Minister for Immigration & Ethnic Affairs v Gaillard, Gitsadawan

[1983] FCA 215

Re: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
And: GITSADAWAN GAILLARD (1983) 78 FLR 103
No. ACT G16 of 1983
Administrative Law - Immigration and Aliens

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Sheppard(2) and Neaves(3) JJ.

CATCHWORDS

Administrative Law - judicial review - cancellation of a temporary entry permit and deportation order made - whether the Minister is bound to comply with the rules of natural justice in making a decision to cancel a temporary entry permit pursuant to s.7(1) of the Migration Act 1958.

Migration Act 1958: ss5, 6, 7, 8, 11B, 14, 18, 31B

Administrative Decisions (Judicial Review) Act 1977: s5

Administrative Law - Quasi-judicial tribunals - Rules of natural justice - Exclusion of rules by statute - Minister of State revoking temporary permit - Absolute and unfettered discretion - Absence of loss of right or interest or legitimate expectation of benefit - Migration Act 1958 (Cth), s. 7(1).

Immigration and Aliens - Prohibited immigrants - Temporary entry permit - Revocation by Minister of State - Whether rules of natural justice apply - Absolute discretion - No loss of right or interest or legitimate expectation of benefit - Migration Act 1958 (Cth), s. 7(1).

HEADNOTE

Held: The principles of natural justice do not apply to the power to cancel a temporary entry permit, at any time, contained in s. 7(1) of the Migration Act 1958, in the absence of circumstances giving rise to a legitimate expectation that those principles should apply.

Salemi v. MacKellar (No. 2) (1977) 137 CLR 396; R. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461, applied.

Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149 (dicta Denning M.R.); Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, distinguished.

HEARING

Canberra, 1983, July 13; August 29. #DATE 29:8:1983

APPEAL.

Appeal from the decision of a single judge of the Federal Court of Australia (Davies J.) made under the Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5 setting aside the cancellation of a temporary entry permit and a deportation order under s. 7(1) the Migration Act 1958 (Cth).

L. S. Katz, for the appellant.

G. J. Lunney, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: Crossin & Co.

B.A.G.

ORDER

1. The appeal be allowed with costs.

2. The order of 31 March 1983 be set aside and that in lieu thereof it be ordered that the application be dismissed with costs.

Orders accordingly.

JUDGE1

This is an appeal from an order of a single judge of this court made on 31 March 1983 by which his Honour, pursuant to an application made by Gitsadawan Gaillard ("the applicant") under s.5 of the Administrative Decisions (Judicial Review) Act 1977, set aside the decisions of the Minister of State for Immigration and Ethnic Affairs ("the Minister") firstly under s.7(1) of the Migration Act 1958 ("the Act") that a temporary entry permit then held by the applicant be cancelled and secondly that she be deported from Australia.

Although the application raised a number of grounds upon which review was sought the only ground pursued before the learned trial judge was that, in making his decisions, the Minister did not observe the principles of natural justice, that he did not give to the applicant adequate notice of his intention to consider the cancellation of her entry permit and her deportation from Australia and that, before making his decisions, he did not give her an adequate opportunity to be heard on these matters.

The applicant, who was then Gitsadawan Potikum, applied in 1978 for a temporary entry permit and, on 27 October 1978, signed an acknowledgement which, in its English form, read:
"I, MISS GITSADAWAN POTIKUM hereby acknowledge, in relation to my engagement in the household in Australia of MRS (X), ATTACHE that my temporary entry and stay in Australia have been approved by the Australian Government on the strict condition that:

(a) I will be employed on domestic duties in the household of MRS (X), ATTACHE

(b) I have been made aware in writing by or on behalf of MRS (X), ATTACHE of the conditions of my employment in his/her household and I have fully understood and have accepted those conditions;

(c) I undertake to depart from Australia in accordance with the travel arrangements made for me by or on behalf of my diplomatic or consular employer upon the cessation of my employment in his/her household, whether upon the termination of his/her official posting to Australia or through cessation of my employment for other reasons;

(d) I will not be eligible to remain in Australia as a resident or in any other capacity."

A temporary entry permit, valid for twelve months, was granted to the applicant and she arrived in Australia on 5 January 1979.

She commenced to live, and work, at an embassy in Canberra. Subsequent temporary entry permits were issued from time to time. The last such temporary entry permit was issued on 30 October 1980 and was due to expire on 30 January 1983.

