Mahoney, John Richard v Dillon, Chhinda Singh

[1987] FCA 65

T9E JUCGXENT 65 WAS INCOMPLETE

'THIS IS THE CORRECT ONE

THANK YOU PPJNCIPAL REGISTXY.	,
i

CATCHWORDS

Admlnistrative Law - immigration - 5.20 Miqratlon Act 1958 -

whether execution of an order for deportatlon a "decision"

susceptible of review under Adminlstrative Declsions (Judlcial Review) Act - whether a relevant decision in fact made - power to grant relief under 9.16 Administrative Decisions (Judicial

Review) Act requires existence of a reviewable decision under an enactment - no power in Minister to suspend operation of

deportation order - no evidence of request for revocation of

deportatlon order.

Administrative Declsions (Judlcial Review) Act 1977.

Misration Act 1958

Judiciarv Act 1903, s.39B

Dallikavak v. Minister for Zmmluratlon and Ethnic Affalrs

(1985) 61 ALR 471

Znatv v. Minister of State for Imnliqratlon (19723 126 C.L.2 1

Dauuio v. Minister for Immlqratlon and Ethnic Affairs,Ryan J,, 31

October 1986, unreported.

Laremont v. Minister'for Immiqration and Ethnic Affairs,

Lockhart J., 6 December 1985, unreported.

Coulton v. Holcombe (1986) 60	A.L.J.R. 470
-	Lamb v. Moss (1983) 49 ALR 533

JOHN RICHARD MAHONEX & ORS v. CHHINDA SINGH DILLON

No. G495 of 1986

CORAM: Fox, Beaumont and Gummow JJ.

19 February 1987

Sydney

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH MALES DISTRICT REGISTRY	1	No.	G495	of	1986
G E N E W DIVISION	)

ON APPEAL mOM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN : JOHN RICHARD MAHONEY

First Appellant

GREGORY CHARLES KELLY

Second Appellant

PETER JAMES CASTRISSION

Third Appellant

MINISTER FOR IMMIGRATION AND EEYiNIC

AF'FAIRS

Fourth Appellant

CHHINDA SINGH-DHILLOW

Respondent

MINUTES OF ORDER

Judges making orders: Fox, Beaumont and Gummow JJ.

Date order made: 19 February 1987

made Where : Sydney

THE COURT ORDERS THAT:

1. The appeal be allowed.

2 .	That the orders made by the Court on 9 October 1086
be set aside and, in lieu thereof, that the amended

application be dismissed with costs.

3 . That the respondent pay the appellants' costs of

the appeal, except for those costs incurred in

preparing the material for, printing and certifying

the appeal book.

- Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

ON APPEPL from a sinqle judge

of the Federal Court	of
Australia
BEIWEEN :

J O H N RICHARD I.GHr)N?Z'T

First Appellant

GRFXOR'T CHAFLES h%LT

Second Appellant

FETEP J 3 E S CXSTRISSION

Third Appellant

Fourth Appellant

m:

CHHINDA SINGH-DHILLON

Respondent

fa:	FOX, BEAUMONT	GUMMOW	J J .
:	-	D	19 FEBRTJMLRP 1987

RELSONS FOP JTJEG"T

FOX J .

The facts and relevant statutory provisions in this case

have been set out in the joint judament of Beaumont and Gummow

JJ. and in general I agree with their reasonin? and conclusion.

The case of the applicant. the respondent here, should

in my view have failed because he was not able to point to a

2 .

reviewa

3 .<

referred in para.(a) to the decision of the deleuate to deport	<
F

(which was held.not to offend auainst any provision of s . 5 of the f

Judicial Review Act) and in para.(c) to the decision of

departmental officers that the applicant be deported. Section 20

of the Miqration Act 1958 ( "the Act") provides for an Order for

-

deportation and no further order is necessary. or appropriate.

To refer to a subsequent decision of departmental officers to

deport is therefore erroneous. The transport of the deportee

from Australia is dealt with in s.22 and it is possible that a

reviewable decision could arise in relation to the time,

destination or mode of transport selected. However, that is not

what para.(c) refers to. and the evidence did not deal with that

matter. There is no evidence of a decision taken by officers of

the department to arranae for the carryinu out of the order for

deportation already made by the Minister.

