Minister for Immigration & Ethnic Affairs v Haj-Ismail, H.H.
[1982] FCA 47
•08 APRIL 1982
And: HAYDAR HAJ-ISMAIL AND MONA AHDAB HAJ-ISMAIL (1982) 57 FLR 133
NSW No. G.123 of 1981
Immigration - Deportation
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Franki( ) and Davies( ) JJ.
Immigration - application for resident status - whether letter from Minister gave rise to legitimate expectation of grant of resident status - whether obligation to accord applicant natural justice before making decision
Deportation - Order based on refusal of resident status - whether avoiding decision on resident status affects deportation order - whether individual has right to be heard before making of order
Administrative Decisions (Judicial Review) Act 1977 s.5
Migration Act 1958 ss.5, 6, 7 and 18
Immigration and Aliens - Temporary entry permits - Expiry of permits - Prohibited immigrant - Refusal to grant resident status - Error of law - Whether principles of natural justice applicable to decision - Deportation decision - Whether decision vitiated by earlier incorrect decision - Whether natural justice must be observed before decision made - Migration Act 1958 (Cth), ss. 6, 6A, 7, 18 - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5 (1) (a), (b).
The respondents had been present in Australia since 1972 and 1975 respectively on various temporary entry permits. On 26th March, 1981, when the last such permit had expired the appellant Minister refused the respondents' applications for resident status. The Minister in connexion with this decision had received incorrect advice concerning his powers under ss. 6 and 6A of the Migration Act 1958. On 4th June, 1981, the appellant signed deportation orders in respect of both respondents. Upon the respondents' applications under the Administrative Decisions (Judicial Review) Act 1977 the trial judge made orders that the decisions of the Minister of 26th March, 1981, and 4th June, 1981, were void.
On appeal,
Held: (1) Per curiam - Because of the incorrect advice given to him in relation to s. 6A of the Migration Act 1958 the Minister's decision of 26th March, 1981, involved an error of law within the meaning of s. 5 (1) (b) of the Administrative Decisions (Judicial Review) Act.
Per Davies J. - Once a person has been accepted as a private overseas student he should not during the course of his studies ordinarily be refused a renewal of his entry permit without there having been compliance with the rules of natural justice. Such a person has a "legitimate expectation" that his permit will be renewed so as to enable him to complete his course of study. The first-named respondent had no such expectation here.
(2) Section 5 (1) (a) of the Act enables relief to be sought where the rules of natural justice are applicable in the exercise of a power, and effect has not been given to them.
Capello v. Minister for Immigration and Ethnic Affairs (1980), 49 FLR 40; Piroglu v. Minister for Immigration and Ethnic Affairs (1981), 55 FLR 99, applied.
(3) No obligation arose otherwise requiring the Minister to apply the principles of natural justice in exercising the deportation power conferred by s. 18 of the Migration Act 1958. The respondents did not have a "legitimate expectation" of remaining in Australia in the relevant sense.
Per Davies J. - In an appropriate case the Minister is bound to comply with the principles of natural justice when making a decision under ss. 6 and 7 of the Migration Act 1958 providing for the grant and cancellation of entry permits.
Salemi v. MacKellar (No. 2) (1977), 137 CLR 396; R. v. MacKellar; Ex parte Ratu (1977), 137 CLR 461, discussed and applied.
(4) The report to the Minister upon which the deportation orders were made did not fully or correctly state the true position concerning the respondents as it treated the decision of 26th March, 1981, as a correct decision. Accordingly the decisions of 4th June, 1981, in respect of deportation were wrongly based and should be set aside.
(5) Orders 1, 2 and 3 of the trial judge should be varied in so far as they required the appellant to give the respondents an opportunity to make representations before he made further decisions in respect of temporary entry permits or deportation orders.
Sydney, 1981, November 18-19; 1982, April 8. #DATE 8:4:1982
APPEAL.
The appellant appealed from a judgment of a single judge of the court which declared void decisions refusing the respondents resident status and ordering their deportation under the Migration Act 1958.
M. H. Byers Q.C., Solicitor-General, R. J. Burbidge Q.C. and L. Katz, for the appellant.
J. D. Traill Q.C. and M. J. Neil, for the respondents.
Cur. adv. vult.
Solicitor for the appellant: B. J. O'Donovan, Commonwealth Crown Solicitor.
Solicitors for the respondents: Horowitz & Bilinsky.
T. J. GINNANE
THE COURT ORDERS THAT :(1) Order 4 of Ellicott J of 25 August 1981 be set aside;
(2) The wording of Orders 1, 2 and 3 of Ellicott J, of 25 August 1981 be varied as follows :
(a) The decision of the Minister of 26 March 1981 be set aside;
(b) The applications of Mr. and Mrs. Haj-Ismail the subject of the decision of the Minister of 26 March 1981 be referred to the Minister to be dealt with by an officer of his Department according to law;
(c) Each of the deportation orders made by the Minister on 4 June 1981 be set aside.
Orders accordingly.
Before I deal with the merits of the appeal, it is desirable to mention some matters which concern the manner in which the proceedings have been brought and litigated. The first is that when, on 30 October 1980, the respondents, Mr. Haydar Haj-Ismail and his wife, Mrs. Mona Ahdab Haj-Ismail, lodged applications for resident status under a 'Regularisation of Status Program' which the Minister for Immigration and Ethnic Affairs had announced on 19 June 1980, the respondents were intending to apply for and their applications were accepted as applications for entry permits other than temporary entry permits, that is to say, applications for permits unlimited in time authorising them to remain in Australia. The 'Regularisation of Status Program' did not apply to the respondents as they were in Australia lawfully. Thus, in an affidavit in these proceedings, Mr. Haj-Ismail stated,
'I sought to apply for permanent residence for my family and myself pursuant to the Minister's letter of the 20th October, 1980. When I went to the Department on the 30th October, 1980 I went to the Student Office and was referred to another office. I was told that my file had been called up from one office to another and I was given the Regularisation of Status programme documents. I thought that this covered my situation and was the proper document in response to the Minister's letter. I was told that these were the only forms available. I completed those forms and included the family composition form as an application for permanent residence pursuant to the Minister's letter and not as an application for amnesty.'