At the end of July 1982, the applicant married Mr Robert Andre Gaillard and left the embassy.

The applicant and Mr Gaillard were interviewed by departmental officers on 2 December 1982. On 10 January 1983, the Minister cancelled the then existing temporary entry permit held by the applicant and ordered that she be deported from Australia.

At the outset of the hearing of the appeal, counsel for the Minister stated that his client did not seek to rely upon the alternative grounds of appeal that the requirements of natural justice had, in any event, been complied with, but rested his case upon the submission that his Honour erred in holding that the Minister was bound to comply with the rules of natural justice in making a decision to cancel the temporary entry permit under s.7(1) of the Act. S.7(1) reads as follows:
"The Minister may, in his absolute discretion, cancel a temporary entry permit at any time by writing under his hand."

S.6(2) of the Act provides that an officer may, in accordance with this section and at the request or with the consent of an immigrant, grant to the immigrant an entry permit. By s.5(1), "officer" in relation to the exercise of any power or the discharge of any duty or function under the Act means:
"(a) an officer of the Department of Immigration and Ethnic Affairs;

(b) a person who is an officer for the purposes of the Customs Act 1901;

(c) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or

(d) any other person who is, or who is included in a class of persons who are, authorized by the Minister to exercise that power or to discharge that duty or function:"
S.6(6) and (6A) deal with temporary entry permits as follows:
"(6) An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions.

(6A) Without limiting the conditions subject to which an entry permit referred to in sub-section (6) may be granted, such a permit may be granted subject to a condition imposing restrictions with respect to the work that may be performed by the holder in Australia, including restrictions on performing any work, or work other than specified work or work of a specified kind, without the permission, in writing, of an authorized officer."

There is no provision in the Act which itself invalidates a temporary entry permit granted subject to a condition imposing restrictions with respect to work where the holder breaches that condition. Such a breach is made an offence under the Act (s31B). This may be compared with the provision in s.8(3) that an immigrant who was exempted from the operation of Division 1 of Part 11 of the Act, dealing with entry permits, if, when he entered Australia, he was, for example, a diplomatic representative of a country other than Australia, becomes a prohibited immigrant if he ceases to be such a diplomatic representative.

The holder of a temporary entry permit who is in breach of a work condition is subject, as are all holders of temporary entry permits, to the provisions of s.7(1) and (3) of the Act which are:
"(1) The Minister may, in his absolute discretion, cancel a temporary entry permit at any time by writing under his hand.
. . . . . . . . . .
(3) Upon the expiration or cancellation of a temporary entry permit, the person who was the holder of the permit becomes a prohibited immigrant unless a further entry permit applicable to him comes into force upon that expiration or cancellation."

As has been seen the Act confers upon the wide classes of persons included in the word "officer", who are stationed throughout Australia, the power to grant a temporary entry permit, including the power to specify the period for which it shall be expressed to operate, and the power to decide whether it is to be subject to any and what conditions, under sub-sec (6) or to any work conditions, under sub-sec (6A).

The holder of a temporary permit takes it subject to any conditions which are expressed in it and subject to the over-riding power given to the Minister under s.7(1). It is for the Minister to decide whether he wishes to exercise the power of delegation given to him by s.66D, which was inserted in the Act by No 117 of 1979 (s.27).

In the present case the Minister himself by writing under his hand cancelled the temporary entry permit held by the applicant, some 20 days before it was due to expire. The parties joined in stating on the hearing of the appeal that the applicant's permit, which had not been put in evidence, did not include any condition referring to restrictions with respect to work, under s.6(6A), or any other condition under sub-sec (6).

There are many instances in the Act in which a power is conferred by the use of the word "may". s.11B, inserted in the Act by No 117 of 1979, provides:-
"The Minister or an authorized officer may, in his absolute discretion, cancel a visa or return endorsement at any time by writing under his hand."

The words in s.7(1) "at any time" seem to make it clear that the power given by that sub-section may be exercised before the expiration of the period stated in the temporary entry permit. The words "in his absolute discretion" are additional to the word "may" which in many instances stands alone in the Act. In accordance with the general principles of construction, those words should ordinarily be given some effect.

"It is a good general rule in jurisprudence", said the Judicial Committee in Ditcher v Devison (1857 11 Moore P.C. 325, 337), "that one who reads a legal document whether public or private, should not be prompt to ascribe-should not, without necessity or some sound reason, impute-to its language tautology or superfluity, and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use".

