Martin Karunakaran v the Minister for Immigration & Ethnic Affairs

Re: MARTIN KARUNAKARAN
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G278 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative law - Deportation order - Application for judicial review dismissed - Appeal to Full Court - Application for stay of deportation order pending appeal - Test to be applied.

Administrative Decisions (Judicial Review) Act 1977, s.15

HEARING

MELBOURNE

#DATE 20:11:1984

ORDER

The application of the appellant under section 15 of the Administrative Decisions (Judicial Review) Act 1977 for an order suspending, pending the hearing and determination of the appeal against the judgment and order of Sheppard J. given and made on 30 July 1984, the operation of the deportation order made on 29 July 1983 is dismissed.
The appellant give security to the satisfaction of the Registrar of the Court within 21 days from the date of this order in the sum of $2,000 for the respondent's costs of the appeal herein, failing which the appeal stand dismissed.
The costs of the two applications before the Court be the respondent's costs in the appeal.

JUDGE1

I have before me two applications relating to an appeal to a Full Court of this Court by Martin Karunakaran ("the appellant") from a judgment of Sheppard J. given on 30 July 1984 dismissing an application under section 5 of the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a decision of the Minister for Immigration and Ethnic Affairs ("the respondent") made on 29 July 1983 that the appellant be deported from Australia. The first application is an application by the appellant for an order suspending, pending the hearing and determination of the appeal, the operation of the deportation order. The second application is by the respondent seeking an order that the appellant provide security for the costs of the appeal.

The application to suspend the operation of the deportation order is made under section 15 of the Administrative Decisions (Judicial Review) Act 1977 which provides -

"15.(1) The making of an application to the Court under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the decision but -

(a) the Court or a Judge may, by order, on such conditions (if any) as it or he thinks fit, suspend the operation of the decision; and

(b) the Court or a Judge may order, on such conditions (if any) as it or he thinks fit, a stay of all or any proceedings under the decision.

(2) The Court or a Judge may make an order under sub-section (1) of its or his own motion or on the application of the person who made the application under section 5."

It may be mentioned that, immediately following the making by the appellant of the application to the Court under section 5 of the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of the deportation order, a judge of the Court on 9 August 1983 made an order under section 15 of that Act staying until further order the decision and order of the respondent to deport the appellant. It is common ground between the parties that such stay operated only until Sheppard J. delivered judgment in the matter dismissing the appellant's application.
The appellant, who is now 23 years of age, arrived in Australia from Fiji on 3 February 1978 and was given a temporary entry permit to enable him to continue his schooling here. Further temporary entry permits were issued to the appellant enabling him to stay in Australia until 31 May 1981. He did not stay until that date but returned to Fiji. On 8 November 1981 he returned to Australia, having obtained a further temporary entry permit which was due to expire on 8 March 1982. That permit was renewed and eventually expired on 10 March 1983. No further permit has been issued to the appellant so that he was at the time the deportation order was made, and is, a prohibited immigrant or, in the inelegant language of the statutory provisions currently in force, a prohibited non-citizen. The appellant did not leave Australia when required to do so and the deportation order was signed on 29 July 1983.
The appellant came to Australia as a participant in a scheme implemented by the Governments of the Commonwealth and of New South Wales for the education in Australia of private overseas students. The nature of the studies undertaken by the appellant in Australia and the results he achieved are referred to at length in the reasons for judgment of Sheppard J. and it is unnecessary to refer to them in detail here. It is sufficient to note that the New South Wales Department of Technical and Further Education determined that the appellant was not qualified, and therefore ineligible, for enrolment in a course of study approved by that Department for overseas students and so informed the Commonwealth Department of Immigration and Ethnic Affairs. The appellant was then informed that he was required to leave Australia.
Before Sheppard J. it was argued for the appellant that a breach of the rules of natural justice occurred in connection with the making of the decision in question. This argument was rejected on the ground that this was not a case in which the respondent was obliged to observe those rules. His Honour also rejected a submission that the respondent had applied relevant guidelines inflexibly and without reference to the appellant's personal position and submissions based on paragraph 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 read in conjunction with paragraphs 5(2)(a), 5(2)(b) and 5(2)(h) thereof.
In dealing with the latter submissions his Honour said -

"At the heart of the case, therefore, is the question of the applicant's capacity for further study. If his capacity was as stated in the recommendation upon which the Minister based his decision to deport the applicant, no irrelevant consideration has been taken into account and no non-existent fact has been relied upon. If, on the other hand, Mr Faubel said what he did, albeit in good faith, under the erroneous impression that the applicant was not sufficiently qualified, when in fact, according to the guidelines set by the TAFE Information Office he was, the argument is open that an irrelevant consideration was taken into account, a relevant consideration, i.e., the applicant's capacity, was omitted from consideration and that the Minister acted upon a wholly erroneous understanding of the essential facts.