The application does not rely on a failure on the part

of the Minister, such as not orderinu suspension of his order.

when facts concernina the leqal action, brouaht by the applicant

(the respondent here) came before him. It has in fact been held

that the Act does not give the Minister a power to suspend the

operation of a deportation order: Dallikavak v. Minister for

Immiaration and Ethnic Affairs (1985) 9 F.C .R . 99: 61 A.L.R. 471

(per Northrop and Pincus JJ. at ~p.101-103; 473-476; per

Jenkinson J. at p.109: 481). There is an express power given indirectly to the Minister in s.20rl) to revoke a deportation

order but there is no evidence in this case that he was asked to

do so. His Honour did not, base his declsion on any such view.

3.

The order for deportation having been sustained by his

Honour there was no decision under an enactment which remained reviewable and of course no ?rounds upon which a review could be based.

His Honour appears to have looked at the total situation

and decided that it was unreasonable that the applicant be

deported immediately and he made orders which in effect resulted

in the deportation beina delayed pendinu further activity in

relation to his common law claim. We are told that proceedings

for damages were instituted on 31 January 1987, well after his

Honour gave judgment.	The three principal orders made by his
Honour were as follows:

“1. The execution of the deportation order made on lith

April, 1986 be stayed until fourteen days after the

l examination of Assistant Commissioner (Crime) Nixon of

the New South Wales police force pursuant to Part 3 of

the Rules of the Supreme Court of New South Wales.

2 . Upon the conclusion of that examination. order the

Minister, bp himself or his Delegate. to consider

whether the execution of the deportation order should be

deferred pendinu the outcome of any proceedings

instituted by the applicant against any member of the

New South Wales police force or aqainst a nominal

defendant appointed pursuant to the Claims aaainst the

Government and Crom Suits Act. 1912 (N.S.W. 1 .

3. The application be otherwise dismissed.”

I understand that the examination referred to has now taken

place. It was thought a matter for the Minister to decide

whether there should be further deferral of the ezecution of the

deportation order. His Honour by his orders sought to do

justice. and	it may be that their purpose has already been
achieved.

4.

As mentioned in the joint judqment of Beaumont and

Gummow JJ. it was was also arqued on behalf of the respondent to the appeal that it vould have been open to him in brinuing his

application to seek to invoke the jurisdiction uiven by s.39B(1)

of the Judiciarv Act 1903. This is so, but an application made

in reliance on s.39B(1) is not to be regarded as a mere appendage

to an application under the Judicial Review Act (see 0.54A r.1).

It was said that if the applicant (the present respondent) had

been aware that there was to be a challenue to the competency of

the Court to deal with the matter raised in para.(c) of the

application he would have considered an application under s.39B.

h applicant has however to make his awn case. or his own

pleadinus. or quasi-pleadings. I do not know that there was any

obliaation on the respondents (the present appellants) to give

any notice such as that material. but the fact	is that	for
reasons already made apparent. the applicant could not have

succeeded in obtaining relief under s.39B.

It was submitted the Court's power to grant relief under

s.16 of the Judicial Review Act was not dependent upon the

existence of a reviewable decision (I leave aside s . 7 ) . This

aruument is untenable. The contrary was in fact made plain in

the course of the decision in L - v. Moss 11983) 49 A.L.R. 533.

I would therefore allow the appeal. The respondent

should pay the appellants' costs of the appeal. except that these

should not include the costs of preparing the material for the

appeal book, having it printed, or certifyin? it. I make this

exception because the appeal book was in a thorouuhlp

5.

/

unsatisfactory condition with many documents out of order, a

number of pages indecipherable, and a key document. the

deportation order itself. was not there. We had to ask for it.

The Certificate of correctness is unsiuned. In my view the

appellants' solicitor should not make any charge	for	the work
mentioned.

I certify that this and the

four ( 4 ) preceding pages are

a true copy of the Reasons

for Judqment herein of his

Honour Mr. Justice Fox.