The words "in his absolute discretion" should not be regarded as surplusage. In my opinion, the discretion conferred upon the Minister is unqualified, unconditional, untrammelled (see Shorter Oxford English Dictionary).

In Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 the Commission was given an absolute discretion, "in the sense that they may devise their own criteria and no appeal is available against their decision, whether it be mistaken or not" (see per Aickin J at p515) and the court held that, in the context of the Tasmanian Racing and Gaming Act, "fairness requires that the person affected" by a proposed warning - off notice, "should, save in an emergency, be given notice by the Commission of its intention to issue a warning - off notice and of the grounds of that proposed action and should be afforded an opportunity to make representations to the Commission on his own behalf, which it must consider before taking action" (at p516).

As Aickin J pointed out, in Heatley's case (at pp499-500), "it is plain that each statute must be separately examined as a whole and that, as Barwick C.J said, 'There is no rule which can provide in every case an answer by its mechanical application' (1976) 136 C.L.R. at p111)."

Light is thrown upon the Act presently under consideration by an examination of the opinions expressed by the High Court in the cases of Salemi (1977) 137 C.L.R. 396 and Ratu (1977) ibid, 461. The Court was there considering s.18 of the Act which provides that "the Minister may order the deportation of a person who is a prohibited immigrant under any provision of this Act".

Gibbs, J., as he then was, said in Salemi's case (at p420):
"This is a field in which it is unwise to generalize, but the fact that the power is conferred quite unconditionally is a circumstance that suggests - not necessarily conclusively - that the principles of natural justice are not intended to apply".

His Honour said (at p421):
"In my opinion the circumstances as a whole lead to the conclusion that the Minister is not bound to afford a hearing to a prohibited immigrant before ordering his deportation under s.18. The very security of the nation may require that the executive should have the power to decide what aliens shall be permitted to enter and remain in Australia, and to expel those who have no right to be in the country. Reasons of security may make it impossible to disclose the grounds on which the executive proposes to act. If the Minister cannot reveal why he intends to make a deportation order, it will be difficult to afford the prohibited immigrant a full opportunity to state his case, for he may not know what it is that he has to answer. This is not to say that it might not be practicable for the Parliament to provide a procedure for the review of deportation orders made under s.18, but the Parliament has not done so. 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. The Act gives to the Minister in the case of a prohibited immigrant a power which is on its face unfettered and which stands in contrast to the conditional and controlled powers given by ss. 13 and 14. Having regard to all these considerations, I conclude that the power given by s. 18 is not subject to an obligation to observe the principles of natural justice, and that the Minister may issue a deportation order under that section without first giving the person affected an opportunity to be heard."

Aickin J (at p460) expressed his agreement with what Gibbs J had said "with respect to the general principles governing the matter and their application to the present case, and with his conclusion that the power given by s.18 is not limited by any requirement for the observation of the principles of natural justice, and that there is no requirement that the Minister should provide some opportunity for a prohibited immigrant to be heard before making a deportation order".

In Ratu's case, Gibbs J (at p470) re-affirmed the views he had expressed in Salemi. Mason J (at p478-480) relied upon the contrast between s.14 and s.18, and (at p480) said:-
"And it is difficult to see why an obligation to give advance notice of the grounds upon which an application for a permit will be refused should be imported into the grant or refusal of such a permit in the ordinary course of things. As a temporary entry permit may be cancelled at any time as a matter of absolute discretion (s.7(1)), the grant or refusal of such a permit must itself be a matter of absolute discretion."

Aickin J (at p485) reiterated the opinions which he had expressed in Salemi and went on to say:
"We were pressed with an argument based on the difference between the words 'may, in his absolute discretion,' as applied to the Minister's power to cancel a temporary entry permit under s.7(1), and the words 'may order the deportation' in s.18. It was said that this indicated that the power under s.18 was controlled by the requirements of natural justice - I cannot accept this argument because it appears to me that the 'absolute' nature of the power under s.7(1) points to the power under s.18 having a like character."

Reliance was placed by the applicant upon the dicta of Lord Denning, M.R., in Schmidt v Secretary of State, Home Affairs (1969) 2 Ch 149.

Speaking of a possible obligation to give a person who is affected by a decision an opportunity of making representations, Lord Denning said:
"It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say." (at p170)
and went on to say, (at p171) in respect of a foreign alien:
"He has no right to enter this country except by leave; and if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time."

