Lebanese Moslem Association v Minister for Immigration & Ethnic Affairs

Re: LEBANESE MOSLEM ASSOCIATION; SOHER GABER HAMED and SHEIKH TAJ-EL-DIN
HAMED
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NSW G48 of 1986
Administrative Law; Migration; Human Rights and Constitutional Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Administrative Law - natural justice - relevant considerations - unreasonableness - unresolved allegations - deportation.

Migration - deportation of religious leader - relevance of constitutional guarantee.

Human Rights - failure to take Act into account - whether vitiating.

Constitutional Law - guarantee of religous freedom - purpose of deportation - whose purpose relevant - whether relevant in deciding to deport religious leader.

Administrative Decisions (Judicial Review) Act 1977, s.13

Judiciary Act, s.39B

The Constituion of the Commonwealth of Australia, s.116

HEARING

SYDNEY

#DATE 25:7:1986

Counsel for the applicants: Mr. G. Downes Q.C. with Dr. G. Flick instructed by John Sarroff & Co.

Counsel for the respondent: Mr. B. Tamberlin Q.C. with Mr. C. Stevens instructed by the Australian Government Solicitor.

ORDER

The decision of the respondent dated 22 June, 1986 refusing to grant permanent resident status to the second and third applicants be set aside;

The decision of the respondent dated 22 June, 1986 to order the deportation of the second and third applicants be set aside;

The matter be remitted to the respondent for reconsideration having regard to these reasons.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

These are two applications challenging decisions of the respondent Minister made under the Migration Act. The first application, in its amended form, seeks to review firstly a decision dated 29 July 1985; that appears to have been overtaken by subsequent events and is conceded no longer to be relevant. The same application asks for an order reviewing the respondent's decision dated 31 January 1986 requiring the second and third applicants, "together with their children who are not Australian citizens", to leave Australia before 28 February 1986 and refusing to grant the second and third applicants permanent resident status.

The second and third applicants have not left Australia in accordance with the decision mentioned, nor have their children done so; when the case was being heard, I was informed by counsel that the respondent would not seek to enforce his decisions pending the determination of the matter.
The second application seeks to review the respondent's decision dated 22 June 1986 refusing to grant permanent resident status to the second and third applicants, and a further decision of the respondent of the same date to order their deportation.
Each application is brought under the Administrative Decisions (Judicial Review) Act and also under s.39B of the Judiciary Act, which gives this Court jurisdiction "with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against any officer or officers of the Commonwealth". It appears that the provisions of s.39B are invoked because injunctive relief is sought and because a question of inconsistency with the Constitution was raised; the appropriate notices were given.
The matter was tried wholly on affidavit and no deponent was cross-examined. Counsel for the applicants argued that there should be made certain factual inferences and findings in respect of matters as to which it is difficult to reach a confident conclusion, partly because of the absence of any oral evidence. However, in large part, the issues in the case depend upon an analysis of the within reasons given by the respondent for the decisions in question, under s.13 of the Judicial Review Act.
The first applicant is an association of some thousands of Lebanese Moslems who are the employers of the third applicant; no point was taken as to their standing. The second applicant is the wife of the third. For simplicity I shall call the first applicant the association, and the third applicant the sheikh.
The sheikh was brought to Australia in 1982 to take up a post as the Imam at the Lakemba Mosque, and has occupied it ever since. He came with his wife and two children under a temporary entry permit which was subsequently extended from time to time, although with significant gaps. His presence in this country has provoked substantial opposition from other Lebanese groups, including a faction associated with his own mosque, and submissions, as well as counter-submissions, have persistently been made to the respondent and his predecessors in office with respect to the question whether the sheikh should be permitted to stay or required to leave. It is said that the differences of view may be produced or enhanced by long-standing animosity between, for example, Lebanese Maronite Christians and Lebanese Moslems. Those who have supported the sheikh have, from time to time, urged that he be given permanent residency status. That has, of course, never occurred. Ultimately, the respondent "grasped the nettle", to use an expression which appears in the papers, and decided in June 1985 that the sheikh should go.
The sheikh was born and educated in Egypt, but it is events and divisions in Lebanon rather than his native land which the present dispute reflects. Lebanon, which has had a sort of independence only since the second world war, has had difficulties arising, in part, as is well known, out of disputes between various religious groups. There are a number of significant Christian groups of whom the most prominent are the Maronites, the Greek Catholics and the Armenian Catholics. Important Moslem groups in Lebanon, as elsewhere, are the Shi'ites and Sunnites, differences between whom are reflected in the disputes mentioned before me. There is a long history of bitter struggle between the major religious groups which has continued to the present day.
In 1975, civil war began in Lebanon, with much involvement by other countries. After the termination of open war in 1976, clashes continued. In 1978, Israel invaded South Lebanon and took control of the border region, and it invaded again in 1982. Factional fighting continued, with some respites, throughout this period and there were, in particular, serious clashes between Moslem groups and Maronites. Such matters have apparently been dealt with by the sheikh in addresses to his adherents.
These events, of course, have had an influence upon this country; from the inception of the civil war, substantial numbers of Lebanese came here, mainly Moslems. The refugees have brought with them the political and ideological divisions of the war, have formed organisations and have sent money home for various purposes connected with the conflicts there.
Looking broadly at the issue of the sheikh's expulsion, it could be said to be an indirect consequence of the animosity between the various Lebanese religious groups in this country. The history of the matter, so far as revealed by the papers before me, is, however, rather more complex than that and requires to be set out in some detail.
The sheikh lived in the Middle East until he came to Australia, arriving here on 7 March 1982. The Australian Federation of Islamic Councils (A.F.I.C.), which appears to be the most important Moslem organisation, invited him to this country to conduct religious services, for three months initially, at the Lakemba Mosque. The position of Imam at that mosque had become vacant as a result of the dismissal of a Sheikh Zeidan, who had previously held it. The new Imam was given a temporary entry permit and then a further such permit up to the end of 1982. During that year, his wife and two children joined him in this country.
According to departmental documents, the former incumbent, Sheikh Zeidan, despite an injunction restraining him from doing so, interfered with prayer meetings at the mosque. Thus, very early in the Sheikh's stay, there appeared the first important sign of the trouble which has continued since. About the time of expiration of the first temporary entry permit, a number of members of the association wrote to the department asking that a permanent visa not be granted to the sheikh. They made allegations of some importance against him, claiming that he had been associated with extremist, indeed terrorist, elements. However, there also appeared early evidence that the sheikh had attracted considerable support among members of the association. In particular, that may be deduced from the report of results of an election of the council of the association which took place on 6 June 1982. That sign of support, no doubt, assisted towards the obtaining of the permit by the sheikh allowing him to remain until the end of 1982. However, in July further formal accusations were made to the department against the sheikh; it was suggested that he preached violence in the cause of fundamentalist Islamic nations, that he was believed to be a member of the "Soldiers of God", a group said to be involved in the assassination of President Sudat of Egypt, and had verbally attacked Australian women. It was said that in July the sheikh made a speech at the Lakemba Mosque of a highly political kind attacking the intervention in Lebanon of "dummies" of Russia and the United States, and speaking of a conspiracy to "eliminate the Islamic presence in Lebanon". Hearers were urged, according to the allegations made, to sacrifice themselves in the cause of Islam.
A little later, the department took steps to find out what the view of A.S.I.O. was and continued to pursue that line of enquiry from time to time thereafter. It seems that the department's view was then as follows:

