Matiu, K v The Minister of State for Immigration & Ethnic Affairs

[1985] FCA 461

Re: KONELIO MATIU
And: THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS and LIONEL
BARRIE WOODWARD (1985) 7 FCR 116
No. G239 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Administrative Law - judicial review - immigration - application for review of decision to deport - whether Minister bound by rules of natural justice - whether exceptional circumstances giving rise to legitimate expectation present - whether Minister observed rules of natural justice

Administrative Decisions (Judicial Review) Act 1977, s.5

Migration Act 1958, ss.6A, 18

Administrative Law - Judicial review - Immigration - Person temporarily entering Australia contracting marriage - Whether legitimate expectation that he will receive a permanent entry permit or special treatment - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 - Migration Act 1958 (Cth), ss 6A, 18.

HEADNOTE

The mere fact that a person who has entered Australia temporarily contracts a marriage to an Australian citizen cannot give rise to a legitimate expectation that he will thereby receive a permanent entry permit or any special treatment from the Minister.

HEARING

Sydney, 1985, September 6, 12. #DATE 12:9:1985
APPLICATION

Application to review a decision of the Minister for Immigration and Ethnic Affairs that the applicant be deported from Australia.

C Evatt, for the applicant.

M Beazley, for the respondent.

Cur adv vult

Solicitors for the applicant: M F Twemlow & Co.

Solicitors for the respondent: Australian Government Solicitor.

GFV

ORDER

The application be dismissed.

The applicant pay the respondents' costs of the application.

Orders accordingly

JUDGE1

This is an application to review a decision by the second respondent, who is the delegate of the first respondent, that the applicant be deported from Australia. The decision was made on 15 August 1985 pursuant to s.18 of the Migration Act 1958.

1. The applicant is a citizen of Western Samoa. He arrived in Australia as a visitor on 26 May 1982 and was granted a temporary entry permit authorising a stay of one month. He has lived in Australia continuously since that date. Some little time after arriving in Australia he met a Fijian woman whom he subsequently married. The circumstances surrounding the marriage were, to say the least, extraordinary. However, it is unnecessary to refer to them in any detai1. Having lived with his future wife on a de facto basis for about a year he was married to her on 31 March 1984 at the Wayside Chapel, Kings Cross. He was then aged 23 years. His wife was nearly twice his age. She gave a false name at the time of her marriage. At the time the marriage ceremony took place the applicant believed his wife's name was Rita Gibson, but after the marriage she told him that her real name was Ora Wairihi. At a later point of time she told him that her name was not Ora Wairihi, but Shanti Devi. She then said that she had been married before, but was divorced. The applicant and his wife then decided to go through a second form of marriage which took place on 8 June 1984.

2. The applicant applied on 9 July 1984 for a further entry permit and for resident status. His application was sponsored by his wife, but in November 1984 she furnished a statutory declaration to the Department of Immigration in which she stated that her marriage to the applicant had irretrievably broken down. She withdrew her sponsorship of her husband's application. In April 1985 she advised the Department that she and the applicant had not lived permanently as man and wife and that he had physically assaulted and threatened to kill her.

3. Prior to his application for a further entry permit being determined he was interviewed to ascertain his personal circumstances. On 16 April 1985 this application was refused. He sought a review by the Immigration Review Panel of this decision. The Panel considered his application and expressed some concern that he had not been interviewed using the services of an interpreter. The panel recommended that his case should be investigated further.

4. On 12 June 1985 the Minister considered the Immigration Review Panel's report and decided to adhere to his decision to refuse resident status to the applicant. On 17 June 1985 the Minister signed an order for the deportation of the applicant. The execution of this order was stayed by order of this Court on 19 June 1985. Subsequently the Minister revoked his order of 17 June 1985.

5. On 1 August 1985 the Australian Government Solicitor wrote a letter to the applicant's solicitors which stated in part:
   
   

"My client, the Department of Immigration, has now instructed me that it intends to review both the decision to refuse your client a permanent entry permit, and the decision to deport your client. The Department, however, makes no undertakening that the result of such review will be favourable to your client.

"In reviewing both decisions, the Department has agreed to consider any written submissions your client wishes to make, provided they are received no later than 9 August 1985. In addition, the Department intends to re-interview your client within the next week in the presence of an interpreter, and will not object to a legal representative being present. I have requested the Department to contact you so that suitable arrangements can be made."

1. On 5 August 1985 the applicant was interviewed using the services of an interpreter. His solicitor was present at the interview. The applicant gave a comprehensive account of his general circumstances and, in particular, of his relation ship with his wife. He stated, inter alia, that his marriage was on-going and that he and his wife had agreed to continue their relationship.

2. On 6 August the applicant's solicitor forwarded an unsworn affidavit from the applicant's wife in which she stated that her previous statement that the marriage had broken down was made at a time when she was jealous of her husband's association with another woman. She stated that she now wished her marriage to the applicant to continue. She was interviewed on 7 August 1985 in the presence of the applicant's solicitor and affirmed that she wished her marriage relationship with the applicant to continue. However, at the conclusion of this interview, and after the applicant's solicitor had departed, she advised the interviewing officer that she did not think her relationship with the applicant would continue. At a further interview, in the presence of her own solicitor, she said that she was of the opinion that her marriage to the applicant was contrived so that he could obtain resident status, that she still loved the applicant but had doubts about their future relationship.