The Court of Appeal in Schmidt's case was dealing with the position of foreign aliens whose periods of leave to stay in the United Kingdom had expired.

In my opinion, the applicant, having been given a temporary entry permit which was subject to cancellation by the Minister in his absolute discretion at any time, having obtained entry into Australia on the faith of the acknowledgment which she signed, and having herself brought to an end her employment which was a "strict condition" of the approval of her entry into and stay in Australia, does not have a legitimate expectation, of being allowed to remain in Australia, of which it would not be fair to deprive her without hearing what she has to say. The Minister was not bound to comply with the rules of natural justice in making his decision to cancel the applicant's temporary entry permit.

I would allow the appeal with costs, and order that the order of the court of 31 March 1983 be set aside and that in lieu there of it be ordered that the application be dismissed with costs.

JUDGE2

In this matter I have had the advantage of reading the judgments to be delivered by the other members of the Court. I am in agreement with their reasons and conclusions.

The learned primary judge was of opinion that the right conferred by a temporary entry permit was "a most significant right". Later he described it as "a most valuable right". I agree that that will be so in many cases; it is so here, the permit having been issued on 30 October, 1980, for a period of two years and three months. But often temporary entry permits will be for very short periods, in some cases for periods of only a few days or even a few hours. If the matter is approached as a pure question of construction, as it should be, subject to the respondent's alternative submission based on "legitimate expectation", one ought not give the section a meaning and operation which will oblige the affording of natural justice in some cases and not in others. It is either to be afforded in all cases or in none. For that reason, I am unable to place the same emphasis on the value of the right conferred by the temporary entry permit in this case as did the learned primary judge.

It is that consideration, coupled with the width of the discretion which the words of the section show the Minister was intended to have and the absence of specific criteria therefrom, which principally leads me to differ from the view formed by his Honour. The fact that the subject matter of the legislation is the control of aliens seeking to enter and remain in Australia, along with the considerations of national security which may be involved in some cases, provides an additional reason why I think the appeal should succeed. Often there will be the need to act quickly and there may be reasons associated with security which would make it most difficult for natural justice to be afforded in any real sense.

As to "legitimate expectation", I do not wish to add to what has been said in the other judgments. Apart from any question of the construction of the statute, there will be cases where natural justice should be afforded because of their particular circumstances; cf. Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 A.L.R. 341 per Bowen C.J. and Franki J. at p.348 and per Davies J. at p.358. I refer also to Attorney-General of Hong Kong v. Ng Yuen Shiu (1983) 2 All E.R. 346, where the Privy Council have equated "legitimate expectation" with "reasonable expectation" (p.350). However, I am satisfied that the respondent here has not demonstrated any such expectation.

I agree in the orders proposed by the other members of the Court.

JUDGE3

On 10 January 1983 the Minister for Immigration and Ethnic Affairs, in pursuance of sub-section 7(1) of the Migration Act 1958, purported to cancel the temporary entry permit granted to the respondent, Gitsadawan Gaillard (then Gitsadawan Potikum), on 30 October 1980 and, on the basis that the respondent was in consequence a prohibited immigrant, ordered pursuant to section 18 of that Act that the respondent be deported from Australia. The respondent applied under section 5 of the Administrative Decisions (Judicial Review) Act 1977 to review those decisions of the Minister and this Court, constituted by a single Judge, ordered that the decisions be set aside. From that order the Minister has appealed.

The respondent, who is a citizen of Thailand and an alien within the meaning of that expression as defined in sub-section 5(1) of the Migration Act 1958, arrived in Australia on 5 January 1979 and was granted a temporary entry permit for a period of 12 months. The entry permit was unconditional except for the specification of the period during which it authorised the respondent to remain in Australia. It was granted to enable the respondent to take up a position as a domestic servant in the household of the Thai Attache at Canberra and followed the signing by the respondent of a document setting out certain undertakings concerning her entry and temporary stay in Australia. Further temporary entry permits were granted to the respondent, the last of those permits being that dated 30 October 1980 which authorised the respondent to remain in Australia until 30 January 1983.