The respondents' applications were treated as applications for permanent residence and nothing turns upon the actual form of the applications.
However, the legislative provision which then applied to the grant of permits to Mr. and Mrs. Haj-Ismail was s.6(2) of the Migration Act 1958 which read :
'6.(2) 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.'
Section 5(1) defined 'officer' as :
'5.(1) In this Act, unless the contrary intention appears -
.....
'officer' means an officer of the Department of Immigration, a person who is an officer for the purposes of the Customs Act 1901-1957 or a member of the Police Force of the Commonwealth or of a State of Territory;'
Accordingly, the Minister was not himself empowered to grant the entry permits sought. See Salemi v MacKellar (No.2), (1977) 137 CLR 396 per Gibbs J at pp.410-11, 416. Nevertheless, the applications were considered by the Minister personally and when, on 26 March 1981, the Minister decided not to grant to Mr. and Mrs. Haj-Ismail the entry permits sought, the decisions were his, or, at least he is the only person who has been identified as a decision-maker. In the appeal, although the point properly was mentioned to the Court by the Solicitor-General at the hearing, it was not submitted either that the decisions should be set aside on that ground or that the officer of the Department of Immigration and Ethnic Affairs who gave effect to the Minister's decisions should have been joined as a party to the proceedings on the basis that he and not the Minister was the true decision-maker. Therefore, the Court need not be concerned further with this aspect of the matter. The hearing before the learned trial Judge proceeded upon the footing that the decisions refusing the permits were the decisions of the Minister and upon the footing that he had power to make them. In my view, the appeal should be considered upon the same footing.
The last matter to be mentioned by way of introduction is that there was not submitted in evidence any statement of the Minister's reasons for the decisions which are under review. There is no direct evidence before the Court of the Minister's reasons for his decisions but the Court may draw inferences from the evidence put before the learned trial Judge by counsel for the Minister which evidence includes the contents of the reports presented to the Minister by officers of his Department supporting the making of the decisions which ultimately were made. These reports from the officers of the Department have endorsed upon them a notation of the Minister indicating his receipt and consideration of them. There is no notation upon the reports of the Minister's dissent from those parts in the reports which were, as I shall later indicate, incorrect or inadequate.
On 26 March 1981, the Minister decided not to grant to Mr. and Mrs. Haj-Ismail the entry permits sought. Their current temporary entry permits had expired on 1 March 1981. Mr. and Mrs. Haj-Ismail were then and have since remained prohibited immigrants. Section 7(3) of the Act provides :
'7.(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.'
Mr. and Mrs. Haj-Ismail did not seek the grant of further temporary entry permits. On or about 12 June 1981, pursuant to s.18 of the Migration Act, the Minister ordered that Mr. and Mrs. Haj-Ismail be deported from Australia. Section 18 reads :
'18. The Minister may order the deportation of a person who is a prohibited immigrant under any provision of this Act.'
Pursuant to the Administrative Decisions (Judicial Review) Act 1977, Mr. and Mrs. Haj-Ismail sought the review of the Minister's decisions to refuse the grant of the permanent residency permits and also his decisions that they be deported. On those applications, on 25 August 1981, the learned trial Judge made the following orders, inter alia,
'1. DECLARES that the decision of the Minister of 26 March 1981 is void and of no effect and ORDERS that it be set aside.
2. DIRECTS that the applications for resident status of each of the applicants be referred to the respondent to be dealt with by him or officers of his department according to law.
3. DECLARES that each of the deportation orders made by the respondents on 4 June 1981 is void and of no effect and ORDERS that each be set aside.
4. DIRECTS :-
(a)that before any decision is made refusing to grant to either of the applicants a further temporary entry permit each of the applicants be given an opportunity to make representations relating to character, the continuation of Mr Haj-Ismail's studies in Australia and the matters referred to in the Australian Federal Police Report of 19 January 1981.
(b)that before a deportation order is made against either of the applicants each of the applicants be given an opportunity to make representations of the nature referred to in paragraph (a) above.'
The Minister for Immigration and Ethnic Affairs has appealed from those orders.
The circumstances in which there may be an obligation upon the Minister for Immigration and Ethnic Affairs to comply with the principles of natural justice were considered by the Full High Court in Salemi v MacKellar (No.2), cited above, and R v MacKellar; ex parte Ratu (1977) 137 CLR 461. The views of six of the Justices of the High Court are set out at more length in the former of those cases but the decision in Ratu's case, given on 22 June 1977, was subsequent to that in Salemi's case, given on 11 May 1977 and, in Ratu's case, the principles to be applied were re-examined by the Full Bench including Mason J, who was not a member of the Court in Salemi's case.
