Keenan, D.R. v Minister of State for Immigration Local Government & Ethnic Affairs

[1991] FCA 58

JUDGMENT NO. ........ ... .,-

m THE F E D E W COURT OF AUSTRALIA	) )
m SOUTH p)	No G8 of 1991

1

- 1

BETWEEN:	DARLENE ROWENA m	and
Applicants

m:  THE MIN-R OF S -

A

Respondent

HILL J	RECEIVED
SYDNEY	- 1 MAR 1991
24 JANUARY 1991	FEDERAL COURT OF

AUSTRALIA

a

Before the court is a notice of motion filed on 23 January 1991 and brought initially by Darlene Rowena Keenan ("the applicant"). During the course of the hearing of the notice of motion leave was sought to join Geoffrey Roland Bunker, the applicant 'S fiance and de facto husband. I gave

leave to join Bunker as a party to the proceedings

including the notice of motion.

October 1987 with a non-parole period of three years and three

The applicant is a citizen of New Zealand having been born there on 2 October 1954. She first arrived in Australia on 27 November 1980 together with her daughter and resided in Australia more or less continuously until January 1990. On 27 October 1987 Miss Keenan was convicted of a charge of conspiracy to import mainly cocaine and was sentenced to a term of imprisonment of eight years on 27

months to date from 27 October 1987. She was released on licence on 23 September 1989 and is presently supervised by the New South Wales Probation and Parole Service.

In January 1990 Miss Keenan's grandfather died and with the consent of the Probation and Parole service and through them the Attorney-General was given permission to travel to New Zealand for a short time for the funeral. It was a condition that she return to Australia on or before 29 January 1990. Miss Keenan was not apparently aware at the time that she left Australia that there was a need for her to apply for a visa to enable her to re-enter Australia as a permanent resident. On arrival at the airport Miss Keenan was ultimately given a border visa valid for 30 days. As the evidence etands at the moment it seems clear that Miss Keenan wae not aware of the legal effect of the border visa nor for that matter did it seem that M r Bunker understood the coneequences of it.

There seems little doubt that Miss Keenan verbally at least applied for permission to enter Australia permanently. It would seem that the delegate of the Minister,

Mr Lynch, who made the decision to deport Miss Keenan on 30

March 1990 did so purporting to act under the provisions of

8.60 of the w t i o n Act 1958 ("the Act").

Miss Keenan learned of the decision shortly afterwards on 3 April 1990 and was then notified that she was to be deported. She had, I should mention, in September 1989 been interviewed by an officer of the Department of Immigration, Local Government and Ethnic and Affairs about her criminal conviction and was, as a result of that interview, informed that she was liable for deportation because of the criminal conviction but that the department would first take into account all circumstances before a decision to deport was made.

This is particularly so because Miss Keenan,
notwithstanding her conviction, denied complicity in the

offence. Application was made in due time for a statement of

. . . .

reasons under a. 13 of the Adm inistrative Decisions IJudicid

Beview) Act 1977 ("the ADJR A c t " ) but for some reason there was a considerable delay on the part of the Minister in complying with the request, and indeed, reasons were not supplied until 19 December 1990. In the meantime an	undertaking was given that no action would be taken to execute	the deportation order until a period of four weeks expired
from the supply of the reasons.
At the expiration of the four week period, or at approximately the expiration of the four week period, namely on 14 January 1991, proceedings were commenced in this court by Miss Keenan applying to review the decision of Mr Lynch of 30 March 1990. The application contained a claim for interlocutory relief. An attempt was made by the solicitors for Miss Keenan to obtain an undertaking from the Minister that the order for deportation not be executed pending the hearing of the application. This undertaking was not forthcoming and in the result the applicant moved the court in the present motion for orders that proceedings under the deportation order be stayed pending the hearing of the application for review.
The matter came before me in chambers yesterday ex parte and I ordered that the time within which the notice of motion could be served, together with affidavits in support, be abridged until 2.00 pm yesterday and that the notice of motion be made returnable before me this morning. There is no dispute between the parties as to the proper test for me to apply in determining whether to stay the execution of the deportation order on an interlocutory basis.
It is accepted that the applicant must show that there is a serious issue to be tried and that the balance of convenience favours a stay pending hearing of the proceedings for review. Those two matters are not independent, but are rather interdependent. The applicants point to three matters which are said to raise an arguable issue. It is necessary for the purposes of this judgment to refer only to two of them.
The first submission of the applicants was that the Act contained two powers, two provisions pursuant to which the Minister might order the deportation of a person relevant to the present circumstances. The first power was contained in 6.55 of the Act. That section is concerned with a non-citizen who has been convicted in Australia of an offence for which the sentence was imprisonment for a period at least more than one year.
If an order be made under 6.55 a right of review is given to a person dissatisfied by the decision in 8.180. Section 180 itself is not directly applicable to Miss Keenan because she is not entitled to make an application by virtue of the fact that she is at the present time an illegal entrant by virtue of the fact that the border visa of 30 days has long since expired. However, Mr Bunker is entitled to make application to the Administrative Appeals Tribunal for review of a decision under 8.55 by virtue of being a person affected
by that decision.