At the end of July 1982 the respondent left her employment with the Thai Attache and went through a form of marriage with Mr. Robert Andre Gaillard, an Australian citizen. The material that was before the Minister at the time the challenged decisions were made is set out in some detail in the reasons for judgment of the judge at first instance and it is unnecessary to repeat it here. None of the material was disputed on the hearing of the appeal. For present purposes it is sufficient to set out paragraphs 14 and 15 of the submission to the Minister. Paragraph 14 was headed "Summary" and paragraph 15 "Recommendation". The paragraphs were as follows:-
"14 Ms Potikum was admitted to Australia to be a domestic in Canberra at the home of a Thai Attache and was authorised to remain in Australia for that purpose until 30.1.83. She absconded from her employment on 29.7.82 and married an Australian citizen on 31.7.82. The couple do not live together and the statements made by both parties point strongly to the probability that the marriage was contrived solely to enable Ms Potikum to remain in Australia as a resident, although she has not actually made an application for resident status on the basis of marriage. In any event Ms Potikum has admitted to a 'husband' and child in Thailand which indicates there may be a possibility that the marriage to Mr. Gaillard may be bigamous. Certainly Ms. Potikum makes it plain that she is not about to leave Australia voluntarily.

15 In all the circumstances, I recommend that you sign the attached form of cancellation of the temporary entry permit issued to Ms Potikum and that you sign the attached order for her deportation to be invoked as soon as practicable."

The principal question at issue is whether, before coming to his decisions, the Minister should have given the respondent notice of the matters which would be considered against her and afforded her a fair opportunity to put submissions respecting the cancellation of the entry permit and her deportation. The judge at first instance distinguished the decisions of the High Court in Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396 and The Queen v. MacKellar; Ex parte Ratu (1977) 137 C.L.R. 461 on the basis that those cases were dealing with section 18 of the Migration Act 1958 and should not be read as determining the position under sub-section 7(1) of that Act. His Honour held that sub-section 7(1) confers a discretion which is to be exercised in accordance with the principles of natural justice. His Honour also held that, although the respondent had been interviewed by an officer of the Department of Immigration and Ethnic Affairs, that interview did not provide an adequate opportunity to the respondent to put forward a case as to why her then current temporary entry permit should not be cancelled or as to why she should not be deported. This latter finding is not challenged.

By virtue of sub-section 6(1) of the Act an immigrant who, not being the holder of an entry permit that is in force, enters Australia becomes a prohibited immigrant. An officer as defined may, in accordance with section 6 and at the request or with the consent of an immigrant, grant to the immigrant an entry permit (sub-section 6(2)). The Minister may, in accordance with section 6 and at the request or with the consent of an immigrant who has entered Australia, grant to the immigrant an entry permit other than a temporary entry permit (sub-section 6(2A)). An entry permit is to be in a form approved by the Minister and to be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both (sub-section 6(3)). An entry permit may be granted to an immigrant either upon his arrival in Australia or, subject to section 6A, after he had entered Australia (sub-section 6(5)). Section 6A limits the circumstances in which an entry permit may be granted to an immigrant after his entry into Australia. An entry permit that is intended to operate as a temporary entry permit is to be expressed to authorise the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions (sub-section 6(6)). The expression "temporary entry permit" means an entry permit referred to in sub-section 6(6) - see the definition in sub-section 5(1).

Section 7 should be set out in full. It provides:-
"(1) The Minister may, in his absolute discretion, cancel a temporary entry permit at any time by writing under his hand.

(2) At any time while a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder and where such a further entry permit is granted while a temporary entry permit is in force, the further entry permit shall come into force only upon the expiration or cancellation of the existing entry permit.

(3) Upon the expiration or cancellation of a temporary entry permit the person who was the holder of the permit becomes a prohibited immigrant unless a further entry permit applicable to him comes into force upon that expiration or cancellation.

(4) Notwithstanding section ten of this Act, a person who has become a prohibited immigrant by virtue of the last preceding sub-section ceases to be a prohibited immigrant at the expiration of a period of five years from the time at which he became a prohibited immigrant unless, at the expiration of that period, a deportation order in relation to him is in force."

Section 10 provides that a person who has become a prohibited immigrant ceases to be a prohibited immigrant if and when an entry permit or further entry permit is granted to him, and not otherwise.

