validity of deportation orders. His Honour said
(at pages 18 and 19 of the ludgment under appeal):-"when S. 18 authorises the Minlster or his delegate to order that a person be deported from Australia,
it does not authorise the Minister or h ~ s delegate
to slgn a deportation order unless the decision-maker has determined that the prohlblted
non-cltlzen shall be deported as soon asappropriate arrangements for his deportatlon can
be made. A deportation order may not be made as a mere lndlcatlon of a possible o r likely future course of action. Once made, the deportation
. order may not be suspended. .See Daliikavak v. Minister f o r Immlgration and Ethnic Affalrs (1985)
61 A.L.R. 47-i->~d-Mahoney and Others v. Dillon -- ( 1 9 8 7 ) 71 A.L.R. 395. Section 20 Imposes the statutory ducy that a deportation order be
implemented "acordingly", that 1s C O say accordlrlg
to its terms. Sectlon 39 authorises the arrest and detention of the prohlblted non-cltlTen
pending deporiation, buc that 1 s to say o ~ l y for the purposes 3 f deportatlon and durllg the perlod
~t may take to al-renge Iepo::atl3n by p'eans w h ~ c h
are appropri?te havlng rega:? to :he cerns of the order and the circumstances of the case."
I am firmly of the v1ew that In no clrcumstances may a
deportation order be made, or malntalned ip exlstence, for the purpose of detainlng the sublects of lt in custody for any period
in excess of that whlch 1s reasonably necessary C O arrange for thelr compulsory removal from Austral~a. For my part, I am not
prepared to accord to the words of S . 2 0 ( 2 ) any efficacy to
confer continued validity upon a deportatlon order or detentlonpursuant to lt once a sltuatlon has arlsen whereby detentlon has
ceased to be for the purpose of deportatlon. In partlcular, I am satlsfied that a deportatlon order can never be legally made or maintained f o r the purpose of keeping persons in custody to
ensure their avallabllrty as wltnesses In a prosecutlon. It 1s a fundamental principle of statutory construction that there 1 s a presumptlon against an ~ntentlon by the Leglslature to invade common law rights. As O'Connor, J. said, in the well known passage ln Potter v. Mlnahar! (1908) 7 C.L.R.
"It 1s In the last degree lmprobable that the
legislature would overthrow fundamental
princlples, lnfrlnge rights, or depart from the277 at 3 0 4 : -
general system of law wlthout expressing rts lntentlon w ~ t h lrrestible clearness; and to glve
.
any such effect to general words, slmply because they have that meanlng ~n thelr wldest, or usual or natural sense would be to g1ve them a meanlng
in whlch they were not really used." The common law rlght in questlon here 1s the rlght to
personal liberty. It 1s the most fundamental of the human rlghts
protected by the Common Lav. In Reglna v. B o l t o n E'. Parte - Beane,
70 A.L.R. 225 (at p. 235) Drane, J. spoke 0 5 1t as Io l10ws : - "The common law of Australia knows no lettre de cachet o r LJ..
executive warrant pursuant to whlch elther cltlzen or alien can
be deprlved of hls freedom by mere admlnlstratlve dcclslon or actlon. Any offlcer o f the Commonwealth EXeCUtlve who, wlthout ~udlclal warrant, purports to authorlse or enforce the detentlon in custody of another person
1 s actlng lawfully only to che
extent that his conduct 1s ~ustified by clear scatutory mandate. That belng s o , lt is the plaln duty of any such offlcPr to satisfy hlmself that he 1s actlng wlth the authorlty of the law in any case where, In the name of the Commonwealth, he dlrects that a person be taken and held In custody. The lawfulness of
any such administratlve dlrection, or of actlons taken pursuant to it, may be challenged In the courts by the person affected: by
applicatlon for a wrlt of habeas corpus where lt 1s avallable orby reliance upon the constllutlonally entrenched rlqht to seek In
this court an in]unct1on agalnst an offlcer of the Commonwealth. It cannot be t o o strongly stressed that these baslc qatters are not the stuff of empty rhetorlc. They are the very fabrlc of the freedom under the law whlch 1s the prlma facle rlght of every cltizen and allen in this land. They represent a bulwark agalnst
tyranny. . . . " .