"Tension within Lebanese Community as a result of Sheik Tajjudin's Ramadan sermon, his fundamentalist position in the community and Dolly Karzim's response on 2SER-FM. The immediate issues were contained by separate discussions with different groups and with a joint meeting of religious leaders held in the Commonwealth Centre. There are however still strong undercurrents and continuing problems in this area can be expected. We need to develop a view urgently on whether we would agree to extend Sheik Tajjudin's temporary entry permit beyond 31 Dec 82."

As the date of expiry of the sheikh's second temporary entry permit approached, the question of its extension was, of course, agitated. A.F.I.C. wrote asking for a two-year extension, but the department appeared not to be enthusiastic and continued to press A.S.I.O. for a view. Supporters of Sheikh Zeidan asked for the sheikh's expulsion. In the end, the then Minister gave a twelve-month extension.
The sheikh went overseas for about two months at the end of August 1983, and about that time the departmental documents show there was reference to getting a "comprehensive report" from A.S.I.O. Although there had been some discussion during the year 1983 about his status, the sheikh's then current temporary entry permit was apparently allowed to expire on 31 December, without any further extension having been decided upon. In January 1984, the then Minister determined "subject to you and your family meeting the normal health and character requirements", to allow him to stay for a further twelve months. By December 1984, the departmental papers showed that A.S.I.O. had indicated "that they no longer believe that the Imam represented a risk to the community of causing or promoting violence". That information came to hand about the time the respondent took over his portfolio. He decided, on 21 January 1985, to allow the sheikh to remain for a further six months and representatives of the department met the sheikh and others at the mosque on 7 February to tell him about the decision. They also recommended that "the Imam should pay attention to the manner through which his beliefs and values are presented so as not to be seen as offensive to other sections of the community ...". The sheikh declined to accept the six-month extension.
The following day, the Imam made a rather provocative speech at the mosque. There was some discussion at the hearing about the accuracy of the translation, but not too much should be made of this problem, since it appears to have been open to the applicants to arrange to have a further translation done if they did not like the department's version. The sheikh expressed himself in favour of the sacrifices made by young people "assured of paradise", who had made suicide bombing raids on American and Israeli establishments in Lebanon. He said, according to a departmental translation:

"Victory is near, but we must merit it if we want to assure the greatness of the Moslem nation ...

Oh those who believe in God, the five pillars of Islam and the Prophet, faithfulness should not be for a land or a law which is non-Islamic and those who do not share these principles are not for us but for them ..."

Understandably, senior counsel for the respondent relied upon this utterance as tending to justify the view that the sheikh has been a focal point of dissension. However, for some reason the June 1986 decisions were apparently made without reliance on the speech.
In March 1985, the respondent met with members of a delegation who criticized the sheikh and opposed his continued presence in the country, and also with a delegation urging a contrary view. An important point made in the respondent's discussions with the latter group was the sheikh's refusal to accept the proferred six-month extension and his refusal to submit his passport to enable the issue of a further temporary entry permit covering the six-month period (that is, to 30 June 1985).
On 20 May 1985, that matter was referred to in a note written by the department's secretary, Mr. W.A. McKinnon, which note was said to have been erroneously dated. It urged the respondent against adopting a temporary solution, then concluded:

"I would prefer to use the obstinate refusal of a TEP extension as a pretext for refusing permanent residence now.

The deliberate flouting of migration law does permit you to adopt this attitude. To the refusal could be attached a renewal of the offer of a TEP and, if this is not taken up within a limited period, you would require the Imam to depart."

The respondent, on 18 June, wrote the following note at the foot of the document prepared by Mr. McKinnon:

"Agreed -

His refusal of the TEP extension causes me, among other reasons, to refuse permanent residence.

I will not condone the flouting of our migration law.

However, I shall not be harsh and require his immediate departure.

He may have a three month TEP until the end of September 1985, by which time I shall expect him to have left and the Mosque Community to have had time to replace him."

The respondent either then, or at some other time, added two further notes:

"If he does not accept a TEP on this occasion within one month, then he must be required to leave within one more month.

P.S. Can we move hastily to arrange a visit from the Grand Mufti from Beirut 'as our guest'."