Division 2 of Part II of the Act (comprising sections 12 to 22 inclusive) is headed "Deportation". Section 12 gives the Minister power to order the deportation of an alien who has been convicted in Australia of one of the crimes specified in that section. Section 13 authorises the deportation of an immigrant who has been convicted in Australia of one of the offences specified in the section, if the offence was committed within five years after any entry by him into Australia, and the deportation of an immigrant who is, within five years after any entry by him into Australia, an inmate of a mental hospital or public charitable institution. Section 14 authorises the deportation of an alien if it appears to the Minister that the conduct of the alien (whether in Australia or elsewhere) has been such that he should not be allowed to remain in Australia. The section also authorises in certain circumstances the deportation of an immigrant who entered Australia not more than five years previously. The Minister is, however, enjoined from ordering the deportation of a person under section 14 unless he has first served on that person a notice informing that person that he proposes to order his deportation on the ground specified in the notice unless that person requests, by notice in writing to the Minister, within thirty days after receipt by him of the Minister's notice, that his case be considered by a Commissioner appointed for the purpose of that section. If the person so requests, the Minister may summon that person to appear before a Commissioner who is to make a thorough investigation of the matter and report whether he considers that the specified ground has been established. The Commissioner is to be a judge, a former judge, or a barrister or solicitor of not less than five years' standing. The Minister may not order deportation unless the Commissioner reports that he considers that the ground specified in the notice has been established.

Section 18 provides:-
"The Minister may order the deportation of a person who is a prohibited immigrant under any provision of this Act."

A decision of the Minister under section 12 or section 13 is, subject to the limitations contained in section 66E, reviewable by the Administrative Appeals Tribunal (section 66E). That section, which replaced the provisions first enacted in 1975 as Part XXII of the Schedule to the Administrative Appeals Tribunal Act 1975, also provides for the review of decisions of the Minister under section 48 of the Migration Act 1958 which enables the Minister to direct a person not to act as an immigration agent. No provision is made for the review of decisions under, inter alia, sections 7, 14 or 18.

During the course of argument various factors were identified as being relevant to a consideration of the question whether, in exercising the power conferred by sub-section 7(1) to cancel a temporary entry permit, the Minister was bound, as a matter of law, to give the holder of such a permit notice of the matters which would be considered in making that decision and a fair opportunity to put submissions why the power should not be exercised. It is not suggested that any single factor is decisive: some strongly support the view that the power of the Minister under sub-section 7(1) is one that he may exercise free from any duty to observe the principles of natural justice. Others point in the opposite direction. The task for the Court is fundamentally one of statutory construction, giving due weight to each of the relevant factors.

The first relevant matter involves an examination of the nature of the interest to be affected by the exercise of the power conferred by sub-section 7(1). The Act, as I have said, provides for the grant of entry permits permitting the persons to whom they are granted to enter Australia or to remain in Australia or both. Entry permits are of two kinds: those specifying a period of time during which the person to whom it relates is authorised to remain in Australia and those which contain no such limitation. A permit of the former kind is referred to in the Act as a "temporary entry permit" and the Court is not here concerned with permits of the latter kind. There is in the Act no provision authorising the cancellation of an entry permit other than a temporary entry permit.

The interest that an immigrant derives from the grant to him of a temporary entry permit is simply an authority to enter and remain in Australia for the specified period, upon any conditions subject to which it is granted and subject to the power of the Minister, in his absolute discretion, to cancel the permit at any time. The statute does not expreslly place any limitation upon the time, minimum or maximum, for which a temporary entry permit may be granted though, perhaps, some limitation is to be implied from the description of the permit as temporary. In practice temporary entry permits are granted for varying periods, some extremely short. In some cases the period is related to the time necessary to carry out a particular activity, be it in the nature of academic study or employment or otherwise. In other cases the period will have relation to what is necessary to enable the person concerned to transit through the country in the course of travel for business or pleasure. The circumstances are of infinite variety and defy classification in any relevant sense. It cannot, however, be said with any justification that the nature of the interest which may be affected by the exercise of the power conferred by sub-section 7(1) is in all cases something of great value or significance. Its value and significance will vary from case to case according to its particular facts.