In my view, sectlons 18, 20 and 3 9 of the Act provlde
no warrant for the detentlon of any person other than for the
limited purpose and perlod referred to in the passage quoted from
the ~udgment of Davles, J. . -
L .
In the present case it appears that the Departmental
Minute placed before M r . Tushan to be considered by h i m ~n relation to the making OK othcrwlse of the deportation orders of the 20th of August, 1986, contained no reference to the
conslderations then In train as to the appellants' remalnlng ln Australia. Obvlously, these were matters that needed to be consldered by the Delegate when determlnlnq whether to make a
valid deportation order, 1.e. one which was to be Implemented
wlth all reasonable expedition. Clearly, these matters were well within the knowledge of 1.115 Departmental offlcers. If N r . Tushan was not aware of them at the time of maklnq of the deportation
orders, then, in my viev, he clearly falled to take into account
a relevant consideration when exercising his power under S. 18 o f
the Act. This would provide a ground for revlew under S. 5(l)(e)coupled with S . 5(2)(b) of the Adminlstratlve Declsions (Judicial
Revrew) Act, 1977. If, on the other hand, he was so aware, then
the Inference 1s most clearly open that he made the order, not intending that it be carrled into effect "accordingly", but that
it be used for the purpose of authorising detention of the appellants whilst the question of their remaining ~n Australia to
.
give evldence and upon what cerms, was decided beizween the
Department and the prosecution authoritles. If this vere the position, then, for reasons already given, he would have
exercised the power for a purpose other than the purpose forwhich it was conferred. Thrs iiould prnvlde a clear 3round f o r
revlew under S. 5(l)(e) ccu?led x~r;h S. S ' ? ) ! c ) .
The learned trial ludge considered that the latter
position had been establlshpd on the evldence. Some complaint
has been made in the hearing of the appeal that this flndrng was made in the absence of any clear lndlcatlon that such a case was being made by the appellants at the trial. It is not entirely easy to determine what course the trlal took. However, I feel comfortably satisfled that the question of mlsuse of power was sufficiently raised durlng the hearing to enable the matter to have been dealt with by way of evldence, ~f desired. The absence
of any evidence as to N r . Tushan's express purpose In making the order clearly enables the Inference to be more readlly drawn that the order was made through at least a mlstaken conception as to
the extent of the powers given by the sectlons and thus for the
unauthorized purpose.
This view is, ~ndeed, passage whlch appears in a Departmental report
strengthened by the following
of an
investigation into complaints made by the appellants agalnst Mr. Scott, which appears to have been provlded early in November, 1986 : -
"All seven Koreans are belng held pending advice from the Dlrector of Public Prosecutions as to whether they would be required to glve evidence against the principals involved ln the racket. In
this regard, they have all been interviewed by
Federal Police and Immlgratlon offlce~s and the question of qr?ntrng them ~ndemnlrles from
prosecution hzcs a l s ? beep r c ~ s e c l . (3cccntly a declsion v a s lade CO proceej ,llth :he::
deportation CO Korea)."
- .
14.
Moreover, in the materlal supplled pursuant to S. 13 of
the Administrative Declslons (Judlclal Rev1e.g) Act, 1977 1n
relation to the deportation order of the 8th Febluary, 1987, to
whlch reference wlll be made below, the followlng statement 1 s
made in relation to the deportation order of the 20th August,
1986 :-
"On the 20th August, 1986 a Delegate f o r the Minister for Immlgration and Ethnlc Affalrs slgned
an order for ... deportation. . . . Custody under S. 39 of the lllgratlon Act contlnued to ensure . . .
avallabllity for deportation."
It is undisputed that from the tlme when the
deportation order was signed, no attempt was made to glve effect
to it until November. In the meantime, the appellants had been detained in custody desplte mountlng requests on thelr part to be
released and sent home to Korea. In my view, lt was a total misconceptlon of the power given by sectlon $9 to regard it a s
enabling the appellants to ue detalned lndeflnltely to ensuretheir "avallabillty for deportatlon".
I am satlsfled that, on the evidence before hlm, the Trial Judge was amply ~ustlfled
ln lnferrlng that the August 1986
Deportatio; Order was made for a purpose not authorlsed by the
statute.
I am also qulte satlsfled that his Honour vas correct
in ordering, pursuant to S 16 of the Admlnlsrratlve D~.clslons
(Judicial Review) Act, 1 9 7 7 :hat t!?? Depotration otje: De set aside ab Initio.