The respondent did not give evidence. His senior counsel argued with, as it seems to me, some cogency that performance of his Ministerial duties would be impractical if he were to spend substantial amounts of time in courts being cross-examined about his decisions. It may be thought that the argument just mentioned justifies a departure from the ordinary principle laid down in Jones v. Dunkel 101 CLR 298 as to the results of failing to give evidence. On the other hand, in the absence of their author, it is hard to resist drawing from the notes just quoted two inferences which may assist the applicants. The first is that he accepted that reliance on the failure to produce the passport was a mere "pretext", and although no doubt irritating, not in truth the reason for his decision. The second is that the predominant reason for the decision was that the respondent thought it desirable that the sheikh be replaced in his position as Imam by a person more acceptable to the respondent; the reference to the Grand Mufti is explained by the fact that he was thought likely to be able to play a role in obtaining a new incumbent.
I have paid some attention to the events of June 1985 because it was then, for the first time, that the respondent, taking a step which his predecessors had eschewed, decided that the sheikh should leave - a view to which he has adhered since, although with some variations as to the time of departure.
On 29 July 1985, the respondent wrote a letter to the sheikh referring to the latter's refusal to accept the decision that he be granted a six-month extension and remarking, "I cannot condone such flouting of Australia's migration law." After further discussing the case, the respondent informed the sheikh that "you may remain until the end of September 1985, by which time I expect the Community to have had time to arrange a replacement Imam". Two days later, the sheikh wrote to say that the suggestion that he had refused to produce his passport was "entirely incorrect and ... obviously a misunderstanding". The respondent was clearly entitled to reject that assertion, in view of the reaction to the allegation when first made on 7 February 1985 and the explanation given by A.F.I.C. in a letter to the respondent dated 5 August 1985. In that letter, the president of A.F.I.C. sought a reconsideration of the respondent's decision.
On 2 September 1985, the respondent wrote again to the sheikh, noting that he had failed to comply with a request, made by the department, to present evidence of his arrangements to depart Australia. The respondent went on:

"Further I understand that you have involved the media in the issue and sought legal advice on the prospects of challenging my decision in the courts. For these reasons I would not regard my earlier offer of a temporary entry permit to regularise your status pending departure as still valid."

Although no point was taken about it, I permit myself the observation that using the taking of legal advice by the person the subject of an adverse decision as a reason for making a further adverse one is not an action calculated to increase one's confidence in the propriety of subsequent decisions.
In the same letter, the respondent informed the sheikh that he was prepared to consider the offer of a further temporary entry permit valid for six months, subject to the sheikh's undertaking to depart Australia voluntarily by 28 February 1986. In default of agreement, the respondent said he had no alternative but to take "formal steps which would enforce your departure from Australia by 30 September 1985". There followed a rather odd course of correspondence. The sheikh wrote back on 12 September 1985 saying he was prepared to leave the country by 28 February 1986 "if you kindly grant me this extension on my passport in confidence so that I can re-enter Australia after a certain period you fix as you deem suitable". On the same day, the president of A.F.I.C. telexed the head of the department, Mr. McKinnon, asking for "one variation in proposed arrangement that the extension be regarded as probationary period which if satisfactory would enable the sheikh Al Hilaly to apply for further extensions/resident status". The respondent replied confirming his previous decision, and saying that he interpreted the sheikh's letter as an acceptance of his offer which, of course, it plainly was not. As counsel appeared to be agreed, in legal terms it was a counter-offer. However, the sheikh replied promptly, saying, "The interpretation expressed in your letter is agreed to by me." Were the case one depending on the principles of the law of contract, the sheikh's agreement to the "interpretation" of his counter-offer as an acceptance of the respondent's offer would, I think, be taken to bind the party in the terms proposed by the respondent. Looking at the correspondence more broadly, it still appears to be of substantial assistance to the respondent's case so far as the question of reasonableness, discussed below, is concerned: in substance, the sheikh agreed to go by the end of February this year.

That was not, of course, what happened. On 20 December 1985, the respondent wrote to the sheikh referring to his agreement to leave on or before 28 February 1986, and subsequent discussion, and informing him, in effect, that he was willing to reconsider the position. The sheikh responded with a further long submission accompanied by supporting documents. On 30 January, 1986, Mr. McKinnon wrote for the respondent a recommendation that he refuse to grant the sheikh and his wife permanent resident status, to which the respondent agreed on the same day. That decision is the subject of the first application referred to at the beginning of this judgment, and reasons for it under s.13 of the Judicial Review Act were furnished on 20 February 1986. They relied principally upon what is referred to below as the "focal point" conclusion, but I do not think it necessary to analyse them in detail. This is because the ultimate decision of the respondent, reaffirming that of January and adding a deportation order, seems to me entirely to have supplanted the earlier one. This is not to say that the first set of reasons is to be left out of account for all purposes; however, there would seem to be no point in requiring a reconsideration of the January decisions if the June decisions still stood, because the latter require deportation. The Court should not interfere with the January decision even if it is defective in some way, if the current, operative, decision is good.
On 26 February 1986, the applicants made the first application and affidavits in support of it were filed then, further affidavits being filed in March. These affidavits denied, not baldly but in detail, most of what had been urged against the sheikh in submissions to the respondent and his predecessors.
On 5 May 1986, the acting secretary of the department caused to be delivered to the solicitors for the applicants a letter to the effect that the Minister proposed to reconsider the whole matter, for reasons said to include the necessity of preparing the application to this Court (the hearing of which had been set down to begin on Monday, 23 June). The sheikh did not respond until Friday, 20 June, when he sent a long submission with supporting documents, together with a further short submission. On the same day, Mr. McKinnon prepared a recommendation along similar lines to that which had produced the January decision, and in accordance with it the respondent, on 22 June, revoked the January decision, refused to grant permanent resident status to the sheikh and his wife, and signed deportation orders. The terms of this recommendation are further mentioned below.
As the matter was elaborately argued, and at length, I have thought it convenient to deal with the principal submissions made on behalf of the applicants, including those having, in my view, less substance. Some may be fairly easily disposed of; others raise questions which have caused me difficulty.