It is convenient to commence a discussion of the legal principles with the question posed by and the statement of principle by Gibbs J in Salemi's case at pages 419-420 :
'The question then is whether the Minister, before exercising the power given by s.18, was bound to afford the plaintiff an opportunity to be heard. There is nothing technical about the principles of natural justice. It is sometimes said, or suggested, that those principles apply only to proceedings which are judicial or quasi-judicial, or where there is a duty to act judicially. To state the rule in that way seems to me to be unduly restrictive and misleading. It is at least clear that when the power which is being exercised is a statutory one, it is not necessary to be able to find in the words of the statute itself a duty to hear the party affected or otherwise to act judicially. To repeat the well-known words of Byles J in Cooper v Wandsworth Board of Works ((1863) 14 CB (NS) 180 at p.194, 143 ER 414 at p.420), 'although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature'. As Lord Reid said in Ridge v Baldwin ((1964) AC 40, at p.76), it may be possible 'to infer a judicial element from the nature of the power' in the case. Further, the application of the principles is not limited to cases where the power that is exercised affects rights in the strict sense : see, eg, Banks v Transport Regulation Board (Vict) ((1968) 119 CLR 222). It may be enough if an interest or privilege is affected, or, as Lord Denning MR has said, if a man has a 'legitimate expectation', of which it would not be fair to deprive him without a hearing, or reasons given : Breen v Amalgamated Engineering Union ((1971) 2 QB 175, at p.191); and see Schmidt v Secretary of State for Home Affairs ((1969) 2 Ch 149, at p.170). But it would be wrong to attempt to give an exhaustive classification of the cases where the principle should be applied : Durayappah v Fernando ((1967) 2 AC 337, at p.349).
The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles (cf Durayappah v Fernando ((1967) 2 AC, at p.350)).
In Durayappah v Fernando, Lord Upjohn, delivering the reasons of the Privy Council, said that 'there are three matters which must always be borne in mind when considering whether the principle should be applied or not' ((1967) 2 AC 337, at p.349). He went on :
'These three matters are : first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other.'
There may of course be other matters that will be relevant in deciding whether the principles apply : for example, the nature of the body on which the power is conferred, the language in which the power is conferred, and the presence in the statute of provisions enabling the exercise of the power to be reviewed."
The principles which his Honour there stated were not the subject of dispute in either Salemi's case or Ratu's case. Nor was it in dispute that the procedural consequences of applying the rules of natural justice will vary from case to case. As Stephen J said in Salemi's case at p.444 :
'It is, no doubt, now a truism that in cases in which the rules of natural justice are applicable the procedural consequences will not necessarily be uniform. On the contrary they will depend upon what Kitto J describes, in Mobil Oil Australia Pty. Ltd. v Federal Commissioner of Taxation ((1963) 113 CLR 475, at p.504), as 'the particular statutory framework' within which they are to apply. But not only will their effect and application thus vary depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v Baldwin per Lord Reid (1964) AC at pp.65, 72), they may also vary from case to case although each be conducted before one and the same tribunal or person. Kitto J gave recognition to this fact in the course of his reasoning in the Mobil Oil Case ((1963) 113 CLR, at p.504). In Durayappah v Fernando their Lordships' reference to particular instances in which the existence of great urgency would require the limitation, 'timeously, perhaps severely', of the right to be heard, although never justifying a denial of that right ((1967) 2 AC at p.346), emphasizes how much the concept of fairness, inherent in the audi alteram partem rule, may require to be moulded to the particular circumstances of the case. In Furnell's Case ((1973) AC at p.679), their Lordships cited with approval what was said by Tucker LJ in Russell v Duke of Norfolk ((1949) 1 All ER 109, at p.118), that 'the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration'.'
But just as the procedural consequences will vary according to the nature of the case, so it was thought by a number of the Justices, the majority in Ratu's case, that the application of the principles of natural justice also depends upon the circumstances of the particular case. This principle was stated by Stephen J in Salemi's case at pages 438-9 :
'So far as I am aware there exists no detailed judicial consideration of the basis upon which the possession of a legitimate expectation gives rise to a right to be accorded natural justice. It stems, no doubt, from the same fertile source as has nourished the concept that those who possess rights and interests should not, in the absence of express enactment, be deprived of them by the exercise of an arbitrary discretion and without observance of the rules of natural justice; Byles J remarked in Cooper v Wandsworth District Board of Works ((1963) 14 CB (NS) 180, at p.194, 143 ER 414 at p.420) that in such a case 'the justice of the common law will supply the omission of the legislature'. To accord to a well-founded expectation the same protection as the law will in such a case give to some right of property is to reflect what Megarry J said in John v Rees ((1970) 1 Ch 345) when, in dealing with a plaintiff's loss of honorary office in a branch of a political party, he rejected the notion 'that the right to natural justice depends upon the right to a few pieces of silver' ((1970) 1 Ch, at p.398). When the discretionary grant of a licence, permit or the like carries with it a reasonable expectation of, although no legal right to, renewal or non-revocation, summarily to disappoint that expectation is seen as unfair; hence the requirement that the expectant person should first be heard and this no doubt as much to aid those who exercise discretions in pursuing the goal of a just result as to safeguard the interests of the expectant party. In the Liverpool Corporation Case, Roskill LJ adverted to this aspect when he said, in disposing of a submission that the exercise of a statutory discretion was being fettered, that to require a municipal council to hear representations before making a decision would 'assist the council to perform rather than inhibit the performance of its statutory duties' ((1972) 2 QB, at p.310).
In Ratu's case, his Honour did not find it necessary to re-examine the principles he had stated in Salemi's case. On the facts of the cases, he took the view that, in Salemi's case, it was appropriate that Salemi be given the right to be heard but that, in Ratu's case, having regard to the circumstances, the prosecutrices could not ask for more from the Minister than they had already received.
Jacobs J took a similar view. In Salemi's case, his Honour said, at pages 451-2 :
'The application of those principles depends on the circumstances of the case. It is seldom possible to say in the case of the exercise of any particular statutory power 'All the principles which have ever been applied in ensuring natural justice will here apply' or on the other hand 'Natural justice was intended to be wholly excluded'. The questions which must be asked are - in particular circumstances such as exist in this case did the legislature intend that the principles of natural justice should be wholly excluded? If not, what particular principles should be applied? I recognize that the search for legislative intention can be described as somewhat artificial. What the courts do in the absence of express legislative intention is to ensure that power, whether it be judicial or quasi-judicial or executive, be exercised fairly, weighing the interests of the individual and the interests of society as a whole.