Another matter for consideration concerns the circumstances in which the interest of the holder of a temporary entry permit can be affected by the exercise of the power. I have already referred to the very wide terms in which the discretion is conferred. What is of particular significance, however, is the absence of any criteria in accordance with which that discretion is to be exercised and the lack of prescription of any facts, matters or circumstances that the decision maker is bound to consider or take into account. In pressing this consideration upon the Court counsel for the appellant, in the course of his helpful argument, sought to draw an analogy in this respect between the power conferred by sub-section 7(1) and that conferred by section 18 dealt with in the decisions of the High Court to which I have already referred. It is clear that the absence from section 18 of any express limitations upon the Minister's power to deport was a factor which those Justices of the High Court who held that the Minister in exercising that power was not bound to comply with the principles of natural justice regarded as of particular significance: see Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396 per Gibbs J. at p. 420 (with whose reasons for judgment Barwick C.J. and Aickin J. agreed); The Queen v. MacKellar; Ex parte Ratu (1977) 137 C.L.R. 461 per Mason J. at p. 479. It is of some interest to note that in the latter case an argument was presented on behalf of the applicants that, whereas the power conferred by sub-section 7(1) was granted in such absolute terms as to indicate that the power was not controlled by the requirements of natural justice, a different conclusion should be reached in relation to section 18 because of the differences in language between the two provisions: see per Aickin J. at p. 485. However that may be, the fact that a statute confers an unfettered discretion has frequently been regarded as an indiciation that the principles of natural justice have no application; see F.A.I. Insurances Ltd. v. Winneke (1982) 41 A.L.R. 1 per Mason J. at p. 15 and the cases there cited.

It is also relevant to take into account that the power with which the Court is concerned is a power to cancel an authority or privilege which has been granted, an authority or privilege which will, in the absence of any exercise of the power in question, continue until the expiration of the time specified in the entry permit. There seems no doubt that the principles of natural justice have no place in the processes leading to the grant or refusal of a temporary entry permit (see The Queen v. MacKellar; Ex parte Ratu (1977) 137 C.L.R. 461 per Mason J. at p. 480) but the considerations are not necessarily the same when one is considering a power to cancel an existing permit. This factor, taken by itself, clearly points in the direction of importing into the power the limitations derived from the application of the rules of natural justice but in considering the weight which should be given to it one must bear in mind the matters referred to earlier in this judgment concerning the nature of the interest which may be affected by the exercise of the power.

Counsel for the appellant also pressed upon the Court the contrast between section 14 and sub-section 7(1) and submitted that an interference can be drawn from the presence in section 14 of express limitations upon the exercise of the Minister's power derived from that section. It was sought to draw the inference from the absence of any similar limitations in sub-section 7(1) that the Parliament should be taken to have intended that the exercise of the power conferred by sub-section 7(1) is not to be circumscribed by a requirement to observe or comply with the principles of natural justice. The contrast between section 14 on the one hand and section 18 on the other was regarded as of significance in the reasoning of the Justices of the High Court who held in the cases already cited that the power conferred by section 18 is not subject to an obligation to observe those principles. Sections 14 and 18 were both provisions conferring a power to deport and the comparison was, therefore, of greater significance than is the case when one is contrasting the power to deport under section 14 with the power to cancel a temporary entry permit under sub-section 7(1). Nevertheless, the different approach by the Parliament is a significant matter and tends to support the view that the principles of natural justice are not to be imported by implication into sub-section 7(1). Counsel for the appellant also sought to draw an inference from the provisions, already referred to, originally enacted as Part XXII of the Schedule to the Administrative Appeals Tribunal Act 1975 and now to be found in section 66E of the Migration Act 1958 providing for decisions of the Minister under sections 12, 13 and 48 to be reviewable by the Administrative Appeals Tribunal. These provisions are concerned with rights of review after a decision is made in exercise of a power conferred by the Act and do not, in my view, assist in determining the question at issue in the present appeal.

Reliance was also placed upon those considerations concerning national security which the Justices of the High Court forming the majority in the cases cited considered of significance in reaching the conclusion that the power to deport conferred on the Minister by section 18 of the Act is not subject to an obligation to observe the principles of natural justice. Those considerations are conveniently stated by Gibbs J. (as he then was) in Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396 at p. 421 as follows:-
"In my opinion the circumstances as a whole lead to the conclusion that the Minister is not bound to afford a hearing to a prohibited immigrant before ordering his deportation under s. 18. The very security of the nation may require that the executive should have the power to decide what aliens shall be permitted to enter and remain in Australia, and to expel those who have no right to be in the country. Reasons of security may make it impossible to disclose the grounds on which the executive proposed to act. If the Minister cannot reveal why he intends to make a deportation order, it will be difficult to afford the prohibited immigrant a full opportunity to state his case for he may not know what it is that he has to answer."