Natural Justice
It was contended for the applicants that there was evidence of predetermination and bias. Although a number of documents said to manifest this were referred to, I think only two points need to be dealt with under this heading.
The first argument was that the very speed with which the submission of Friday, 20 June, 1986 was dealt with showed that the respondent could not have considered it properly. It was pointed out that Mr. McKinnon made his recommendation on the same date as is borne by the long submission made by the sheikh.
The point fails on the facts. It was by no means impossible that the respondent and Mr. McKinnon, each of whom was very familiar with the matter from previous contact with it, properly to reconsider the question, in the light of the further submission, within the space of a day - indeed, I should have thought, within an hour or two. It was not the fault of those people that the submission arrived on the last business day before the hearing was due to commence. It was that which created, as no doubt the respondent thought, a desirability of giving up part of his weekend to the task.
A more substantial submission was that the respondent had new material placed before him in June, but made no further enquiries and did not call for departmental documents relevant to the new material. Although this contention might have had some weight of its own if the respondent had acted on the basis of making findings of misconduct against the sheikh of the kind that were in issue in Kioa v. West (1985) 60 ALJR 113, the fate of the contention depends on the validity of the "focal point" argument which is dealt with below. In the way in which the respondent approached the problem, it was simply not necessary to reach a conclusion whether the allegations against the sheikh, or his refutations of them, were correct. Insofar as the submission to the respondent of 20 June contained other material (for example, reference to his community service), I cannot see that further enquiry was called for.
It should be added that a separate attack under the natural justice heading was made on the January decision, but for the reason given above, I do not propose to discuss it: cf. the approach of the Privy Council in Calvin v. Carr (1980) AC 574.
Apart from what is involved in the "focal point" aspect, the attack on the decision on the basis of breach of the rules of natural justice is inherently weak: by the time the June decisions came to be made, the applicants had had the benefit of the respondent's thoughts about the matter in considerable detail for months, in the form of the reasons for the January decisions, from which the June reasons departed in no way which could have surprised the applicants. They had an unusually ample opportunity to know what was in the respondent's mind and ample time to place before him whatever material they thought might persuade him.

Unreasonableness
It was said that the decision was unreasonable in the Wednesbury Corporation case (1948) 1 KB 223 sense.
There is authority for the view that the respondent's power extends to the "arbitrary exclusion of a person who has entered a country ... for a temporary stay only": Ex Parte De Braic (1971) 45 ALJR 284 at 285. But although that view was apparently held by at least a majority of the Court which decided Ex Parte De Braic, it is not easy to reconcile it with more modern authority, and in particular the decision of the High Court in Kioa (above). Nevertheless, the trend of the cases is in favour of the view that the respondent's discretion to deport, which is subject to no express limit in the statute, is very wide indeed. Leaving aside the "focal point" argument, the point made under this heading was, in essence, just that mentioned in De Braic's case, namely that the decision to get rid of the sheikh was quite arbitrary, being comparable with deporting someone because he had red hair. It was urged that, reading the reasons as a whole, what underlay the decisions attacked was the bare fact of occupation by the sheikh of his post as Imam of the Lakemba Mosque.
The reasons for the decisions are too lengthy to set out in full, and I shall attempt to summarise their main features. They say that numerous representations have been received both for and against the sheikh's continued presence in this country, including a petition presented by Senator Button to the Senate in favour of the sheikh containing 7,429 signatures, and representations of A.F.I.C. and the association. They refer to the fact that the sheikh and his wife have two children born here, in 1983 and 1985 respectively, who are both Australian citizens by birth, that one of the children suffers from a shoulder condition which requires intensive medical treatment, which the sheikh might be unable to afford to pay for outside Australia, and that the sheikh claims to have support of the overwhelming majority of Moslems.
The reasons go on to say that the sheikh and his wife are prohibited non-citizens, but that they could be made eligible for a grant of permanent residence by the grant of further temporary entry permits under par.6A(1)(d) of the Migration Act. They refer to the special provisions in a departmental policy in favour of religious leaders and assert that the sheikh has the support of the association and a large number of members, as well as that of A.F.I.C. They say that the sheikh's position is "clearly a genuine full-time position" and that "the allegations against the (sheikh) are not supported by factual evidence". The reasons go on, in part:

"Whatever may be the factual position with respect to the allegations made against the applicant, it is undeniable that there are divisions within the Lebanese community in Sydney, evidenced by the fact that strong allegations are made against the applicant and equally strongly denied by his supporters. The applicant's presence appears to exacerbate deep seated passions within that community ... However, it is not clear to what extent divisions are caused by the applicant himself or the over-reactions of his opponents, or whether the applicant merely serves as a focal point for pre-existing tensions within the community ... Notwithstanding the applicant's assertions to the contrary, you may consider that he is a focal point for continuing division and conflict within the Lebanese community and within the Australian community as a whole ... It is not known whether any replacement (Imam) would be able to overcome the divisions which presently exist in the Lebanese community."

The reasons then go on to refer, in an inexceptionable way, to the position of the children, and in particular the Australian-born children and the requirement of one of them for medical treatment. They then reiterate the "focal point" argument and, after brief reference to the sheikh's wife, make the recommendation referred to above.
Although I have found no authority precisely in point, I cannot accept the submission that the decision so reached is bad on the Wednesbury principle. It can hardly be disputed that the question whether the presence of a would-be permanent resident appears to contribute to tensions within the community is a relevant consideration in determining whether to let such a person stay. It appears to me that it is for the respondent, and not this Court, to determine whether a relevant consideration, tending against the sheikh and his wife, is of sufficient weight to justify such decisions as have been made.
To return to the precise submission put on behalf of the applicant, there is no doubt that the respondent's decision cannot be equated to one based merely upon some irrelevant personal characteristic such as hair colour; it was based on the existence of dissension created by the sheikh's presence - dissension whose existence was amply evidenced.
The unreasonableness argument, therefore, fails.