I therefore conslder that the cross-appeal should be
dismissed and the trlal ~udge's order be confrrmed. As I hold the vievi that the appellants were detalned
from the 20th August, 1 9 8 6 without lawful warrant, I flnd rt unnecessary to conslder the question whether later declslons to retain them In custody despite thelr requests to be released can properly be identlfied and then characterlzed as decisions under "an Enactment". It seems to me that it is of no real relevance
to consider whether decisions were in fact made or whether the
appellants pleas were simply Ignored. The slmple fact 1s that their detention was unlavful. In these clrcumstances I vould regard it as appropriate that a declaratlon to that effect
be made under S. 16(l)(c) of
the Administrative Declslons (Judlclal Review) Act, 1 9 7 7 . __ In the appeal, conslderable time was devoted to the
submission that the trlal ~ u d g e should have considered the
awardlng o f ' damages for unlawful detentlon or abuse of statutory
power. It 1 s clear that the appellants have commenced proceedlngs in the Supreme Court of New South wales clalmlng
damages in tort in this way. I am quite satlsfred, far the reasons given by the Trlal Ju?ge , that davages arc- not rapable cf being awarded wlthln the contexr; of an appllcat-on ior ~udlclal
review under the Adminlstratlve Declsions (Judlcral Revlew) Act,
1977. Section 16 of that Act simply makes no provls~on for such
a remedy. I am quite satistied that, having regard to the whole of the Act, the discretionary power given
to the Court by S.
16(l)(d) to make an order "directing any of the partles to do . . .
anything" is not apt to empower the Court to direct one party to
pay damages to another. I am satlsfied, however, thaE i t would be possible to associate wlth proceedings brought under the Act for the review of an administrative decision, a claim for damages
based upon some appropriate head of tort. I have had the advantage of reading in draft the reasons of Morling, J. I respectfully agree with what his Honour has written in this
regard and do not desire to add anything for myself. After some initial hesitation, I have come to the view that the trial ludge
was correct in holding that no ancillary claim for damages had been properly raised before him and that his decision not to
entertain any such c1a.m has not been shown to be wrong. I would, therefore, dismlss the appeal in thls regard.
There remains for conslderation only the questions relating to the deportation order made against
the appellants on
the 8th Fe'bruary, 1987 by Mr. McKinnon, a s Delegate of the
Minister. The decisions made by Mr. McKinnon on that occasion
were five ln number belnq:-
1. To revoke the Deportation Order signed on the 20th August, 1986;
2. To refuse to grant a further temporary entry
permit to The appellants;
3 . To refuse to grant Permanent Resldenc Status
to the appellants;
4. To refuse the optron of voluntary departure;
5 . To slgn J. fresh order for the deportatlon of
the appellants.
As I understand lt, there is no clalm made that the delegate lacked power to make the deportatlon order. Qulte
clearly, the appellants were, at that point of time, a5 they had always been, prohibited non-citizens withln the meanlng of S. 6 of the Act, and therefore liable to deportatlon. Also, the revocatlon of the orlglnal order was clearly wlthln the power of the delegate pursuant to S. 2 0 ( 1 ) of the Act. The complalnt of the appellants, is, in effert, that they were glven no proper
opportunity to be heard on the questlon of whether they mlght
have been granted entry permlts or permanent resldent status, or more particularly, granted che optlon of voluntary departure
rather than compulsory deportatlon.
I am qulte satisfied, f o r the reasons glven by the
trial ~ u d g k , that the appellarlts were glven sufflclent
opportunity to put thelr case rn relatlon to the grantlng of entry permits and resldent scatus. After some hesltatlon, however, I have come to the concluslon that there h a s been a
relevant absence of procedural falrness :r relztlo? to according
to them an adequate opportu1:lty to be leard as t o :he:r belnq
allowed supervised voluntary departure lnstead of deportatlon. I am aware that, in so holdlng, I have the mlsfortune to dlffer from the trial ludge and a l s o my brethen hearlng thls appeal. Accordingly, I shall state my reasons only brlefly.