The way in which the applicability or non-applicability of rules of natural justice depends upon varying circumstances all of which may nevertheless be comprehended within the general words of a legislative provision is exemplified in the distinction which has been drawn between the grant and the renewal of an annual licence. A statute may provide for the grant of annual licences to do this or that. Technically, therefore, there are new licences each year. A person may apply for a licence and it may be refused; yet he may not be entitled to be heard before the refusal unless the licence be a statutory requirement in order to carry on an existing business (Reg. v Gaming Board for Great Britain; Ex parte Benaim ((1970) 2 QB 417). But on the same statutory provision, if he has been granted a licence in the previous year, he may be entitled to be heard and otherwise to have the rules of natural justice applied before he is refused a new licence for the next year. Cf de Smith, Judicial Review of Administrative Action, 3rd ed.(1973), p.197. Cf however Ex parte Fanning; Re Commissioner for Motor Transport ((1964) NSWR 1110). Such a person may have what in another context has been felicitously described, first I think by Lord Denning MR in Schmidt v Home Secretary ((1969) 2 Ch 149, at p.170) as a 'legitimate expectation'. That does not mean that the expectation is itself the right. The right is the right to natural justice in certain circumstances and a 'legitimate expectation' is one of those circumstances.
Though the principles of natural justice extend to executive or administrative acts, it is necessary to bear in mind that the kind of act here referred to is the act which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a 'policy' or 'political' decision and is not subject to judicial review. This is a distinction which I had occasion to point out in Mutton v Kuring-gai Municipal Council ((1973) 1 NSWLR 233, at pp.241-243)."
On the facts, his Honour took the same view as did Stephen J.
Mason J expressed a similar view. In Ratu's case, at pages 476-7, his Honour said :
'The suggestion here is that natural justice requires that the Minister before making a deportation order under s.18 should give advance notice to the person against whom the order is to be made of the reasons for which it is to be made. No doubt it is right to say that in many circumstances natural justice requires that a person against whom an order is proposed to be made that will deprive him of some right or interest or the legitimate expectation of some benefit is entitled to particulars of the case sought to be made against him (see Schmidt v Secretary of State for Home Affairs ((1969) 2 Ch 149, at p.170); Annamunthodo v Oilfields Workers' Trade Union ((1961) AC 945); Breen v Amalgamated Engineering Union ((1971) 2 QB 175, at p.191). In the present case, however, the conclusion which I have reached on an examination of the Migration Act is that the making of the deportation orders did not deprive the applicants of any right or interest or of the legitimate expectation of a benefit in such circumstances as to impose upon the Minister an obligation to give advance notice of his reasons for making the orders. This conclusion in my opinion follows from the character of the deportation orders which were made, the purpose which they serve under the Act, the effect which they had upon the applicants' position and to a lesser extent from the provisions of the Act dealing with the grant, refusal and cancellation of temporary entry permits and with the making of deportation orders.'
At pages 478-9, his Honour said :
'...nor can it be said in the ordinary case that it deprives him of a legitimate expectation that he will be allowed to remain here.'
At page 480, his Honour said :
'Moreover, the contrast between s.18 and s.14 supports the inference that the Minister is under no general duty to give notice to a prohibited immigrant before proceeding to make an order under s.18, ...'
I take his Honour as expressing the view that, in the circumstances that were before him, it was not necessary that the Minister should give advance notice of his decision to the person affected and that the person affected by the decision was not thereby deprived of a right or the legitimate expectation of a benefit. But his Honour referred to the 'ordinary' or 'general' case and to the effect which the decision had upon 'the applicants' position'.
Murphy J in both cases expressed his view that the power of deportation must be exercised in accordance with the principles of natural justice. In Salemi's case, at page 457, his Honour said,
'I do not read s.18 as enabling a Minister to exercise his discretion (to order deportation) in bad faith, without regard to the interests of the person affected, and in a manner which denies natural justice. The power to deport, like other powers, is to be exercised bona fide, for the purposes for which it was created and with due regard to the interests of persons affected by its exercise. The power must be exercised in accordance with the principles of natural justice.'
In Ratu's case, his Honour alone held that the Minister was bound to comply with the rules of natural justice. In that case, however, his Honour said that those rules had been complied with since, after the making of the order, the Minister had given careful attention to the applicants' representations.
Gibbs J expressed the view in Salemi's case that, in coming to a decision under s.18, the Minister was not required to comply with the principles of natural justice. At pages 420-421, his Honour said :
'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. These two matters together quite strongly support the view that the power of the Minister under s.18 is one which he may exercise free from any duty to observe the principles of natural justice. The third consideration - what Lord Upjohn called the sanction - points in the opposite direction, because the power to order deportation, if exercised, may have a seriously adverse effect on the life of the person deported.
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."
In Ratu's case, his Honour expressed the same view. However, he did not base his judgment in that case just upon that view, but examined the particular circumstances of the case, and, at page 470, immediately before expressing his conclusion, his Honour said,
'In the present case, however, there is not the slightest suggestion that the prosecutrices were ever led by the Minister or any member of his Department to believe that they could enter Australia other than as visitors or that they would be given the right to stay indefinitely in Australia.'
In Salemi's case, Aickin J adopted the views of Gibbs J. In Ratu's case his Honour re-affirmed his view that the power given by s.18 is not subject to compliance with the requirements of natural justice.