Human Rights Commission Act
It was submitted on the authority of Smithers J.'s reasons in Sezdirmezoglu v. The Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 575 that the decisions are vitiated for the respondent's failure to take into account various articles of the International Covenant on Civil and Political Rights. In the later case of Kaufusi v. Minister (unreported, 30 September 1985), the same judge dealt with the problem after the decision of the Full Court in Kioa, but before that of the High Court. His Honour then appeared to recognise that the Full Court's decision did not leave it open to him to take into account the terms of the Human Rights Commission Act as such.
It is unnecessary, however, to pursue that point because it seems to me clear enough that a majority of the High Court in Kioa (above) has, on this aspect, taken a view adverse to the applicants. The reasons of those three judges included the following:

"There was no legal obligation on the Minister's delegate to ensure that his decision conformed with the Convenant or the Declaration." (Gibbs C.J. p.121 of 60 ALJR.)

"Although Mr. Merkel sought to strengthen his submission in relation to Elvina by reference to the Declaration of the Rights of the Child, I do not think that the provisions of that Declaration take the matter any further. Even if the Declaration had the force of municipal law in Australia, which it does not, no conflict has been shown between its provisions and the decision. I agree with what is said on this subject by Northrop and Wilcox JJ. in the decision under appeal." (Wilson J. at p.136.)

"The Human Rights Commission Act does not provide that the repositories of statutory power are bound to take the conventions into account ... the exercise of a statutory power is not liable to be set aside merely because the repository of the power does not take into account a matter which he was entitled, but not bound, to take into account ..." (Brennan J. at p.147.)

This is not to say that the kinds of matters with which the Covenants in question deal may safely be ignored by a decision-maker. Here, the practical result of the sheikh's deportation would be likely to be that the two children born in this country would leave with their parents, failing which the family would be broken up. It could hardly be pretended that the respondent failed to notice that; it was brought home to him by a threat by the sheikh to bestow responsibility for the two children in question on the respondent. The "general humanitarian principles", to use the expression adopted by the Full Court in Kioa's case (1984) 4 FCR 40 at p.53, which are embodied in the relevant Covenants, were not ignored. As to the Covenants themselves, it seems clear from the Kioa case that the respondent was not obliged to take them, or any provision of them, specifically into account and the submission to the contrary must be rejected.

Non-resolution of Issues - the "Focal Point" Argument
A central point in the case is the applicants' submission that the respondent did not resolve the question of the correctness of the allegations against the sheikh. It was said to be an insufficient basis for decision merely to note the existence of allegations of unsuitable conduct and note that those allegations are disputed without, in the end, determining whether they are true.
It has to be conceded that it is not very clear what conclusions the respondent adopted. Although the reasons say that the respondent accepted the findings of fact in the submission made to him, on the critical points the document is somewhat obscure. For example, par.24 says the allegations against the sheikh are "not supported by factual evidence" and "you may choose to disregard them". Although conscious of the desirability of not being over-captious in approaching s.13 reasons, I find these expressions unhelpful. I am not sure whether the respondent, by adopting the "findings", should be taken to have accepted the absence of evidence to support the allegations against the sheikh. It is also not certain whether the respondent should be taken to have chosen to disregard the allegations, which is what the submission said he might choose to do. On the whole, it seems fairly clear that he did not disregard them, but took them into account as evidencing the sheikh's tendency to excite conflict. It was contended, however, that it is unfair to use against a prospective deportee allegations which are neither investigated nor proven.
The applicants' argument on this point gains some support, by implication, from the High Court's decision in Kioa. There the High Court adopted the view that, at least in some circumstances, there may be an obligation on the respondent to provide to an illegal immigrant an opportunity to answer allegations relevant to the question whether he should be deported. There would not seem to be a great deal of point in that process if, in the end, the respondent is free to say: "Now I have the answers made to the allegations against you, I will not determine their correctness; I will deport you whether they are true or not." The existence of an obligation to solicit answers to allegations against a prospective deportee leads to no increase of justice if the answers given fall on deaf ears.
The respondent's argument against the point just mentioned had two aspects. The first was that it would have been impracticable, perhaps impossible, to determine the correctness of the allegations. It was argued that they involved a complex of social and religious problems to which there was, perhaps, no "correct" answer. An example taken was the allegation that the sheikh adopts fundamentalist stances, an enquiry into which would necessitate a preliminary survey as to what group of doctrines should properly be regarded as fundamentalist.
The response just mentioned is not a truly adequate one. The most important questions concerning the sheikh's conduct were able to be looked into in an objective way without, I should have thought, a great deal more trouble than was in fact expended on the whole matter. For example, one of the principal questions was simply what the sheikh used to say to those under his spiritual care at the mosque and elsewhere; information on that subject should not, in the circumstances, have been hard to obtain, and some was in fact obtained. Again, it was said in defence of the sheikh that he had performed important and valuable social duties with Moslem organisations, and submissions made to that effect were capable of rational investigation. It is true that a quantity of documents seems to have been amassed by the department in connection with the matter, but much of it is mere propaganda rather than hard evidence for or against the sheikh.
The second and more cogent answer made on behalf of the respondent to the argument mentioned above, namely that the respondent did not attempt to determine the correctness of the allegations against the sheikh, was that the basis on which the respondent acted was essentially that, whether through his own fault or otherwise, the sheikh's presence brought trouble. This was what was described during the hearing as the "focal point" argument. The contention was that, whether or not the sheikh's behaviour, taken all in all, was such as to merit condemnation, it seemed to have attracted a great deal of criticism from Lebanese in New South Wales and to have contributed to the development or preservation of animosity between Lebanese groups. The contention was that it may be a rational course for the respondent, in the interests of the community, to keep out or put out a religious leader who provokes such a response; by way of analogy, reference was made to the likelihood of the government of the United Kingdom discouraging a papal visit to Northern Ireland.
Stating in a more general way what was put, it was that it may be a proper and lawful course to take into account allegations against a prospective deportee as telling against him, whether they be true or false, if they are but an aspect of discontent among groups within the community caused by his presence and activities. From the point of view of compliance with the requirements of natural justice, a danger can be seen in this doctrine. An orchestrated campaign of vigorous but false criticism (which, indeed, was what the applicants alleged occurred in this case) can, if the principle be accepted, bring about an unchallengable deportation. It appears to me, nevertheless, that the principle put forward on behalf of the respondent can stand with the doctrine of Kioa, if rather awkwardly so. I do not think it is a necessary corollary to that decision that the respondent must ignore allegations against a prospective deportee unless he investigates them and finds them to be true, and hold that he may, in some circumstances, lawfully take account of them as part of a pattern of behaviour within the community of an undesirable kind, tending to suggest that deportation would suit the interests of this country. I do not think the discretion given to the respondent, which is on the face of the statute quite unfettered, must, as a result of the Kioa decision, be taken to be subject to such a severe limitation as acceptance of the applicants' arguments would entail.