$.?TA Associate

Dated: 19 February 1987

'

IN THE FDERAL COURT OF AUSTRALIA 1

-_ . l _'

NEW SOUTH W E 3 DISTRICT RECISTRY 1 No. G495 of 1986

. -1-

GENERAL DIVISION . _-_-L

I

ON APPEAL FROM A SINGLE JUDGE OF THE FED- COURT OF AUSTRALIA

BFIWEEN: - -_ J O H N RICHARD MAHONEZ

-- First Appellant

-. ._ .GREGORY CHARLES KELLY

Second Appellant

_- PFIlER JAMES CASTRISSION

Third Appellant

MINISTER FOR IMMIGRATION AND ETHNIC

W A I R S -

--- Fourth Appellant .

- - -. AND. CHHINDA SINGH-DHILLON

-Respondent -

- - .-.

CORAM: Fox, Beaumont_an&-Gummow--JJ. __

DATED: 19 February-~l987-..

I -- REASONS FOR JUDGMENT

BEAUMONT AM) GUMMOW JJ. - This is an. appeal from -

orders made by a single Judge .-of_ the. Court that execution. of an

order made for the deportation of the respondent be stayed for a

certain period and that the Minister-for-Immigration and Ethnic

Affairs consider whether the execution of the deportation order

should be deferred pending the outcome of certain civil

proceedings instituted by the respondent.

. - The respondent, ..a- citize~~of. Jndia, -entered Australia on

22 May 1979 as a visitor. He was then-granted a .temporary entry

permit allowing him to	stay for one month. He-stayed beyond.that._.
period and thus became	a prohibited immigrant for.the.purpQses-of

the Misration Act 1958 (,"the. Act!'). -8s it then stood. Oa26 - May

1980, an order was made under.the Act €or the deportation of _the

respondent. He was.deported on 29 Hay 1980 but again enter.ed

Australia on 17 March 1981 without.an entry.permit. By s.6(1) of the Act, a non-citizen who, not being .theholder. of an entry

permit that is in force, enters-Australia thereupon becomes a

prohibited non-citizen; and by s.18 of-the Act, the Minister may

order the deportation of a person who is a prohibited

non-citizen; by ss.38 and 39 respectively,	prohibited	a
non-citizen and a deportee may be arrested.	On 18 July 1985,

another order was made for the deportation of the respondent. He was taken into custody ..on -30 October 2,985 but escaped from custody on 13 December 1985. He-was .arrested again on 4 April

1986. On 17 April 1986, the depor-tation order-made on 18 July 1985 was revoked and a fresh order-far his deportation was-made

by the first appellant as	the-delegate of the Minister.in these
terms :

"WHEFEAS CHHINDA DHILLON also known as CHHINDA

also known as SURINDER PAL and other by aliases

being a non-citizen, entered Australia on a date

unknown beween the first day of February 1981

and the twenty-eighth day of February 1981

AND WEREAS the said CHHINDA DHILLON is - a prohibited non-citizen by virtue of section 6 of the Migration Act 1958 in that he was not, at

the time he entered Australia, the holder of, or

a person included in, an entry permit and an

entry permit has not been-granted to him since

NOW I, JOHN RICHARD MAHONEY, Assistant

Secretary, Entry Regulation Branch, Department

of Immigration and Ethnic Affairs, and delegate

of the Minister of State for Immigration and

Ethnic Affairs, DO HEREBY O R D E R , pursuant to

section 18 of the Migration Act 1958, that the

said CHHINDA DHILLON be deported from Australia"

On 17 April 1986, solicitors acting for-the respondent

wrote to the Minister as follsws:

11

__ . . .On the 3rd April-1986. po.lice-and-immiqration.

officers conducted a. .raid.on- .a.. farleat Penda, -.

some 15 kilometres east - o€.Griffith, . -.As- a-

result of that raid our. client-was -.-shot and...

suffered severe injuries ...

We act for - Mr. Dhillon.. with.-_r-wpect_-. to- a-.

proposed civil claim for damages.arising. from

the incident. We hereby formally request that

the Minister reserve any decision in respect of

the deportation of our client until such time as

he has been able to exercise his right to pursue

a claim. In this-respect we refer you to the

unreported decision of Mr Justice Lockhart in

the Federal Court of ..Australia of the 6th

December 1985 in the matter of Learmont -vs- the

Minister for Immisration & Ethnic Affairs..."

