Honosutomo, H. v Gibbons, W.J

[1985] FCA 534

Re: HENDRIK HONOSUTOMO
And: WAYNE JULIAN GIBBONS
No. G300 of 1985

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.

HEARING

SYDNEY
#DATE 14:10:1985

ORDER

The application is dismissed with costs.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

JUDGE1

This is an amended application by Hendrik Honosutomo against Wayne Julian Gibbons who is the delegate of the Minister for Immigration and Ethnic Affairs seeking review of a decision that he be deported. The application is brought under the Administrative Decisions (Judicial Review) Act 1977 and seeks orders that, (1) the deportation order be quashed; (2) the applicant be freed from custody; and (3) the applicant be permitted to remain in Australia for a reasonable period, not exceeding two months, to allow him to make arrangements to depart voluntarily to the country of his choice.

1. Mr. Honosutomo, whose real name is Jonaton Paulus, arrived in Australia at Sydney airport on 27 July 1984. To secure entry he presented to an officer an Indonesian service passport issued in the name of Hendrik Honosutomo, which contained a visitor's visa for Australia. An entry permit was granted valid for six months. This was endorsed "Employment prohibited".

2. On 3 August 1984 the applicant was interviewed by officers of the Commonwealth/State joint task force on drug trafficking in connection with alleged offences relating to heroin importation and supply. He was subsequently arrested on that day and detained in custody. He appeared at Sydney District Court on 2 September 1985 on charges of conspiracy to import heroin. He was acquitted.

3. He was then interviewed by a departmental officer and taken into custody under section 38 of the Migration Act 1958 and held at the Immigration Detention Centre, Villawood. He appeared at St. James Court of Petty Sessions on 9 September 1985 on a charge of goods in custody of $16,379. The charge was withdrawn but the goods were seized pursuant to the Customs Act as proceeds from drug trafficking. Subsequently, but on a date later than the deportation order, a solicitor's letter was written forecasting proceedings to recover this money. In evidence also was a letter dated 20 September 1985 to the Department of Immigration and Ethnic Affairs from the Indonesian consul referring to the applicant's passport. It stated in part:
   
   

"It is confirmed that Mr. Paulus has been using

an unauthorised Indonesian service passport to

obtain the visa for Australia and it is advised

that he does not have any official status

within our government. Therefore the

Indonesian service passport number S317377 is

now considered as void Indonesian travel

document and it would be most appreciated if

you could please return it to this

consulate-general to enable us to issue for him

a one-journey travel document for his return to

Indonesia."

1. The applicant objects to deportation to Indonesia as he says that he fears government reprisals in that country. He says he seeks to go to Thailand and to do so voluntarily. He has a de facto spouse who is a Thai and who is in Australia. However, he has no travel documents enabling him to enter Thailand. It is common ground that the applicant is a prohibited non-citizen under paragraph 16(1)(b)(i)(A) of the Migration Act 1958. The order for deportation was signed by the respondent on 1 October 1985 and reasons were given to the applicant in a letter to his solicitors dated 4 October 1985.

2. The grounds stated in the applicant's amended application for relief are:
   
   1. That the making of the decision was an improper exercise of the power of the minister in that (a) irrelevant considerations were taken into account, namely that the applicant was alleged to be involved in heroin importation and passport frauds and so should be returned to Indonesia; and (b) there was a failure to take into account relevant considerations, namely
   
   

(i) that the applicant was acquitted of the charges relating to heroin importation;

(ii) that the applicant has not been charged nor

convicted in Australia or Indonesia of passport frauds;

(iii) that no request has been made for the

extradition to Indonesia of the applicant; and

(iv) that the applicant has civil litigation pending in Australia.

1. As to ground 1(a) there is nothing in the evidence which shows that the applicant was being deported having regard to the fact that he was alleged to have been involved in heroin importation and passport frauds and so should be returned to Indonesia. The history recited in the submission which was before the respondent when he made his decision to deport indicates that the decision to deport was based on the fact that the applicant was a prohibited non-citizen.

2. As to ground (b)(i) the fact that the applicant was acquitted of the charges relating to heroin importation was before the respondent when he made his decision, and there is nothing to suggest that the respondent failed to take it into account. As to ground (b)(ii) it is clear in the light of the submission which was before the respondent when he made his decision that the decision to deport was approached upon the basis that no charge or conviction had been made in Australia or Indonesia in respect of passport frauds against the applicant. There is nothing to suggest the respondent failed to take this into account.

3. As to ground (b)(iii) it is difficult to see how the fact that no request had been made for the extradition of the applicant to Indonesia could assist him in relation to deportation as a prohibited non-citizen. In any event the respondent did not proceed on any wrong or mistaken basis in this regard. As to ground (b)(iv) the respondent was aware at the time of making his decision of the seizure under the Customs Act of the money. There were no proceedings on foot at the time of the respondent's decision. The letter from the solicitors for the applicant threatening proceedings bears a date later than the deportation order. There is no evidence that the respondent failed to take any material matter into account in this regard.

4. In the result, the attack on the decision of the respondent to order deportation has not been made out. It is not necessary to consider whether, if the court had decided that the decision should be set aside, it would have had power under s.16 of the Judicial Review Act to make the far-reaching orders sought in the application that the applicant be freed from custody and that he be permitted to remain in Australia for a reasonable period not exceeding two months to allow him to make arrangements to depart voluntarily to the country of his choice.

5. The application is dismissed with costs.