The conclusion, then, on this group of submissions is that while the respondent could, by further investigation, probably have come to a conclusion as to the correctness of the allegations against the sheikh, his failure to do so did not vitiate his decisions; he was entitled to take the presence of these allegations into account as an element of the dissension which the sheikh's presence, on the respondent's view, had provoked.

Section 116 of Constitution
The applicants made two submissions based on s.116 of the Constitution, which reads as follows:

"The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."

The applicants relied on the words "for prohibiting the free exercise of any religion".

The section may be able to be described as the one exception to the proposition that "the Australian Constitution differs from its American counterpart in the absence of a Bill of Rights designed to protect the people from legislative interference with their 'fundamental rights'" (Wynes: "Legislative Executive and Judicial Powers in Australia" 5th Ed. p.133); see also Seervai, "Constitutional Law of India" p.56. In view of its status, it is convenient to call the provision simply "the guarantee".
The guarantee has resulted in only a small amount of litigation, so far as the reported cases show, and in no instance has it been held that governmental action was invalidated by it. Nevertheless, the High Court's recent approach has not been such as to encourage the thought that the guarantee is illusory, as that in s.80 has proved to be, nor to provide any easy path to the conclusion that the guarantee is irrelevant to the case before me.
Some propositions have become clear. One is that the guarantee applies in an overriding way to all exercises of Commonwealth power under ss.51 and 52. That point is so clear from the terms of the section itself, and the decisions on it, as not to need elaboration: Adelaide Company of Jehovah's Witnesses Inc. v. Commonwealth (1943) 67 CLR 116 at 123, 156; Attorney-General for Victoria (ex rel. Black) v. Commonwealth 146 CLR 559 at 592, 593, 618, 649. But it was argued on behalf of the respondent that the power to control immigration is unaffected by the guarantee: if the respondent's decisions were made on that basis, that might be a vitiating factor - a point considered below.
Secondly, despite the unqualified word "free", it is only a relative degree of freedom which is accorded by the guarantee. Some religious practices, like some steps taken in furtherance of interstate trade, may be regarded as so plainly inimical to the public interest as to permit selective prohibition validly to operate: Jehovah's Witnesses case (above) at pp.129, 130, 155.
Thirdly, a point whose statement is perhaps unnecessary, not merely popular religions, but also the less orthodox ones, are protected by the guarantee: Jehovah's Witnesses case (above) at p.124. The broad notion of religion accepted in the Scientology case (Church of the New Faith v. Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120) includes within its scope systems of belief which many people, perhaps, would not treat as religious; however that may be, there can be no doubt that the ancient religion of Islam, with its close affinity with Judaeo-Christian religions, is within the guarantee.
What is less clear is whether the guarantee should be narrowly read. Although s.116 has been described by a learned commentator as "one of the forgotten sections of the Australian constitution" and as "regarded ... by all as having little practical value" (see Dr. Pannam in 4 MULR 41), more recent and authoritative statements are to be found having a contrary tendency. Barwick C.J., in Black's case (above) at p.577, speaking of s.116, said:

"I can find no reason why the words of the Constitution should not be given their full effect, whether they be expressed in a facultative or prohibitory provision. In particular, in this case, the emphatic universality of the language of s.116 seems to me to brook no restraint sought to be imposed by any such doctrine as the submission propounds."

Stephen J. said at p.610 in the same case:

"Section 116 is a constitutional provision of high importance. As the plaintiffs say, it does indeed provide important safeguards for religious freedom for Australians, at least so far as that freedom might otherwise be in jeopardy from laws of the Commonwealth."

Although the guarantee has not always evoked such enthusiasm (see Rich J. in the Jehovah's Witnesses case (above) at p.148), it does not seem right to start from any presupposition that the provision has only a narrow operation or can hardly ever conflict with the desires of government. In particular, one should not be over-influenced by the lack of success of those who have, in the past, raised the provision by way of resistance to legislative or administrative steps; it has been but seldom relied on.