By a telegram to the solicitors dated 24 April 1986, an

officer of the Department of Immigration and Ethnic Affairs

sought particulars of the respondent's claim. The solicitors

responded by letter dated 30 April.1986:

". . .We are unable to provid&the. particulars you

seek at this time.

are We firmly instructed .institute to

proceedings in relation to the-injuries suffered

by our client. Hr. Dhillon is not, however, in a position to satisfactorily identify the person

responsible for his injuries. It will therefore

be necessary t.0 commence-pr-oceedings pursuant to Part 3 of the Supreme Court Rules (NSW) by way of preliminary discovery--with a. view to identifying the persons ._responsible for--our client's injuries. Proceedings-for damages..will then be initiated against-those persons.

We anticipate that..preliminarg discovery-will-be-

directed to the Minister. for ..-. Immigration- &--

Ethnic Affairs, Federal and New __South . W e s _ _

Police. -

We again formally request that you-refrain-.from

taking action. to deport our client at this

time.. .'*

. In further correspondence, the. solicitors for the .

respondent gave particulars of his claim. On 5-.September 1986, the respondent instituted these proceedings seeking review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of, inter alia -

"(a) the decision taken ..on or . about 17 April,

1986 by the .delegate of the .. Four.th Respondent to-order the deportation of. .the Applicant from Australia pursuant to section 18 of the Migration Act- 1958 (Cth) ;

...

(c) the decision .taken by officers .of -.the_. Fourth Respondent that.-the AppUcant. be deported from Australia;"

By an-amended application made-on 16 September 1986, the respondent, in seeking judicial review of, inter alia, the two decisions previously mentioned, expanded the.grounds upon which

that review was sought. He sought permanent relief in the form

of an order that the deportation order "be set aside as null and

void" and "Cs3uch further or other order as the .Court sees .fit."

In his reasons, the learned -judge.said that on 24

September 1986 the Supreme Court of New South Wales ordered- that

the Assistant Commissioner of Police -(Crime) Nixon attend before the Court for oral examination-as-to-the identity of the officers

who shot the respondent.. The -examination was to take place on a

date to be arranged.although Hr. Nixon was not available until

later in that month. His Honour also mentioned that. since

reserving his judgment, the Court had been informed that.-a.

petition under the Claims aqainst the Government and Crown Suits

Act 1912 (N.S.W. 1 .had been. ..prepared. -..We were informed on the-.

appeal that proceedings were .instFtut,eLon 30-Januar.y-last.. .

_- -

The respondent.'.s.--challenqe,&.-both .,the--. decisions-

mentioned was based upon two.. grounds It-was-said-f irst. that the decisions were made without takingAto_-accaunt. . relevant _ _

considerations (see . _ the...Judicial Review Act,- .s.S(l).(&-- and.

s.5(2) (b) 1 . Alternatively,.-it was contended that-the-exercise.of- the relevant powerwas so unreasonable that no-reasonable_.-person could have so exercised it (the Judicial Review Act, s.5(l)(e) and s.5(2)(g) 1 . The learned judge rejected the respondent's

challenge in respect of the first decision sought to be reviewed,

i.e. the decision to order the respondent's deportation. No

appeal has been brought from this part-of his Honour's judgment.

In dealing.with the..respondent's application to review

what was described as the second "decision" under challenge,.i.e.

the "decision" mentioned in para.(c) of the amended..application,

the learned judge said:

“What the applicant really seeks -to-achieve. is to

remain long enough in Australia-to prosecute his

claim. I agree with submissions made by his

counsel that once he leaves the jurisdiction, it

will be, from a practical point of view, quite

impossible for-him -to prosecute i . Unl-ike -the-

decision to make the deportation-order-.whereby .

the applicant would..be deported, the.decision.to I

execute the order involves a continuing-process.

The order may be-executed at-any.time.--The fact--

-that the reason-why it has not been executed is.

. because of a star of.proceedings granted by.Zhis

Court in May last is..not to-the-point.