Mason J. expressed himself to similar effect in The Queen v. MacKellar; Ex parte Ratu (1977) 137 C.L.R. 461 at p. 481. It can be said that those considerations are only of significance when considering a power of deportation and are of little assistance in considering a power to cancel a temporary entry permit. But it must be remembered that the power to cancel the temporary entry permit where one is held is a necessary step as part of the process of deportation and its significance is placed in proper perspective when one has regard to the circumstance mentioned by Aickin J. in The Queen v. MacKellar; Ex parte Ratu, ibid. at p. 486, that a decision to revoke a temporary entry permit can be directed to no other purpose than the deportation of the person concerned.

The last of the factors relied upon is that the power of cancellation of a permit and the consequential power to deport could be frustrated if the holder of a temporary entry permit had the right to receive notice and to make representations prior to the power of cancellation being exercised, there being no power to arrest and detain the person pending consideration of his case.

Having considered the whole of the circumstances I have come to the conclusion that, in exercising the power conferred upon him by sub-section 7(1), the Minister is not bound, as a matter of law, to give the holder of a temporary entry permit notice of his intention to consider cancellation of the permit and of the matters relevant to that consideration or to afford to the holder an opportunity to put submissions why the power should not be exercised. In my opinion the learned judge at first instance was in error in regarding the decisions of the majority of the High Court in Salemi v. MacKellar (No. 2), supra, and The Queen v. MacKellar; Ex parte Ratu, supra, as turning principally on the provisions of the Migration Act 1958 which made it clear that a prohibited immigrant has no right to remain in Australia. While those provisions were a relevant factor, greater significance was, I think, placed by their Honours upon the general nature of the power, the width of the discretion conferred and the absence of any criteria in accordance with which it was to be exercised or of the prescription of any facts, matters or circumstances that the decision maker was bound to consider.

Before leaving this aspect of the case I should refer to the observation, referred to by the learned judge at first instance, of Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149 at p. 171. That case concerned a refusal to grant to certain students an extension of temporary permits under the Aliens Order, 1953. Lord Denning, in holding that the Minister was not bound to give the students a hearing before refusing to extend their permits and speaking of the position of an alien, said:-
"He has no right to enter this country except by leave; and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right - and, I would add, no legitimate expectation - of being allowed to stay. He can be refused without reasons given and without a hearing. Once his time has expired, he has to go."
The reference by his Lordship to the revocation of a permit before the time limit expires was a reference to a provision of the Aliens Order, 1953 that provided that the Secretary of State might at any time by notice in writing given to any particular alien, or by order applying to aliens of any specified class, revoke or vary in such manner as he thought fit any landing conditions for the time being in force in the case of that alien, or of aliens of that class. The case did not concern the power to revoke or vary any such landing conditions so that what his Lordship said was not necessary to the decision in that case. The legislative scheme was quite different from that with which this appeal is concerned and I do not think his Lordship's observation is applicable here: see also Tobias v. May (1976) 1 N.Z.L.R. 509 at pp 511-2.

Some reference was made to the decision of the High Court in Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487 that the Commission was bound to give a person notice of the Commission's intention to issue a notice requiring that person to refrain from entering any racecourse and of the grounds for the proposed action and to afford him an opportunity to make representations which the Commission was bound to consider before acting under its statutory power. It is, I think, sufficient to say that the considerations affecting the cancellation of a temporary entry permit are very different from those affecting the kind of provisions in question in that case.

Should it be thought appropriate in determining whether the Minister was bound, before cancelling the respondent's entry permit on 10 January 1983, to observe or comply with the principles of natural justice to consider the particular circumstances applicable in the respondent's case, I would myself find nothing in those circumstances which would warrant the view that he was so bound. The respondent, before her entry into Australia was approved, signed undertakings in the English and Thai languages that her entry into Australia was on the strict condition that she was to be employed on domestic duties in the household of the Thai Attache and that she would depart from Australia upon the cessation of her employment in that household whether upon the termination of the official posting of the Attache to Australia or through cessation of her employment for other reasons. She further acknowledged that she would not be eligible to remain in Australia as a resident or in any other capacity. The respondent cannot, in the circumstances where her employment in the Attache's household has been terminated by her own act, have had any legitimate expectation that she would be permitted to remain in Australia even for the remainder of the period specified in her temporary entry permit.

In my opinion the appeal should be allowed with costs. The order appealed from should be set aside and in lieu thereof an order made that the respondent's application be dismissed with costs.