Barwick CJ was of the view that s.18 did not require compliance with the principles of natural justice. In Salemi's case, at page 401, his Honour said :
'The obligation to accord natural justice thus disclosed on the proper interpretation of the statute is universal and not particular to some individual or his circumstances : the power is a qualified power. As I have said, the exercise of the power in any circumstances without having accorded natural justice appropriate to the circumstances may be set aside by the courts as beyond the power given by the statute. I have emphasized that what will suffice to perform or satisfy the obligation to accord natural justice will be particular to the circumstances which obtain. But the obligation to accord natural justice does not itself spring from these circumstances : it springs from the construction by the courts of the statute, in particular of the terms in which the power is granted, the nature of the power of decision or action, the identify of the donee of the power and of its subject matter.'
His Honour concluded that no such universal qualification was to be implied from s.18. His Honour said, at page 407,
'...there is no basis, in my opinion, for construing the Act as containing, albeit implicitly, a universal qualification of the Minister's power under s.18 by requiring the observance of natural justice in all cases of its exercise, but, if contrary to my opinion such a qualification could properly be made by construction on an individual basis, springing out of particular circumstances, there is no warrant in the case of the applicant for making any such qualification.'
In Ratu's case, his Honour laid even more emphasis upon the distinction between s.14, which provides a procedure for a hearing, and s.18 which does not. His Honour re-stated his view that,
'If s.18 were to be qualified in the manner suggested then, of course, as I indicated in Salemi's case (at pp.399-407), the qualification must be universally applicable.'
His Honour went on to say, at pages 465-6 :
'Natural justice on that assumption must be accorded to any prohibited immigrant who falls within its purview. As I have indicated in Salemi's Case (at pp.399-407), what would need to be done to satisfy that requirement may vary according to the circumstances, but the qualification will be universal : the power will thus be a qualified power.'
In my opinion, the decision in Salemi's case binds this Court to hold that in making an order under s.18 of the Migration Act the Minister is not bound to comply with the principles of natural justice, he may make an order under s.18 without giving the person affected a right to be heard. Though the Justices were equally divided, the opinion of the Chief Justice prevailed pursuant to s.23(2) of the Judiciary Act 1901. The decision of the Court, which has not been over-ruled, clearly decided the point of principle and must be followed by this Court. On the other hand, the majority of the Justices in Ratu's case took the view that, in appropriate circumstances, the Minister is bound, when making a decision under the Migration Act, to apply the principles of natural justice. This latter principle should be applied by this Court to the effect that, in an appropriate case, the Minister is bound to comply with the principles of natural justice when making a decision under ss.6 and 7 of the Migration Act, sections which provide for the grant and cancellation of entry permits.
Thus, in determining whether or not the Minister is bound to apply the principles of natural justice, the facts of the particular case may be examined. Just as the effect of the application of the rules of natural justice must vary from case to case depending upon the particular circumstances of the case so the question of whether or not the principles apply is not itself to be determined without regard to those circumstances. Recent cases have adopted the expression 'legitimate expectation' to characterise circumstances which give rise to the application of the rules of natural justice if a decision is to be made contrary to that expectation. In Schmidt v Secretary of State for Home Affairs (1969) 2 Ch 149 at 170, Lord Denning MR referred to :
'...some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say'.
See also Schmidt's case at p.173; Breen v Amalgamated Engineering Union (1971) 2 QB 175 at p.191; Salemi's case at pp.404, 419, 437-9, 452; Ratu's case at p.476; Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487 at pp.491, 494 and 508-9; McInnes v Onslow Fane & Anor. (1978) 3 All ER 211 at p.218; and Cinnamond & Ors. v British Airports Authority (1980) 2 All ER 368 at p.374. The last of the cases is of particular interest because the Court took the view that, in the circumstances of the case, having regard to the conduct of the persons affected, there was no legitimate expectation. At pages 374-5, Lord Denning MR said,
'These men have a long record of convictions. They have large fines outstanding. They are continuing to engage in conduct which they must know is unlawful and contrary to the byelaws. When they were summonsed for past offences, they put their case, no doubt, to the magistrates and to the Crown Court. Now when the patience of the authority is exhausted, it seems to me that the authority can properly suspend them until further notice, just like the police officer I mentioned. In the circumstances they had no legitimate expectation of being heard.'
Therefore, it is necessary to look at the particular facts which are before the Court.
The evidence shows that Mr. and Mrs. Haj-Ismail are aliens. Mr. Haj-Ismail was born at Jwaiza, then part of Syria. The learned trial Judge's reasons record :
'On 18 November 1972 he entered Australia and a temporary entry permit for a period of one month was granted to him on entry. He has remained in Australia ever since. From time to time further temporary entry permits have been granted to him. These were granted for the following periods :
9 January 1973 to 18 March 1973
8 July 1975 to 30 June 1976
1 December 1976 to 8 August 1977
24 August 1977 to 28 February 1978
24 April 1978 to 31 January 1979
25 August 1980 to 1 March 1981.
It will be noted that there were periods between 18 November 1972 and 1 March 1981, totalling approximately 41/2 years, during which Mr Haj-Ismail was not the holder of any entry permit.
On 25 March 1975 he was approved as a private overseas student in Australia.
His wife, Mona and his daughter Rolla arrived in Australia on 17 September 1975 and were granted temporary entry permits authorising them to remain in Australia for three months. Thereafter further temporary permits were granted to them from time to time, the last being granted on 29 October 1980 authorising them to remain in Australia until 1 March 1981. These permits were also for broken periods."
The reference to Mr. Haj-Ismail's approval as a private overseas student in Australia is a reference to a Private Overseas Student Scheme pursuant to which persons are permitted to enter and to remain in Australia for the purpose of study. The Migration Act makes no specific provision with respect to students but, as a matter of practice, once a person has been accepted by the Department of Immigration and Ethnic Affairs as a private overseas student under the Scheme, he will ordinarily be granted a succession of temporary entry permits to entitle him to remain in Australia until the completion of his studies.