It is a peculiarity of s.116 that it is directed against measures of the Australian government with which neither s.51 nor s.52, nor any other provision, gives Parliament power to deal. The inference is that the section, or at least the part of it with which I am concerned, was intended to prevent attacks on religion made by laws dealing primarily with other subject matter, for example, defence, as in the Jehovah's Witnesses case. It is also to be noted that it is only prohibitory laws which are caught. The weight of that consideration is lessened, however, if one attends to the words "free exercise"; the force of the word "free" is such that laws whose legal purpose is the prevention of only an aspect of religious practice may be caught.
In approaching this question it may be thought of significance to note that the provision has a fairly long history, which Fullagar J. in Crittenden v. Anderson (1977) 51 ALJ 171 was careful not to ignore. Not only was a religious guarantee, although not in such broad terms as ours, the very first provision of Magna Carta, but one was also part of the first of that group of amendments to the United States Constitution collectively known as the Bill of Rights. The latter provision is of some significance here, because it was the immediate progenitor of our own, and decisions in the United States based upon it may be of assistance in the present case. It does not seem necessary to adopt or express a view as to the general desirability of a Bill of Rights for the purpose of solving the problems before me, but it should be noted that the recent debate on that subject points up the importance of the difference between what might be described as a true Bill of Rights and the operation of such common law rules as there are tending to the protection of freedom; the latter, but not the former, may lawfully be ignored by the legislature, or by the executive. There can be no doubt that s.116, insofar as it has a relevance to the exercise of the Minister's power here in question, does so in a way which makes that exercise subordinate to it. The objection may be advanced that in practice this entails judicial supervision of administrative action without the authority of the legislature; the answer is that the application of a provision such as s.116 is empowered, indeed required, by a statute having higher authority than anything the legislature can do, namely the Constitution. If it be thought to be an inconvenient result that s.116 may interfere with freedom of governmental action, it is, nevertheless, a result which necessarily follows from provisions of this type.
Another aspect of the operation of s.116 which appears to have been left unclear is whether the word "for" in the expression "for prohibiting the free exercise of any religion" means that the law must be one which has the purpose mentioned. Barwick C.J., speaking in Black's case of the expression in the same section, "for establishing any religion", said at p.579 of 146 CLR that, "... the law to satisfy the description must have that object as its express and, as I think, single purpose." On the other hand, in the Jehovah's Witnesses case, Latham C.J., at p.132 of 67 CLR, gave the word "for" in the present context a less limiting operation:

"The word 'for' shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character."

In the same case, McTiernan J. treated as important the "real object of the regulations" (p.156). It would have been a simple answer to the Jehovah's Witnesses' argument to say that the real object of the regulation there in question was to wage war effectively by suppressing subversive organisations. That (with the possible exception of McTiernan J.) none of the judges provided such an answer tends to support the view I hold. This is that if a law, whatever the reason for its passage, has the legal effect of prohibiting the free exercise of any religion that will, in general, necessitate examination of its conformity to s.116. Otherwise, much activity central to the life of religion in this country could be brought to an end by legislation whose purpose is, for example, defence, or control of entry of aliens.

That aspect of the matter is discussed further below, but it is convenient to mention at this stage that a question arises here of a mixed purpose: in a broad sense, the respondent has ordered the deportation of the sheikh for the purpose of executing the country's migration laws, but more narrowly at least a large part of what he wished to achieve was, specifically, the cessation of the sheikh's functions as head of the mosque.
In searching for the true meaning of s.116, so far as relevant here, it has to be kept in mind that the Constitution had a fixed meaning as at the date of its coming into force. See Black's case (above) at pp.578, 614. While it is true that changing extrinsic conditions may, in some circumstances, alter the scope of operation of constitutional provisions, it is difficult to accept that anything which has happened during this century can have restricted the guarantee's operation. Those aspects of religious observance which were protected in 1900 are still protected. At that date, more so than today, many of the clergy, particularly at the higher levels, were immigrants who came here to take up priestly or episcopal duties within a church. Prohibition of entry of all such people in 1900 would hardly have left free the exercise of the religion of their would-be congregations. Now that most Australian religious groups are less dependent on foreign clergy, it is easy to overlook that some still retain such dependence, in large measure. On the evidence, Australian Moslems are in that category, owing to the absence of indigenous training for office in that religion.
On the contention for the respondent, the guarantee has no possible application to decisions under the Migration Act because the power supporting that Act may, under the Constitution, be exercised free from the restriction imposed by the guarantee. As a matter of construction of the Constitution, that contention is strictly incorrect. A problem of greater difficulty is whether in any practical sense the guarantee is an inhibition on the exercise of the respondent's powers under the Act. Can there ever arise a situation in which the respondent must let a religious leader in, or refrain from putting him out, because of the guarantee alone? Similar problems must arise with respect to the entry of religious objects, which the Australian government may control by exercise of the power under s.51(1) of the Constitution. If it be right that the government is free to prevent the entry of any and all foreign clergy, it is in a position to stop the free exercise of at least those religions with a strong international connection, particularly those short of local clergy. If, on the other hand, the government is not free to prevent the entry of some clergy, the courts may be involved in what are essentially policy questions as to appropriate numbers, qualifications and so forth; as pointed out above, one thing which is clear about the guarantee is that it is not absolute.
In the United States, the guarantee has been held to inhibit the right of legislatures to intervene in questions of control of churches, even when the questions were determinative of property rights. The first important case in this line was Kedroff v. St. Nicholas Cathedral (1952) 344 US 94 which held to be invalid, under the First Amendment, a New York statute transferring control of the Russian Orthodox Churches in North America from the supreme church authority in Moscow to other authorities. That case was followed and taken rather further in Serbian Eastern Orthodox Diocese v. Milivojevich (1975) 426 US 696, which concerned the right of a defrocked bishop to establish by civil suit that his defrocking was not in accordance with the church's constitution. It was held, Rehnquist J. (as his Honour then was) and Stevens J. dissenting, that the courts had no right to enter into a question involving the determination of the proper hierarchical structure of the church, by reason of the First Amendment, which was made applicable to the state by the Fourteenth Amendment. It is noteworthy that the dissenting judgment does not deny the basic principle relied on, but would have given it a rather narrower application. Rehnquist J. said at p.733, referring to Kedroff (above) and cases which followed it:

"The rule of those cases, one which seems fairly implicit in the history of our First Amendment, is that the government may not displace the free religious choices of its citizens by placing its weight behind a particular religious belief, tenet, or sect. That is what New York attempted to do in Kedroff ..."