Indeed, having regard to the decision of Gallop J in

. .

m: Gav S o U h L t v c r o w v m t e r of (1983) 5

ALD 289 it was conceded by the Minister that Mr Bunker was

entitled to make such an application.

The second power to order a deportation arises under s.60 of the Act. That section, which is in completely general

terms, provides as follows:

" ( 1 ) The Minister may, after considering

the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act .

(2) In spite of any other provision of

this act, a deportation order made under this section shall not be executed before the period of grace for the person has

ended. "

There is no power where an order for deportation is made under 8.60 for a person affected by that decision to appeal to the Administrative Appeals Tribunal.

The applicants, in their application and before me, submitted that there were two related issues that could be regarded as involving serious issues to be tried. These two issues are perhaps but two ways of putting the same thing. First, it is said that the Minister as a prerequisite to

exercising the power under 8.60 must take into account the	existence of the alternative power under 8.55, carrying with
it as it does a potential right of appeal, and consider the
effect upon the person the subject of the deportation order and or other persons in exercising the power under 8.60 rather than the power under 8.55. There is certainly an argument that such consideration should be given by a decision maker who exercises a power under 6.60 unless the proper construction of the Act is that cases involving deportation
are to be considered under 8.55 and cases involving other circumstances are to be considered under 88.59 or 60 as the
case may be. This argument would depend upon saying that 8.60 was a general provision and which had to be read subject to the provisions of 6.55.
If this subsidiary argument were correct then of course the power exercised under 8.60 would have been invalidly exercised. Counsel for the applicant indicated that he would propose to advise the applicant to amend the application as presently framed to raise this question of construction to the extent that it was not already raised.
The second way in which the argument was put arising out of the relationship between 86.55 and 66 was that a person affected by the decision was entitled to be heard by the Minister or his delegate prior to the exercise of the power under 8.60 and that the exercise of the decision in the
was a denial of natural justice. present case without affording her the opportunity to be heard It may well be that this is, as I have suggested, really another way of dealing with the point initially raised. It is sufficient to say that in my view the question of the relationlrhip between 88.55 and 60 and the manner in which a decision maker may go about determining whether to exercise the one or the other raise very serious questions indeed
sufficient to constitute for present purposes an arguable issue justifying the granting of a stay to the applicant.
The second matter upon which reliance was placed by the applicants was alleged failure on the part of the decision maker to consider lawfully the matters prescribed in reg.179 of the Migration Regulations being the matters which the decision maker is required to consider in making a deportation order under 8.60, he being not permitted to consider any other matter.

Reference was made in particular to para.(b) and

para. (d) of reg. 179. Paragraph (b) provides for there to be

considered by the decision maker:

"whether the person (i.e. the prospective deportee) has been given in accordance with these Regulations a notice of the intention to refer to the Minister the question of the exercise of the power:

(i) to order the deportation of the

person; or

(ii) to require the person to leave
Australia;

as the case requires."

Paragraph (d) requires the decision maker to

consider:

"Whether the person:

(1) is an applicant for entry permit; or

(if) has applied to a review authority

following a decision by the Minister

refusing to grant an entry permit . "

Only the first of these two regulations need be

noted here.