It is clear that, conslderable representatlons havlng been made by the appellants for a declslon as to
thelr position
and as to their release from detentlon, it was declded by the Department that the orlgrnal deportatlon order should be proceeded with. This declslon was made in the context that the Director of Public Prosecutlons had Indicated tn the Department
that it was no longer "obligated" to hold the appellants ln custody. By this time the appellants had had access to legal
advice and had in fact commenced proceedings for damages ln the
Supreme Court of New South wales. An interlocutory order was
obtained on thelr behalf, from a Judge of thls Court, staylng the
execution of the deportaclon orders. The hearlng of those proceedings took place on t5e 16th November, 1986. Thereafter, negotlatlons took place between the solicitor for the appellants, the Australian Government Solicitor, and the Department ltself In relation to the release of the appellants from custody and the
possible p;ovlslon of work permlts coupled wlth some status under
the Act, which would enable them to remaln ln Australia. I do not thlnk it necessary to lengthen these reasons by setting out the correspcndence which ensued In relatlon to
their negotlatlons. It :.'?S made plelr! thel-eln :hat 1l-e Department intended to enter upon a "reconslderatlon" of the
.
19.
August deportation orders. I n thls context, it invlted and received submissions as to the appellants’ belng granted rlghts
to remaln in and work in Australla pendlng the resolution of the
prosecution proceedings. I t was clearly In the mlnd of relevantDepartmental officers that the August deportation orders, whlch
were under attack, should be revoked and fresh orders f o r deportation made. In my view, no indication was given to the appellants, o r thelr legal representatlves, that the maklng of
fresh deportation orders was under consideratlon. The executlonof the old deportation orders had been stayed as a result of
court action and negotlatlons in relatlon to the sltuatlon of the appellants were being conducted ln the light of that fact.
The appellants put quite simply that, lf they had been
made aware of the fact that the department was proposlng to make fresh orders deporting them as prohlblted non-citlzens, they
would have wished to make mosr speclflc represeqtatlons that they be granted, instead, the concession of voluntary supervised
departure. The results of a deportatlon order were serlous for
them. They were persons with professlonal and managerlal qua1ificat;ons who not lnfrequently travelled abroad from Korea. The making of a deportatlon order agalnst them could obvlously have serlous repercussions ln relatlon to future forelgn travel apart from lmposing severe restrictions upon thelr future travel
to Australia. They obviously had an i~terest In beln? h?ard on
such a matter. In my vlew, the :allure to acqua:.t t h e m
expressly wlth the fact chat the fresh deportation orders were belng considered, robbed them of the opportunlty of placlng
before the declslon-maker forceful and focused submlsslons as tothe granting of the concesslon of supervised voluntary departure.
The questlon of voluntary departure was, 1t should noted, ralsed in the minute placed by the Department before
be
M r . McKinnon as follows:-
"At thls point In tlme, there appears to be no current request f o r voluntary departure on foot
from the appllcant. Nevertheless it may be
appropriate for you to take a declslon on thataspect In the l1ght o f the circumstances and
submlsslons made in thls case and relevant pollce consideratlons."
It is perfectly clear, ~n my view, that there was "no
current request" only because it had been not made plaln that the
Department was considering the maklng of fresh deportatlon
orders. I consider that there has been relevant procedural
unfalrness in this regard and I would therefore propose that the
deportatlon orders be quashed and that the matter be referred
back to the Delegate f o r further conslderatlon with a dlrectlon that he conslder submlsslons on behalf of the appellants that they be granted the concesslon of supervlsed voluntary departure rather than deportation. I should add that, for the reasons glven ~n the
Judgments of the learned Pres1dlng Judcje and v c r l ~ ~ g , J . I am
satisfled that no bias has becn demonstrated 3 : the part of the Department and its offlcers. For my part, therefore, I would propose that the appeal be allowed to the extent that I have indicated and vould also
propose that a declaration lye made that the detentlon of the appellants pursuant to the purported deportation order of the
20th August, 1986 be declared unlawful and that the deportatlon
order of the 8th February, 1987, be quashed and that the matter be remltted as ~ndicated above. I would dlsrnlss the cross-appeal and confirm the order of tne crlal ~udge. I would order that the respondents pay the costs of the cross-appeal and that each party
bear its own costs of the appeal. However, having regard to the
final outcome of this appeal and cross-appeal, I agree Lhat there
should be no order as to costs.
I certify that thls and the twenty preceding pages
are a true copy of the reasons for ~udgment
herein of his Eonour, Mr . Justlce I.1.L. roster. Dated: 4
Assoclate:
1