Just as it would .be-lawful...for the. Department,

although a deportation order -were- in-.existence,

to leave it in-abeyance until-a deportee was fit

to travel, so, in my opinion,..would it-be lawful

to delay its execution until a deportee in.-the

position of the applicant here had had an

opportunity-of prosecuting his claim. Thi S

course was adopted by Lockhart J. in Laremont v.

Minister for Immisration and Ethnic Affairs ( 6

December 1985, unreported). In that case the applicant wished to maintain proceedings for

workers compensation against his employer.

Lockhart S did not set the deportation order

aside but referred the question of whether the applicant should actually be deported to the

Minister €or further consideration and directed

him not to execute the order prior to that

consideration being given.

Because the position is a continuing or

developing one, I think it appropriate to look

at the position as it is now. In my view- it ~

would be wholly unreasonable to decide to

execute the deportation order forthwith without giving the applicant an opportunity at least of.

seeing the outcome of the examination of -

Assistant Commissioner. Nixon which is to take..

place later this month. Whether, in the light

of what emerges from that examination, it would

be unreasonable to deport the applicant until he-

had had an opportunity of prosecuting his claim

is, I think. a matter for the Minister to

decide, no doubt with the aid of what emerges

during Assistant Commissioner Nixon ’ S

examination. Without binding him in any way, I

would expect hat he willingness of the

applicant’s solicitors to act expeditiously in the prosecution of any claim would be a matter

to which he would have regard. If the Supreme

d

Court is willing to do so,. the hearing-.of any.

proceedings should be expedited ,.. I would. -also.

express the tentative view thaL..the-Minister

would be well justified in requiring the

applicant to remain in custody. during the period.-

of any deferral of the execution of the

deportation order. The applicant's record makes

it clear that he is not to be trusted to abide

by any conditions set in relation to the grant

of bail.

In the circumstances I propose to dismiss the

applicant's claim for judicial review in concluded. Whether any further stay of it is granted will be a matter for the Minister -to

relation to the decision to sign the deportation

order but to uphold it in relation to his claim

that the decision to execute the deportation

order should be reviewed. !Ch& order will be

stayed until fourteen days after Assistant

decide in the light of the then circumstances."

His Honcur then nade these orders:

"1.

The. execution of the-deportation order made on 17 April 1986 be-stayed until fourteen days after the examination of Assistant

Commissioner (Crime) Nixon-of the New South

Wales police force pursuant-to Part 3 of

the Rules of.the Supreme Court of-New South

Wales.

2 . Upon the conclusion of that examination, order the Minister, by himself or his Delegate, to consider whether the execution of the deportation order should be deferred pending the outcome of any proceedings instituted by the applicant against any member of the New South Wales police force or against a nominal defendant appointed pursuant to he Claims against the Government and Crown Suits Act 1912 (N.S.W.).

3 . The application be otherwise dismissed.

4 . ....

S. There be liberty to apply generally."

_ . . -

.- -

_ - -

The appellants now..seek..to--attack the orders granting.

this limited relief (i.e.. orders-l,_.2..-and-5) on two grounds.

They say that the C0ur.t had no jurisdiction-under the. Judicial

Review Act to deal. with the “decision’~__alleged. in p ra. (c) of the--

amended application - f or..review-- because, in- -truth,-.no relevant

decision was involved.-ALternativelp, they-sap that, even i€-,a

relevant decision were involved, no ground-of judicial review-was

established. . . . - - -

It is convenient to. _deal- first-with -the.-. jurisdictional

point.

As has been noted, the Act provides that the Hinister

may order the deportation of a person who is a prohibited

non-citizen (s.18). Section 20 provides:.

“20. (1) Mere the Minister has made an order for the deportation of a person, that

person shall, unless the Minister revokes	the.
order, be deported accordingly.

( 2 1 The validity of ..an order for the

deportation of a person shall-not be affected by

any delay in the execution of-that order.”

It is submitted on behalf of the appellants that, -for

present purposes. there .is only one relevant decision. A.- the.

decision to make- the deportation order -_and since there is no

scope for a subsequent “decision” to -suspend the order, the.