3. Included in the report which was submitted to the Minister before the deportation order was signed on 15 August 1985 was a statement that the applicant had committed an offence under s.31B(2) of the Migration Act by engaging in employment without written permission. It is beyond question that the applicant had, in fact, engaged in employment after he entered Australia and without permission. In the report the Minister was advised of the conflicting accounts given as to the state of the applicant's marriage. The Minister was advised that, apart from his marriage to a resident of Australia, the applicant had not advanced any compelling or compassionate circumstances for a grant of resident status under s.6A(1)(b) of the Migration Act. It was recommended that the deportation order made on 17 June 1985 should be revoked, that the application for a further entry permit should be refused, and that a fresh deportation order should be made against the applicant. This recommendation was adopted and the fresh deportation order was duly made.

4. It is submitted on behalf of the applicant that the facts as I have stated them make out a case for the application of s.5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 in that a breach of the rules of natural justice occurred in connection with the making of the decision to deport the applicant. There were two branches to the submission. First, it was submitted that the facts established that the applicant had a legitimate expectation that the Minister would observe the principles of natural justice before a decision was made to deport him. Secondly, it was submitted that a breach of the rules of natural justice occurred in that the Minister failed to advise the applicant that he intended to take into account the fact that he had engaged in employment in Australia without permission.

5. I do not think there is any substance in either branch of the submission. In Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 40 ALR 341 at 348 Bowen C.J. and Franki J. left open the question whether there may be exceptional cases in which the circumstances are such as to give rise to a legitimate expectation that the Minister will not exercise the power to deport under s.18 of the Migration Act without observing the rules of natural justice. Their Honours there said, after referring to the decisions of the High Court in Salemi v MacKellar (No. 2) (1977) 137 CLR 396 and R v. MacKellar; Ex parte Ratu (1977) 137 CLR 461:
   
   

"Whether or not there is any reason for contending that in some exceptional case, which has not yet emerged, there would arise an obligation, when exercising the power conferred by s.18, to observe the rules of natural justice, remains to be finally determined. It may be noted that since those two cases, s.27 of the Migration Act has been amended to make it a criminal offence to remain in Australia upon the expiration of a temporary entry permit."

1. It would seem clear from this passage that their Honours thought that, notwithstanding the decisions in Salemi and Ratu there might nevertheless be cases in which the facts are so exceptional as to give rise to an obligation on the Minister to afford natural justice to a person against whom he was proposing to make an order under s.18. Davies J., the third member of the bench in Haj-Ismail, thought that there would be such cases.

2. However, I am of the opinion that, on any view of the law, the facts of the present case did not give rise to any obligation on the part of the Minister or his Delegate to observe the rules of natural justice. The only circumstance relied upon by counsel for the applicant as giving rise to such an obligation was the circumstance that the applicant had contracted a bona fide marriage after he entered Australia and that the marriage was an on-going relationship. I think it was well open to the Minister to be sceptical of the bona fides of the marriage and of the prospect of it continuing. However, even if it be assumed that the marriage was genuine and likely to subsist, there would be no basis for a finding that the applicant had a legitimate expectation of the kind referred to in the cases. A person who is permitted to enter Australia temporarily cannot, merely by contracting marriage, reasonably or legitimately expect that he will thereby receive any special treatment from the Minister. There is nothing in the Migration Act which would justify such an expectation. Counsel for the applicant referred to s.6A(1)(b) of the Act, but that provision cannot give rise to any expectation that a person who becomes the spouse of an Australian citizen will be granted a permanent entry permit. All that s.6A(1) does is to limit the classes of persons who may be granted entry permits. Nor was any representation made to the applicant that his marriage would entitle him to any special consideration. In Cole v. Cunningham (1983) 49 ALR 123 the making of a representation of a very special kind was found to justify the person to whom it was made in holding a reasonable expectation that he would be afforded the opportunity of explaining his past conduct before it was taken into account against him when a decision on his future employment was made. But there is nothing in that decision which supports the case which the applicant seeks to make in the present case.

3. Even if I had been of the view that the Minister and his Delegate had been under a duty to observe the rules of natural justice, I would have been of the view that the applicant was, in fact, afforded natural justice before the decision was made to deport him. He was given an adequate opportunity of putting his case before the Minister. He knew, or ought to have known, that he needed permission to work in Australia and that he had not obtained that permission. In a report dated 17 June 1985 which was in the possession of the applicant and his legal advisers before the deportation order was made on 15 August 1985, it was stated that the applicant "had committed offences in becoming a prohibited non-citizen and by working without permission". He was given the opportunity of putting before the Minister any matters favourable to his case, and he could have answered those statements had he wished. It is plain on the evidence that the applicant had worked for a considerable period without permission and it is difficult to see what he could have said in answer to the statement that he had committed an offence by working without permission. In any event, it is by no means clear that the fact that the applicant had worked without permission took any part in the Minister's ultimate decision that he be deported.

4. In my opinion no basis has been shown for interfering with the decision to deport the applicant. The application must therefore be dismissed with costs.