It should be clear that it is not for the Court to determine for itself whether the applicant had or had not the requisite capacity to undertake any course. So long as those responsible, e.g. Mrs Hurst, reached their decisions in good faith and upon material reasonably capable of justifying their conclusions, the Court will not interfere. It is not to the point that it might itself have taken a different view. The decision is not for it but for the relevant departmental officers. So long as they proceed according to law and upon facts which they are justified in treating as correct, the Court will not disturb what they have done.

In my opinion, Mrs Hurst's evidence ought to be accepted in its entirety. It follows that she justifiably held the view which she expressed to Ms Stubbing that the applicant did not have the requisite capacity. Once it is concluded, as I think it should be, that in the eyes of the N.S.W. Department the applicant did not have the requisite capacity to embark on a technical college course, the outcome of the case is foreclosed. The applicant could not be enrolled at a technical college in N.S.W. The Commonwealth Department of Education was told that there was no place for him. There was no basis upon which it could recommend his continued stay in Australia to the Department of Immigration. That Department no longer had any warrant for granting him renewals of his temporary entry permit. He thus became a prohibited immigrant and subject to deportation."

Sub-section 15(1) of the Administrative Decisions (Judicial Review) Act 1977 is expressed in such a way as to suggest that it may not apply in a situation where the application to the Court under section 5 of that Act has been determined and what is pending in the Court is an appeal from that determination. It was not put in argument that that was the proper construction to place on the sub-section and, in those circumstances, I propose to deal with the application on the basis, accepted by both parties, that an order may be made under that sub-section in circumstances such as the present.
The test to be applied in determining whether relief should be granted under sub-section 15(1) has been considered by Bowen C.J. in Collins v. Minister for Immigration and Ethnic Affairs (unreported - 26 November 1982) by Keely J. in Perkins v. Cuthill (1981) 34 ALR 669 and by Northrop J. and a Full Court of this Court in Faingold v. Zammit. The decision of Northrop J. is not reported: the decision of the Full Court is reported (1984) 1 FCR 87.
In Perkins v. Cuthill Keely J. said, at p 671:

"In my opinion s.15(1)(a) requires an applicant to satisfy the court that reasons or circumstances exist which make it just that the court should make the order sought, but it is not necessary for the applicant to show that those reasons or circumstances are in any sense 'special' or 'exceptional'. Of course the discretion must be exercised judicially and not arbitrarily."

Northrop J. in Faingold v. Zammit thought that the appropriate test was that expounded by Gibbs C.J. in The Australian Coarse Grain Pool Pty. Ltd. v. The Barley Marketing Board of Queensland (1982) 57 ALJR 425 in deciding whether an interlocutory injunction should be granted - that is to inquire whether there is a serious question to be tried and then to determine the matter of the balance of convenience. On appeal from the decision of Northrop J. the Full Court said, at p.92:

"In our opinion it will be difficult for an applicant to show that reasons or circumstances exist which make it just that the court should make the order sought unless it is demonstrated that the applicant has a point of substance to argue which, if successful, will result in judgment in his favour. In this respect it does not appear to us that the two tests are, in practical terms, very different."

