Minister for Immigration & Ethnic Affairs v Arslan

[1984] FCA 241

Re: THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS AND JOHN DURRELL
And: RAFET ARSLAN and EROL AYDIN
Nos. G251-G255 of 1983
Administrative Law - Evidence - Practice and Procedure
6 ALD 512 / 55 ALR 361 / 4 FCR 73

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), St. John(1) and Morling(1) JJ.

CATCHWORDS

Administrative Law - judicial review - immigration - prohibited immigrants - application to review decision to refuse extension of temporary entry permits - evidentiary value of statement under s. 13 Administrative Decisions (Judicial Review) Act - no legitimate expectation - appeal allowed.

Administrative Decisions (Judicial Review) Act, 1977 ss. 5, 13

Migration Act 1958, s. 6

Administrative Law - Judicial review - Immigration - Prohibited immigrants - Application to review decision to refuse extension of temporary entry permit and decision to deport - Whether legitimate expectation - Migration Act 1958 (Cth), ss 6, 7, 13.

Evidence - Statement under s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) filed in court - Evidence only to the extent to which it constitutes admissions.

Practice and Procedure - Rules of Court, O. 54, r. 3 - Statement pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) filed in court - Not evidence of the facts contained therein except to the extent to which they are admissions.

HEADNOTE

Held: (1) A statement of reasons delivered pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Judicial Review Act) is not, when filed pursuant to O. 54, r. 3 of the Federal Court Rules 1979 (Cth), evidence of the facts contained therein except to the extent to which it may consist of admissions against the officer or Minister.

Sezdirmezoglu v. Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561, overruled.

Givaudan & Co. Ltd v. Minister of Housing and Local Government (1967) 1 WLR 250, considered.

(2) Having regard to the Minister's unconditional right to order deportation under the Migration Act 1958 (Cth), s. 18 and to his entitlement as a matter of absolute discretion to cancel a temporary entry permit at any time under the Migration Act 1958, s. 7(1), there is no legitimate expectation which arises in favour of persons who have entered Australia under temporary entry permits in relation to decisions of the Minister for Immigration and Ethnic Affairs not to grant further temporary entry permits and to deport them, at least in the absence of any representation or statements of a promissory nature made to them which might give rise to any such expectation.

HEARING

1984, June 12, 13; August 17. #DATE 17:8:1984

APPEAL

Appeal from judgment and orders of Beaumont J.

B.T. Sully Q.C. and P. Fleming, for the appellants.

D.E. Grieve Q.C. and J. Mancy, for the respondents.

Cur. adv. vult.

Solicitor for the appellants: Australian Government Solicitor.

Solicitors for the respondents: Boyd House & Partners.

G.F.V.

ORDER

1. The appeals be allowed.

2. The respondents pay the appellants' costs.

Appeal allowed with costs.

JUDGE1

These appeals are against decisions of a judge of the Court in which he set aside, on applications made under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") decisions made by the appellant John Durrell (an officer of the Department of Immigration and Ethnic Affairs) refusing to grant further temporary entry permits pursuant to s.6 of the Migration Act 1958 to the respondents and decisions pursuant to s.18 of that Act by the Minister of State for Immigration and Ethnic Affairs to deport the respondents.

1. The facts are set out in his Honour's judgment and it is unnecessary to recapitulate the whole of them. The respondents are Turkish citizens who were employed by a German corporation which was interested in establishing a Turkish language newspaper in this country. They entered Australia in 1981 pursuant to temporary entry permits which in due course expired. They were subsequently granted further temporary entry permits. On 24 March 1983 the appellant Durrell wrote to the solicitor for the respondents informing them of his decision to refuse a further extension of their temporary entry permits and indicating that deportation proceedings would have to be instituted if the respondents did not leave Australia within fourteen (14) days of the date of the letter.

2. Amongst the documentary material considered by Mr Durrell before making his decision was a report from another officer of the Department, Mr R.S. Henry, which reproduced allegations made against the German corporation (and some of the personnel who are currently working for it) by a rival Turkish newspaper. These allegations included the following:-
   
   

"Serious but unconfirmed allegations from a variety of official and other sources have been made against Tercuman and some of the personnel who are currently working for it. These include:

- the newspaper plans to channel money from Australia to support extremist political activity overseas;

- some personnel may be connected with the Grey Wolves - a right wing terrorist group, and are involved in illegal drug and arms trafficking."

That report became Exhibit A. It is convenient to refer to the allegations in Exhibit A as "the Grey Wolves allegations".

1. At the time of the writing of the letter of 24 March 1983 a report dated 15 March 1983 from Mr D.J. Crossland, another officer of the Department, had been made as the result of an interview with the proprietors of the Turkish newspaper from which the allegations in Exhibit A were reproduced. This report made more detailed allegations of a similar nature to those contained in Exhibit A. This report became Exhibit P. In the letter of 24 March 1983 Mr Durrell made no reference to the allegations made against the respondents in Exhibits A and P.