“decision“ alleged -in para. ( c ) of the amended application was not.-

capable of review. Support for this contention is found in the

decision of .the . fill .Court in. Dallikavak -v. -. Minister for

Immisration and Ethnic Affairs .(l9851 61- A.L.R..471. It was.

there held that the Act giyes.-the Minister.-no .power, xpressly or

by implication, to suspend a dep-ortation-order (per Northrop._and.

Pincus JJ, at pp.473-476; per Jenkinson J.. at-p.481). Their

Honours referred to the Minister's _power .of. revocation but

distinguished it from the suggested power of suspension.

(It is true that in certain other--contexts, not.-here..

material, questions may arise in connection with the arrangements for deportation and it is conceivable that a decision susceptible- of review under the Judicial Review Act could there arise (see.. Znatv v. Minister of State for Immisration ( 1 9 7 2 ) 126..C.L.R. 1

per Walsh J. at p.8; Daguio v. Minister for Immiqration and

Ethnic Affairs, Ryan J.. 31 October 1986, unr.eported, at p.18).

It is not necessary that we pursue.-this.question.) - -

In its -terms 9-20 C1 1 - contemplates ,-- indeed.-xequires

that, unless revoked,-the-deportation order will .he. .-complied_

with. In the present case,.no application €.or revocation of the

.

order was made. True .it is that In ..their c.oorrespondence. t h e

solicitors for the respondent requested the Minister-to-stay his-.

hand. But in neither form nor substance should these requests.be-

treated as applications for the revocation of the order. It follows, in our view, that no relevant decision was there involved. The consequence must be that, on this branch of the case, there was no decision under the Act which could.be the subject of judicial review under the statute.

:.

_-

The respondent sought.. to ... find some _.comfort _-in. the

decision of Lockhart J. in. Laremont v. .The Minister for

Immlaration and Ethnic Affairs, 6 December 1985, unreported .... The -.

Court there ordered that the--question.whether to order the

deportation of the-applicant. be-referred to the Minister.. for

further consideration; -.and directed that ..the. Minister not

execute the deportation order already made prior-to his--givlng

further consideration to the question referred ...--- But,.in his.

reasons, Lockhart J. made it clear that the Court-was reviewing

the decision to make a depor.tation.. order..aa distinct from

"decision" to defer the..implementation	of such an .order.	_ _	.The _._
case does not assist the respondent.-.

It was also argued- on behalf..of the respondent that it

would have been open to .him in bringing his.application to seek

to invoke the jurisdiction conferred by s.39B(1) of the Judiciary

Act 1903. Since the respondent's. application..was based on the Judicial Review Act, it would-be -wrong.to permit him to raise a

different case at this stage (see Coulton v. Holcombe (1986) 60

A.L.J.R. 470 at p.473). ~

Finally,-it was contended for the-respondent that the- Court's power to grant- relief under s.16 of-the Judicial Review

&& was not conditioned-.upon the existence of- a reviewable

decision under an enactment. The contrary is now ell

established (see v. (1983) 49 A.L.R. 533 at p.549) and

the contention should be rejected accordingly.

__ It follows. that the. .-appellants' -_objection to.--the..

competency of-this branch of the respondent's-amended application ,

.-.

should be upheld ... . .. - - -. -. _ _

In the. circumstances,-- it Fs .unnecessary-to deal with the

appellants' alternative. Argument - .that no --ground-. of judicial

review	as	established.	- -_	. .
would

W$ make the following orders:

1. Appeal allowed..

-2 . -Order that orders made by the Court on 9 _ _

. October 1986 be set aside and,- in lieu

I thereof, order that the amended application

. be dismissed with costs.

3. Order that the respondent _ _ .pay.-. the appellants' costs of-the appeal, except for those _costs incurred in preparing the material for,.printing and certifying the appeal book..

-1 certify that this.and the

___. preceding- ten - _ _ (10)

'pages are a true .copy- of the.

. Reasons for Judgment herein.. of

Counsel and Solicitors G.K. Downes Q.C..with

for Appellants:

C.J. Stevens instructed by the

-.Australian Government Solicitor

Counsel and Solicitors Dr. G. Flick instructed by

for respondent:	. Tzovaras & Company
Dates of hearing:	. l0 February 1987

Date Judgment Delivered: 19 February 1987