It would seem consistent with the trend of U.S. authority to hold that the guarantee has a general operation against interference with the rights of religious bodies to choose and displace their own leaders, although it is unclear to what extent decisions on the guarantee as expressed in the First Amendment should be followed here. It appears that at least the basic principle of the American cases must apply; it cannot be consistent with the free exercise of religion, speaking generally, to have the government, rather than members of the religion in question, determine the suitability of a particular individual to occupy a position of religious leadership, and that principle applies even where (as in the Kedroff case) the legislature intervenes for political rather than religious reasons.
It has to be conceded that the facts give some support to the view that what the respondent has done is to interfere with the religious freedom of the members of the association. The sheikh's predecessor had apparently lost popular support and that brought about the appointment of the sheikh himself. His removal, on the other hand, is not proposed by the general body of those who attend the mosque; it is a result of the respondent's disapproval of the fashion in which he has performed his duties, and apprehension about the consequence of that performance. The respondent's decisions have been influenced by religious considerations. According to the s.13 reasons, on 27 March 1985, the respondent at a meeting with Members of Parliament, "repeated various allegations against the applicant ... including: his extremist religious and political views; denigration of other religious groups ..." It has plainly been a matter of concern that in the course of his religious duties the respondent has commented upon political events, but it appears from the evidence that that is an ordinary function of Imams. Part of the reason for the respondent's decisions has been that the sheikh has not heeded warnings "that he should be careful not to present his beliefs and values in a way which could be seen to be offensive to other sections of the community ..."
It is not necessary, for present purposes, to determine whether the effect of a holding that the sheikh's deportation would conflict with s.116 would be to treat it as ultra vires the Act, or as directly in conflict with the Constitution: compare Black's case at pp.580, 581. If the deportation itself is in conflict with the Constitution, it cannot stand, for the Constitution restricts administrative action as well as legislative: see, for example, Kerr v. Pelly (1957) 97 CLR 310 at 318. All the same, the fact that it is administrative steps which are in issue introduces a complication. That arises from the mention of purpose in s.116. It appears to me that the purpose of the administrator must be considered, not that of the legislature; otherwise the absurd result could be achieved that prohibition of free exercise of religion could be brought about by executive action as long as no trace of an intention to attack religion appeared in the enabling statute. In determining purpose, it is the "true nature and operation of the law and the facts with which it deals" which must be considered, not motives (Arthur Yates and Co. Pty. Ltd. v. The Vegetable Seeds Committee (1946) 72 CLR 37 at 68; see also Stenhouse v. Coleman (1944) 69 CLR 457 at 471. The question then becomes whether the true nature and operation of the respondent's decisions infringe the guarantee.
I have come, in the end, to the conclusion that the true effect of the guarantee in s.116 is not such as to make the respondent's actions necessarily unlawful. The path to that conclusion has not involved me in attempting to resolve the larger problems, to which reference is made above, which appear to be involved in the relationship between ss.51(xxvii) and 116 of the Constitution. The narrow principle on which my conclusion is based is that deporting a religious leader, or failing to grant permanent resident status to one, whose presence seems likely to cause continuing dissension within the community, is a lawful mode of exercise of the discretions vested by the Act in the respondent.
That leaves for consideration a secondary argument advanced by counsel on the basis of the guarantee, namely that it was a relevant matter left out of account. Counsel submitted that it was also a matter the consideration of which might have affected the outcome of the respondent's deliberations.
The guarantee is not mentioned in either set of reasons directly, although in the second set there is reference to the petition presented to the Senate in terms which are redolent of s.116. Further, there is a number of passages in the reasons which show that the respondent's advice (which he adopted) was framed with a consciousness of the undesirability of so acting as to put an end to religious practices. The advice notes that it could take time to find a suitable replacement "and the community could be without a religious leader". Without analysing the matter expressly in further detail, I conclude that it is clear that, in a general way, the respondent must have been aware of the desirability of not interfering with the religious observances of members of the association, and not putting a stop to important aspects of them.
It is one thing, however, to say that in determining whether to remove an established Imam, in order that he may be replaced by another whose preaching and other behaviour may be more acceptable to the respondent, the desirability of religious freedom has been kept in mind; it is another thing to conclude that the respondent has regarded himself, in making his decisions, as bound to respect religious freedom. The advices to the respondent appear to me to be drawn on the assumption that no right of members of the association, in respect of religious matters, can be infringed by decisions of the kind which were made. In the first set of reasons, for example, it is said that the "discretion in the legislation is at large". Indeed it is, but the Constitution under which the power to make the legislation arose imposes, in my opinion, restraints which must be observed.

I have had difficulty in forming a conclusion as to whether members of the association were accorded their Constitutional rights under s.116, when the decision was taken to deport their Imam. That difficulty is not lessened by the absence of direct authority as to the operation of the guarantee in a situation of this kind. It appears to me that, at the least, the guarantee must have required the respondent to take the following matters into account:

(i) That the respondent has no right so to exercise his powers as to endeavour to put an end to expressions of a purely religious character on the part of the sheikh, whether "fundamentalist" or otherwise. Reading the powers granted to the respondent under the Act as subject to s.116, it appears to me that the respondent is not entitled, by reason (wholly or in part) of disapproval of such expressions, to take steps to bring them to an end.

(ii) That the respondent's decisions must not be brought

about by an opinion formed by him that the association's members might be better served religiously by an Imam other than the one they have chosen.

In my view, the respondent was obliged to take account of these matters and did not do so. For the reasons set out above, I do not hold that the sheikh could not have been lawfully deported. My conclusion in his favour is limited to the point that s.116 required that matters be considered which were not considered.
It seems, clearly enough, to follow that the application of the second applicant, the sheikh's wife, the result of whose case was treated by the respondent as following from the result of her husband's, should also succeed.
Since the respondent has himself revoked the decisions made on 30 January 1986, it is unnecessary to make any order with respect to them. It will be ordered, however, that the decisions mentioned in the second application be set aside and the matter remitted to the respondent for reconsideration, having regard to those reasons.
In the circumstances, it seems necessary that I hear argument on costs, as the respondent has succeeded as to most of the points raised, although his decisions have been set aside.

[1986] FCA 290

25 JULY 1986