An affidavit sworn by Mr. Haj-Ismail gives the following information respecting his studies :
'8. I applied to the Department of Immigration in Melbourne for permission to change to student status and provided relevant information. I originally intended to take a PhD but as I wished to study the teachings of Cicero I decided to precede this with Latin courses and a Masters degree at Melbourne University, at the suggestion of Dr. Howse. In 1973 Dr Howse went to South Africa in the middle of the academic year and I then was assigned to a new supervisor and a new topic on the philosophy of Kant. I therefore started afresh with the PhD thesis under the new supervisor. I found that the studies on Kant were not consistent with my main speciality of stoic moral philosophy and I therefore came to Sydney University to the Department of Philosophy but could not find any person specialising in my theme. I then went to Macquarie University in 1974 and met Dr. Kleinig who required me to do certain courses before he would accept me for a PhD thesis. This was because the Anglo-Saxon conception of philosophy varied from the Middle Eastern conception which I had studied at the American University. I did one course with Dr. Kleinig on justice and one course with Dr. Ross Poole on the social contract and completed these courses in about 1974/1975.
9. In 1975 I started research on my PhD proper at Macquarie University under the supervision of Dr. Ross Poole. I have continued under his supervision to date and submitted my thesis at the end of 1979 to the Department of Philosophy. The theme of the thesis was 'The concept of property in Marx'. The assessors were Dr. Mike Roth in Germany, Dr. Sutching of the University of Sydney and Mr. O'Hare of the University of Adelaide.
10. At the end of 1980 I was advised that the assessors were divided and the Department of Philosophy gave me one year to write a thesis for an Honour's Masters Degree in lieu of the PhD. I have undertaken research for the Master of Arts Degree and presented my thesis in March, 1981 on the same topic as the PhD. The thesis is being assessed and it is my intention, subject to obtaining the Honours Degree, to obtain my Doctorate of Philosophy at another Australian University.'
It will be seen that Mr. Haj-Ismail commenced research for his Doctorate of Philosophy in 1975. By the end of 1980, his studies for that degree had failed. In his affidavit he said that it was his intention to obtain a Doctorate of Philosophy at another Australian University.
In my view, once a person has been accepted as a private overseas student, he should not during the course of his studies ordinarily be refused a renewal of his entry permit without there being compliance with the rules of natural justice. Such a person has a legitimate expectation that his permit will be renewed so as to enable him to complete his course of study. As Barwick CJ said in Salemi's case, at page 405,
'Where a licence or permit is given for a fixed term in relation to a subject matter and in circumstances which carry the implication that if the licensee or permittee has fulfilled the obligation of the licence he may expect a renewal of the licence or permit, the grant will be construed as importing a term that at least the interests of the existing licensee will be considered before a renewal is refused. Such a person thus has a legal basis for asking for that consideration : and, if so, ought to be heard. Such a person might be said to have a lawful expectation of such consideration.'
I see nothing in the provisions of the Migration Act which precludes the implication of such a principle. Though s.6 of the Act is stated briefly, it applies to widely diverse cases. I see nothing in the Act which suggests to me that Parliament would have had in mind that a student under the Scheme would not be entitled to be heard by the Minister before a decision was taken not to renew his permit. It is true that s.14 specifically provides for a hearing in the circumstances there specified. But, action under that section is rare whereas decisions under ss.6 and 7 of the Migration Act are numerous. Section 14 deals with a very special case. The terms of that section do not, I think, preclude the implication of the principles of natural justice to those instances where the decision made or contemplated to be made under ss.6 and 7 of the Migration Act affects a legitimate expectation held by the person affected.
It was said on behalf of Mr. Haj-Ismail that he had a legitimate expectation that his permit would be renewed and that he was entitled to be heard before a decision was made not to renew it. However, not only did Mr. Haj-Ismail not apply for a renewal of his temporary entry permit, the permit related to his student status, but the failure to grant such renewal was not the subject of the application to the Court under the Administrative Decisions (Judicial Review) Act. In his application to the Court, Mr. Haj-Ismail complained of the refusal to grant to him a permit entitling him to remain permanently in Australia. He was, in fact, seeking to stay in Australia not as a student but as a permanent resident.
Moreover, in my view, it could not be said that Mr. Haj-Ismail had any legitimate expectation that he would be allowed any further time to complete his studies for a Doctorate of Philosophy. He had studied at Macquarie University for six years from 1975 to 1980 yet failed his degree. In fact, study was only a very small part of his activities in this country. The many references or letters in support of Mr. Haj-Ismail's application for permanent residence show that, over the years, he was active politically in this country. He became President of the Syrian National Social Party in Australia shortly after his arrival in Australia. A letter in evidence refers to him as '...a prominent active member of the arab community and a popular political figure liked by thousands of australian citizens who admire his political and social achievements in Australia.'. Another letter states,
'Friends of PALESTINE MOVEMENTS members in AUSTRALIA had known DR HAYDAR HAJ ISMAIL the president of the SYRIAN NATIONAL SOCIAL PARTY in AUSTRALIA for eight years, now. DR HAYDAR HAJ ISMAIL is well known in the arabic community as a lecturer at public forums and as writer and philosopher. DR HAYDAR HAJ ISMAIL is an asset to AUSTRALIA; he and his party had served a lot the arab community and AUSTRALIA in social, charity and education sectors.'
The letters generally refer to him as 'Dr Haj-Ismail' a title which apparently he took unto himself. He was also known by the name 'Aboud' or 'Dr Aboud'. The large number and variety of the letters in support of Mr. Haj-Ismail which are in evidence show clearly that Mr. Haj-Ismail was active in the Arab community as a political figure, as a lecturer and as a social leader. Moreover, there is in evidence a report to the Department of Immigration and Ethnic Affairs by the Australian Federal Police of 19 January 1981 which includes the paragraph :
'It is common knowledge among the Arab community, particularly in Sydney, that Aboud ABOUD heads a 'Mafia' type group equipped and prepared to dispense violence against those who stand in his way. He moves with bodyguards and gives the appearance of wealth beyond his legal means. Some look upon him as the 'Godfather' of the Arab community. His official income is derived from party membership fees.'