Regulation 179(b) refers to the relevant notice as being one in accordance with the regulations. It is probably an oversight that the regulations contain no reference to any form of notice of the kind referred to in reg.l79(b) other than in that regulation itself.

So far as appears from the 8.13 statement supplied under s. 13 of the ADJR Act which is the only matter tendered before me at this stage, the decision maker in para.22 merely stated that he had considered whether Miss Keenan had been given the notice mentioned in para. (b) of the reg.179 and	concluded	that :
" . . .whilst she did not receive any formal
notice, she was made aware of her liabilf ty to deportation. "

There is I think an arguable issue as to the proper construction of reg.l79(b). On one view of the matter it may be sufficient if the decision maker merely considers whether a notice of the kind has been given and does nothing else. That

would seem to be a rather unlikely interpretation as at the very least one would assume that he would have to give some consideration to the effect of the giving or failing to give as the case may be of the notice.

Another view is that the regulation should be construed in such a way that the decision maker should not exercise the power of deportation unless a notice of the kind has been given.

Whichever of those two views is correct it would certainly seem to be the case that the relevant notice is one which indicates that there has been an intention to actually refer the question of the exercise of the power to deport a person to the Minister. A notice that deportation was merely

under consideration would clearly not be a notice of the

relevant kind.

One thing would seem to be clear and that is that the purpose of there being a notice of the kind referred to in reg.l79(b) is to permit the prospective deportee to exercise the choice of leaving Australia at his or her own volition or remaining and taking the chance of deportation. The critical matter involved in this choice is that a person who is deported may not apply for re-entry to Australia for a period of five ( 5 ) years.

On the evidence as it presently stands before me it is arguable that the decision maker did not properly take into account the question that he was required to take into account under reg.l79(b). Whether this matter on its own would have been sufficient to have persuaded me to exercise the power to stay the deportation order need not be considered. Suffice to say that together with the issue raised by the applicant as to the relationship of 88.55 and 60 there is a very substantial issue to be heard in the ultimate proceedings.

The balance of convenience in the present case clearly, in my opinion, is in favour of the applicant for a number of reasons. First, her daughter is living in Australia so that it would be necessary not only for Miss Keenan to leave the country but effectively for her daughter and possibly also for Mr Bunker.

Secondly, if the order were executed or valid Miss Keenan could not apply for re-entry into Australia for a

period of five years.

Thirdly, deportation to New Zealand would have some particular hardship to Miss Keenan having regard to circumstances involving her prior husband.

Deportation of course would not render impossible her ability to continue with the present application. However, it would clearly make that course more difficult and probably a great deal more expensive. In these circumstances I propose to grant to the applicants a stay of the deportation order made on 30 March 1990 until further order.

It was submitted on behalf of the respondent that reporting conditions should be imposed by the court as a condition of granting the stay. The present circumstances seem to me not to warrant the imposition of reporting conditions. Firstly, the applicant has been in Australia virtually continuously for over 10 years. Secondly, the respondent was prepared to leave the matter without any conditions from the making of the deportation order until the expiry of the ultimate undertaking not to execute it, a period of some eight months.

Thirdly, the applicant is in any event required to

report to the Probation and Parole office so that there seems

to be no real reason why she should be required as well to

report on a periodical basis to an officer of the department.

However I would require, as a condition of granting the stay, an undertaking on the part of the applicants to notify the Minister, or some person nominated by the Minister, in the event that the applicants should change their place of address.

To enable the matter to be brought quickly for a

final hearing I give the following directions:

(1) I direct the applicants to file an amended application on

or before 8 February;

(2) I direct the applicants to file any affidavits upon which they wish to rely in support of the application on or before 15 February;

(3) I direct the respondent to file an affidavit, by the decision maker, setting out the material that was before him/her at the time of making his/her decision including copies of that material, on or before 28 February 1991.

I etand the matter over for further directions on 1 March.

I certify that this and the
preceding twelve (12) pages

are a true copy of the Ex Tempore

Reasons for Judgment herein of his

Honour Mr Justice Hill. - .

Aesociate:

Counsel and Solicitors	M.B. Smith instructed by
for Applicant:	Craddock Murray and Neumann
Solicitors	Australian Government Solicitor
for Respondent:
Dates of Hearing:	24 January 1991
Date Judgment Delivered:	24 January 1991