Both Perkins v. Cuthill and Faingold v. Zammit were cases where an application had been made to the Court for an order of review under section 5 of the Administrative Decisions (Judicial Review) Act 1977 but that application had not been determined prior to the application being made under section 15. So too was Collins v. Minister for Immigration and Ethnic Affairs. Those cases are therefore distinguishable from the present case.
In my opinion, where an application is made under section 15 following a hearing of a substantive application for an order of review under section 5 and it is sought to suspend the operation of the decision which was the subject of the review or to stay proceedings under that decision pending the hearing of an appeal, the applicant must, in order to obtain relief, satisfy the Court that there are real prospects that the appeal will succeed.
I turn, therefore, to a consideration of that question. Counsel for the appellant informed the Court that on the hearing of the appeal it is proposed to argue that "the true position" was not, but should have been, put before the respondent when making the decision to deport the appellant and that Sheppard J. was in error in failing so to find. In using the expression "the true position", counsel was referring, first, to the policy decisions that had been taken within the New South Wales Department of Technical and Further Education that criteria different from those applicable to determine the eligibility for entry to a College of Technical and Further Education of local students were to be applied when considering the eligibility of overseas students and, secondly, that those policy decisions had not been made public. An additional argument to be advanced on the hearing of the appeal is that the respondent, before making the deportation order, should have explored whether the appellant might have been able to gain entry to an institution other than a College of Technical and Further Education in New South Wales. It is also envisaged that on the hearing of the appeal the respondent's statement in the reasons for his decision furnished to the appellant under section 13 of the Administrative Decisions (Judicial Review) Act 1977 that the appellant had "failed to achieve minimal academic requirements" expressed a conclusion which was not open to him.
The appellant has not established to my satisfaction that the prospects of success in the appeal are such as to warrant the granting of the relief which he seeks. The facts surrounding the making of the deportation order were exhaustively examined in the proceedings before Sheppard J. whose findings thereon are set out in his reasons for judgment. The appellant seeks to challenge the conclusion that his Honour drew from the facts so found that the respondent had not failed to take into account relevant matters. He seeks to show that the respondent was bound to take into account not only the decision that the New South Wales authorities had made on a matter committed to their determination but the policy lying behind that decision and the reasons for that policy. It cannot be said, in my view, that there are real prospects of succeeding in such a contention.
It should also be mentioned that the notice of appeal filed on behalf of the appellant includes as a ground of appeal that Sheppard J. was in error in holding that the respondent was not obliged to observe the rules of natural justice prior to making the deportation order. In the light of the decisions of the High Court and of this Court concerning the applicability of the rules of natural justice in relation to the making of decisions under section 18 of the Migration Act 1958, it cannot be said that this ground of appeal is likely to succeed while those decisions stand.
I have also taken into account the fact that, although notice of appeal was given on 8 August 1984, the papers for the use of the Court on the hearing of the appeal have not yet been prepared by the appellant and he has taken no steps to seek an expedited hearing of the appeal.
For the above reasons I decline to make an order under section 15 of the Administrative Decisions (Judicial Review) Act 1977 suspending the operation of the deportation order.
It remains to consider the respondent's application for security for the costs of the appeal.
It may at first sight seem somewhat anomalous that the respondent should oppose the application to suspend the operation of the deportation order and at the same time apply for security for the costs of the appeal. It seems anomalous because, if the operation of the deportation order is not suspended and that order is carried into effect and the appellant deported, it would seem to be unlikely that the appeal would proceed. However, as the appellant is being supported in the conduct of the proceedings by Dr V.J.A. Flynn, whom Sheppard J. described as a philanthropist, it cannot be said with certainty that the appeal will not proceed even if the deportation order is carried into effect. Further, the circumstance that I have declined to make an order suspending the operation of the deportation order does not mean that the appellant will necessarily be deported before the appeal comes on for hearing. That is a matter for the respondent.
The Court's power to order security for costs is to be found in section 56 of the Federal Court of Australia Act 1976 which provides, inter alia, that the Court or a Judge may order an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him, the security to be of such amount, and given at such time and in such manner and form, as the Court or a Judge directs. Order 52, rule 20 of the Federal Court Rules provides that, unless the Court or a Judge otherwise directs, no security for costs of an appeal to the Court shall be required.
The appellant is admittedly impecunious and I am satisfied that, having regard to that circumstance, his prospects of success in the appeal and the further consideration that to order security for costs will not, of itself, frustrate the appeal, it is just to make an order that the appellant give security for the respondent's costs of the appeal. I have had regard to the circumstance that notice of the application for security was not given until 29 October 1984 although the appeal had been instituted on 8 August 1984. However, in all the circumstances, I do not regard that period of delay as disentitling the respondent to an order.
No material was placed before me by way of estimating the costs likely to be incurred by the respondent in contesting the appeal. The Court, is, therefore, left to form a view of what such costs are likely to be, based on such knowledge as it has of the issues as disclosed by the reasons for judgment, the notice of appeal and the submissions of counsel. In the final analysis one cannot be more precise than to say that the Court should fix such sum as it thinks just having regard to all the circumstances of the case. On that basis I think that security should be given in the sum of $2,000.
I, therefore, order that the appellant give security to the satisfaction of the Registrar within 21 days in the sum of $2,000 failing which the appeal herein is to stand dismissed.
As to the costs of the two applications before the Court, I think the appropriate order is that those costs be the respondent's costs in the appeal.
Before parting with the case it is, I think, appropriate to suggest strongly to the respondent that the appellant should be informed as soon as possible whether the deportation order is to be enforced against him prior to the determination of the appeal. It is unfair that he should be left in the state of doubt which at present surrounds his future.

[1984] FCA 381

20 NOVEMBER 1984