As to this, Mr. Haj-Ismail said, '...I say that the allegations set out therein are false and without any foundation'. Yet, if Mr. Haj-Ismail had any source of funds other than income from the Syrian National Social Party, that source of income is nowhere disclosed in the material before the Court. Certainly there is nothing in the material which suggests that Mr. Haj-Ismail undertook any employment in Australia. There is no reference or letter of support from any former employer. And Mr. and Mrs. Haj-Ismail do not appear to have led a life of poor students. Mrs. Haj-Ismail said in her affidavit :
'16. My husband and I often go to restaurants and clubs and meet a wide range of people.
17. We have been on holidays to Tasmania, Melbourne and Adelaide. We have met many people in different parts of Australia. I greatly admire and respect the Australian people and their traditions.'
Generally, the evidence makes it clear that study was one of the least of Mr. Haj-Ismail's interests in Australia and that, by the end of 1980, his studies had come to finality in the sense that he had been refused a degree of Doctor of Philosophy. By the time of the expiry of his temporary entry permit, he had completed the steps which he had to take to obtain a Masters degree in lieu of a Doctorate. In my opinion, by 1 March 1981 he had no legitimate expectation that he would be granted a further temporary entry permit to permit him to continue his studies and he did not in fact seek any such permit. Therefore, he had no right to be heard in relation to that matter.
For these reasons, I put aside the question of Mr. Haj-Ismail's status as a student in this country.
The next question is whether Mr. Haj-Ismail was entitled to be heard on the question of the grant to him of a permanent residency permit. It was not contended that the Minister was under a duty to give the right to be heard to every applicant for such a permit. The large number of applications involved, their geographical diversity and the general nature of the decision to be made makes it clear that Parliament did not intend that there should be any such general right. However, Mr. Haj-Ismail relies upon the fact that, on 20 October 1980, the Minister for Immigration and Ethnic Affairs wrote to Dr. H.R. Edwards, MP, as follows :
'I refer to your representations concerning Mr H. Haj-Ismail and family of 22/5 Dural Street, Hornsby 2077, who wish to remain in Australia with resident status.
If he has not already done so, Mr. Haj-Ismail should lodge a formal application for change of status for himself and his family at the Sydney office of the Departmental (sic) of Immigration and Ethnic Affairs. Provided they are able to meet normal immigration health and character requirements, they will then be granted change of status to residents.'
It was said that this letter, which was subsequently communicated to Mr. Haj-Ismail, gave Mr. Haj-Ismail a legitimate expectation that he would be granted a permit. The permit was not in fact granted because it subsequently came to the attention of an officer of the Department that Mr. Haj-Ismail was the same person as a person known as 'Aboud' with respect to whom the Department was holding a file. And the report to the Department by the Australian Federal Police of 19 January 1981, which I have already mentioned, came to hand. Mr. Haj-Ismail denies the allegations made against him in the Police report but does not dispute that he is the person called 'Aboud' in the Department's files. In an affidavit he has stated, 'I became known not only as Haj-Ismail but as Aboud or as Dr. Haj-Ismail or as Dr. Aboud depending upon the person'. Thus, the issue is whether the letter to Dr. Edwards gave rise to a legitimate expectation such that Mr. and Mrs. Haj-Ismail should have been heard before their applications were refused.
The letter dated 20 October 1980 was a response to a letter from Dr. Edwards to the Minister dated 17 July 1980 as follows :
'I write concerning Mr. Haydar Haj-Ismail of 22/5 Dural Street, Hornsby 2077, in my electorate.
Mr. Haj-Ismail I understand came to Australia from Lebanon in October 1972, as a tourist and changed to student status a few months later in order to study for his Doctorate in Philosophy. Since then he has been a student mainly at Macquarie University, North Ryde, Sydney. He has been joined by his wife and daughter who is in Year 7 at Hornsby Girls' High School.
Having lived for some years in the Australian community and thrown down some roots, as it were, Mr. Haj-Ismail and his wife and child now wish to reside here permanently. He has degrees from Damascus University and the American University in Beirut, and has recently completed a doctoral thesis at Macquarie University. He is in his 48th year.
F.S. Gazal Pty. Ltd., clothing manufacturers at St. Peters, Sydney, are keen to employ both Mr. and Mrs. Haj-Ismail. Attached is a letter from the Company making firm offers of employment to him, as a public relations manager, and to her, as a secretary. I understand she has secretarial qualifications.
I would commend Mr. Haj-Ismail and his family for special consideration for permanent residence, and I would be grateful for your advice in the matter.'
Enough has been said of Mr. Haj-Ismail's history in Australia to make it clear that, whether or not Mr. Haj-Ismail's activities in Australia were to Australia's detriment or benefit, Dr. Edwards' letter substantially misrepresented those activities. The picture of Mr. Haj-Ismail as a student and as one who had just been offered a job by a clothing manufacturer misrepresented the position in Australia of Mr. Haj-Ismail. Mr. Haj-Ismail was a leading figure in the arabic community and he was politically active in an area of politics which may have concerned the Australian Government. Accordingly, I find it difficult to think that any response to that letter was something on which Mr. and Mrs. Haj-Ismail legitimately could consider themselves entitled to rely.
In my opinion, the Minister's letter to Dr. Edwards was no more than an early response in the process of what appeared to be routine applications. It was an indication of the Minister's then intent. It did not indicate a final decision and, when the additional facts came to light, the Minister was, in my view, perfectly entitled to deal with the applications in the light of the facts then within his knowledge without calling upon Mr. and Mrs. Haj-Ismail to put their case.