2. In a statement furnished by Mr Durrell in response to an application made by the respondents pursuant to s.13 of the Judicial Review Act no mention was made of the allegations in Exhibits A and P under the heading "My Findings on Material Questions of Fact". Under the heading "The Evidence or Other Material on which my findings are based" he included a reference to "Submissions to the former Minister from Mr R.S. Henry" dated 28 September 1982. This was a reference to Exhibit A. Under the heading "The Reasons for the Decision" he did not mention the Grey Wolves allegations.

3. Mr Durrell's expressed reasons for his decisions were confined to the length of time the respondents had been in Australia, breach of conditions of entry by taking employment, the prohibited immigrant status of the respondents and the circumstances relied upon by the respondents which did not, in his view, warrant the grant of further temporary entry permits.

4. At the hearing before the learned trial judge counsel for the appellants objected to the tender of Exhibit P on the ground that it had not been specifically referred to by Mr Durrell in the relevant s.13 statements. The appellants urged this court to hold that the trial judge should have rejected the tender because he was not entitled to infer that, before making the decisions referred to in his letter of 24 March 1983, Mr Durrell had knowledge of the allegations in Exhibit P. The argument at the trial was to the effect that, because there was no reference to Exhibit P in the s.13 statement, the judge should not infer that Mr Durrell had seen it.

5. At this point it is convenient to consider the status of the s.13 statement and its evidentiary value, if any. Order 54 Rule 3 of the Federal Court Rules requires that such a statement be filed where an application is made for review under the Judicial Review Act. It seems to us that the applicant for a review of a decision may extract from it, and use, such statements as are admissions in his favour but the officer, or Minister, whose decision is being reviewed, cannot use the statement as evidence of the facts contained therein in a self-serving way.

6. It is true that in Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (1983) 51 A.L.R. 561 at 570 Smithers J. said that a statement under s.13 is evidence of the reasons for the decision referred to in the statement. His Honour said:
   
   

"There is a preliminary question concerning the evidentiary status of the statement of reasons provided by the Minister on 15 September 1983. The statement was not in the form of an affidavit and was merely tendered at the commencement of the hearing. Some guidance as to the status of the reasons can be gleaned from Givaudan & Co. Ltd. v Minister of Housing and Local Government (1967) 1 WLR 250; (1966) 3 All ER 696. In that case the Minister was under a statutory duty to provide reasons pursuant to the Tribunals and Inquiries Act

1958. His Honour Mr Justice Megaw said (WLR at 259): 'The document containing the Minister's reasons is ... an important document, required by statute to be prepared for a particular and important purpose, and it must be, and no doubt is, regarded by the Minister as such. The whole of its contents must be assumed prima facie, at least, to have been inserted for a relevant purpose: namely, the setting forth with reasonable precision and clarity of matters which are relevant as indicating and explaining positively or negatively the reasons for the Minister's decision.' In line with the thrust of these comments I take the view that the statement of reasons provided by the Minister, unless effectively challenged, are evidence of the reasons for his decision.'

1. If one goes to Givaudan's Case, it is clear that, in making the statement relied upon by Smithers J., Megaw J. (as he then was) was dealing with an argument on behalf of the Minister that the Minister did not take an irrelevant Bill or an Act into account in making his decision. Megaw J. used the Minister's statement of reasons as an admission against him. In our view, the case is not authority for the proposition that the statement is prima facie evidence of the facts stated therein.

2. In any event we do not think that what was said by Smithers J is inconsistent with the view that we have already expressed that the making of a decision is not evidence of the facts that may underlie the decision itself. Thus a statement in a s.13 statement that the Minister's decision was based upon his opinion that a person was of bad character would be evidence only of the fact that the Minister held that opinion. It would not be evidence that the person was, in fact, a person of bad character.

3. The substantial questions argued on the hearing of the appeal were, firstly, whether the trial judge was in error in inferring that Mr Durrell saw Exhibits A and P and took into account the Grey Wolves allegations in reaching his decisions without giving either of the respondents an opportunity to answer them and, secondly, whether he erred in holding that the respondents were therefore denied natural justice.

4. As to the first question, we do not think that his Honour erred in drawing the inference that the allegations came to Mr Durrell's notice. In inferring that Exhibit P came to the notice of Mr Durrell, the trial judge purported to apply the principle ennunciated in Jones v Dunkel and Anor. (1959) 101 C.L.R. 298 and relied upon the absence of evidence from the appellants that Exhibit P was not before Mr Durrell. That case is authority for the proposition that, where the evidence on a material issue is in conflict and leaves the tribunal of fact in doubt, the failure of one party to call a witness whom he would normally be expected to call to give direct evidence on the issue may lead to the inference that such witness would not assist in proving the version of facts contended for by that party, and therefore acceptance of the opposing version is made easier. Such a situation may well not have existed in the present case. Nevertheless in our view, the inference was open to be drawn from the facts not in dispute "judged rationally upon common experience": Martin v Osborne (1936) 55 C.L.R. 367 at 375 per Dixon J. The circumstances from which that inference was open to be drawn were Mr Durrell's position and duties, the acknowledgment that Exhibit A containing similar allegations was seen by him, the gravity of the allegations, and the fact that Exhibit P was extracted from the Departmental file and bore a date well antecedent to Mr Durrell's decisions. In the ordinary course of performing his duties, Mr Durrell would have read the file before making his decisions.