Nevertheless, one defect did affect the Minister's decisions on the applications for permanent residence. The report which went to the Minister on the applications contained the paragraphs :
'5. Whatever may have been said in your earlier letter to Dr Edwards, the only way in which he can now be considered legally for change of status is under the 'humanitarian' provisions of the amended Migration Act. It is a matter of judgment whether it is considered there are 'strong compassionate or humanitarian grounds' involved as per Section 6A(1)(e) but I do not see the application falling within this category.
.....
7. It is recommended that the grant of resident status be refused and I suggest the family be given four weeks to leave.'
The statement in paragraph 5 was incorrect. The transitional provisions in s.11 of the amending Act No.175 of 1980, which inserted s.6A in the Migration Act, kept alive in relation to Mr. and Mrs. Haj-Ismail's applications the provisions which, at the time of their applications, governed the grant of resident status to persons present in Australia. Thus, there was an unfettered discretion to grant their applications. Mr. Volker, the Deputy Secretary of the Department, gave the following evidence concerning this advice:
'As I recollect what occurred, it was believed at the time that this submission was put to the Minister that in fact the only opportunity for someone in this position to be considered for what we call change of status was through section 6A(1) of the Migration Act which came into effect on 14 January 1981. It was later in fact discovered that the amendments to the act in respect to section 11 did not make an exception which it had been understood had been made in respect of students and diplomatic personnel. Consequently, at the time this material was provided to the Minister the statement in paragraph 5 was in fact incorrect. However, that was brought to the Minister's attention orally as soon as it became known, so that he was aware of the situation by the time certainly that the deportation order was signed.'
The conclusion which the learned trial Judge drew from this evidence was that, as the departmental officers had had a misunderstanding of the legal basis upon which the applications should be considered, probably also so did the Minister. In my view, that conclusion was proper.
It follows, in my view, that the decisions not to grant the permits were based upon an erroneous conception of law. They therefore involved an error of law and the learned trial Judge was right in ordering that they be set aside.
I turn now to the orders for the deportation of Mr. and Mrs. Haj-Ismail made on 4 June 1981. With respect to these orders, it was first said that there was a breach of the principles of natural justice in that Mr. and Mrs. Haj-Ismail had not been heard. On this matter, however, the decision in Salemi's case is binding upon this Court. And it may be noted that in Salemi's case the circumstances which would raise a legitimate expectation of the grant of a permit were greater than in Mr. and Mrs. Haj-Ismail's cases. In my view, therefore, the Minister was not bound to comply with the principles of natural justice, to give to Mr. and Mrs. Haj-Ismail the right to make representations or to be heard, before making orders for their deportation pursuant to s.18 of the Migration Act. This conclusion is not affected by the terms of s.5 of the Administrative Decisions (Judicial Review) Act 1977. That section does not require rules of natural justice to be complied with in the making of a decision to which the Act applies in circumstances where otherwise those rules do not apply.
However, paragraph 16 of the report which was submitted to the Minister for the purpose of his making that decision said :
'16. Aboud Aboud is a prohibited immigrant pursuant to Section 7 of the Migration Act, as is his wife Mona Ahdab, and their child. It has been decided that he and his family may not be granted resident status. There is no basis for doing so. Section 6A of the Migration Act does not apply to Aboud. He must be considered under the previous policy applicable to change of status. Under that policy prohibited immigrants were only eligible when compelling circumstances existed in favour of allowing them to remain. He has refused to depart voluntarily and his wife has apparently not made any move to leave. Accordingly, on those grounds the making of orders for deportation of Aboud and his wife would appear to be the indicated course. There is the additional important point that ASIO has given an adverse security assessment. This has now been received and is at Attachment 'E'."
This paragraph referred to the fact that 'It has been decided that he and his family may not be granted resident status'. That, in fact, was still a matter which had not been finally determined because the original decisions are now to be set aside. The paragraph then put a view that Mr. and Mrs. Haj-Ismail could not be granted resident status. The paragraph stated, 'There is no basis for doing so'. The paragraph referred to an earlier policy whereby prohibited immigrants were eligible only when compelling circumstances existed in favour of allowing them to remain. Yet, we know that previous policy would not have precluded the grant of the permits for the Minister had written to Dr. Edwards saying that the permit would be granted subject to health and character requirements. Thus, again, the report to the Minister did not fairly put all the relevant factors which ought to have been taken into account.
As I mentioned earlier in these reasons, the Court has no information as to the factors which the Minister took into account in arriving at his decision other than the reports including recommendations which went to him for his approval. He approved the recommendations. The reports were evidence adduced on behalf of the Minister. In the circumstances, I am of the opinion that the proper conclusion is that the Minister took into account as a factor in his decisions that the applications for resident status had been decided unfavourably to Mr. and Mrs. Haj-Ismail and that there was no basis for granting that status to them. As this was incorrect, the Minister did not have regard to all relevant considerations when reaching his decision.
Although factors of security and character were no doubt the major matters which led to the decision to deport Mr. and Mrs. Haj-Ismail, I am not able to say that the matters set out in paragraph 16 of the report were immaterial or that the Minister would have made the same decision on the same date had he been aware that there were outstanding applications for resident status and had he understood that he had adequate power to grant those applications if he saw fit to do so. It follows that the substance of Order 3 made by the learned trial Judge was correct.
I have already indicated my opinion, however, that the Minister is not bound to hear Mr. and Mrs. Haj-Ismail when he comes to consider the applications for resident status or for that matter to consider again whether or not to deport Mr. and Mrs. Haj-Ismail. Accordingly, Order 4 must be set aside.
I agree with the orders proposed by the Chief Judge and Mr. Justice Franki.
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