5. However, we are in some doubt whether it was proper to draw the inference that Mr Durrell was not only aware of the allegations, but also took them into account adversely to the respondents. He may well have taken the view that the allegations were unsubstantiated, particularly as they originated from a competitor newspaper. He may also well have made his decisions on other facts as to which there was no dispute. However, we do not need to reach a final conclusion on this matter because we are of the view that the circumstances surrounding the applications to extend the entry permits did not give rise to such a "legitimate expectation" as required the application of the principles of natural justice.

6. Counsel for the respondents was asked to formulate the precise terms of the "legitimate expectation" for which he contended. He formulated it as follows:
   
   

"The legitimate expectation of the respondents was that the Minister or the Department would deal with and determine their applications for entry permits in accordance with stated policy and that no consideration adverse to the respondents and apparently bearing on the matter would be taken into account without the respondents being afforded an opportunity to show cause in respect of that matter."

1. We do not think that the facts of the present case gave rise to any such legitimate expectation. At the expiration of the last temporary entry permits issued to them the respondents became prohibited immigrants - see Migration Act s.7(3). Speaking of the Minister's power to deport in s.18 of the Migration Act 1958 Gibbs J. (as he then was) said in Salemi v Mackellar (No.2) (1977) 137 C.L.R. 396 at 420:
   
   

"...s.18 gives the Minister an unconditional right to order the deportation of a prohibited immigrant. The section does not limit the circumstances or occasion on which the Minister may exercise the power; he is not required to determine any question, or to form any satisfaction or opinion, before making the order -- the matter is left entirely to his discretion."

And at p.421 his Honour said:

"The scheme of the Act shows that the Parliament has drawn a sharp distinction between the deportation of prohibited immigrants on the one hand, and of aliens and other immigrants on the other hand".

1. Gibbs J. drew a distinction between the unfettered discretion contained in s.18 and the conditional and uncontrolled power to order the deportation of aliens and immigrants under ss.12 and 14 of the Migration Act.

2. Since the term "legitimate expectation" was first adopted by Lord Denning M.R. in Schmidt v Secretary of State for Home Affairs (1960) 2 Ch. 149 there have been many cases in which the meaning of the phrase has been examined and its content discussed. Some of these cases are referred to in Cole v Cunningham (1983) 49 A.L.R. 123 at p. 129 et seq. In Heatley v Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487 at p.509 Aickin J. observed that the true extent of the notion that an expectation may be the foundation of a right to compel observance of the relevant principles of natural justice has not yet been fully worked out or stated with precision. And in Cole v Cunningham (supra) a Full Court of this Court, considering the circumstances in which a "legitimate expectation" could be said to arise said that "The gate (was) ajar ...".

3. It may be conceded that the category of cases in which a legitimate expectation will be found to have been established is not closed. But we do not think that the respondents' cases come within the category. Given the existence of the Minister's unconditional right to order deportation under s.18 of the Migration Act it is difficult to see how the respondents could have had any expectation of the kind formulated by their counsel. Indeed, the existence of such a legitimate expect ation would have been inconsistent with the unconditional right of the Minister to order their deportation. This inconsistency is reinforced by the provisions of sub-s. 7(1) of the Migration Act, which provides that the Minister may, in his absolute discretion, cancel a temporary entry permit at any time.

4. The learned trial judge thought that the circumstances of the present case did give rise to a legitimate expectation on the part of the respondents. He was of the view that, whilst they were always given to understand that the Department was prepared to give, and did give, them adequate opportunity to put submissions, they had no means of knowing that the Department was being urged to deport them by other members of the local Turkish community who were making allegations against them of a most serious kind. We see the force of this reasoning, but we do not think that it sufficiently counters the effect of the provisions of the Migration Act to which we have referred. We do not think there is anything in the grant of the previous entry permits that could have led the respondents to expect that the Minister or his advisers would give them notice of any material, however prejudicial, that might be considered by them in deciding whether to grant them further temporary entry permits.

5. It is true that a letter of 18 May 1983 from a departmental officer to the solicitor for the respondents invited submissions as to the respondents' personal circum stances. But there was no promise in that letter that other matters would not be considered. There was no representation made to the respondents, such as was made in Cole v Cunningham (supra, at p.133). That is to say, there was no representation which gave rise to a reasonable expectation of the kind contended for on behalf of the respondents. Nor was there any statement of a promissory nature or any undertaking such as are referred to in Attorney-General of Hong Kong v Ng Yuen Shiu (1983) 2 W.L.R. 735.

6. We do not need to consider in this case whether circumstances could arise in which the grant of a temporary entry permit would generate a legitimate expectation of renewal. Cf Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 40 A.L.R. 341 at p.348 per Bowen C.J. and Franki J. at p.358 per Davies J. It is sufficient for the purposes of the present case to find, as we do, that no legitimate expectation arose in the circumstances proved by the respondents. Those circumstances included the issue of a document styled "The New Review Rights", but there is nothing in the issue of that document which, in our opinion, advances the respondents' case. Accordingly the appeals should be allowed with costs.