Mustafa, A v The Honourable Young, M.J

[1987] FCA 307

NOT FOR DISTRIBUTION

.

IN THE FEDERAL COURT OF AUSTRALIA )

)

V. No. G 61 of 1987

VICTORIA D STRICT REGISTRY ) )

GENERAL DIVISION )

AMIRUDDIN MUSTAFA Applicant

and

THE HONOURABLE MICHAEL JEROME YOUNG

(who is sued in his capacity as the ~ ~

Minister of State for the

Commonwealth of Australia for

Immigration and Ethnic Affairs)

On 4 March 1987 a delegate of the Minister of State for Immigration and Ethnic Affairs made an order under 5.18

of the Miqration Act 1958. The substance of that order was

that the applicant was a prohibited non-citizen by virtue of

5.7 of that Act in that he was the holder of a temporary

entry permit which had expired and no further entry permits

applicable to him had come Into force. The operative part of

the deportation order was that the applicant be deported from

Australia pursuant to 6.18 of the Miqration Act 1958.

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The applicant has brought these proceedings under

the Administrative Decisions (Judicial Review) Act 1977 ("the

Judicial Review Act") seeking review of that decision.

Implicit in the deportation order are two other decisions,

namely, a refusal to grant a temporary entry permit under sub-section 7(2) of the Act, and a refusal to grant what

might be described as a permanent entry permit under

paragraph 6A(l)(e) of the Act. Under s.7, power is given to

the Minister to grant temporary entry permits to a person in

Australia who was in Australia originally under a temporary

entry permit which had expired. Under paragraph 6A(l)(e), a

permanent entry permit may be granted to a person if that person is a holder of a temporary entry permit and there are strong compassionate or humanitarian grounds for the grant of

an entry permit to him.

"he application for an order of review 1s based on

a number of grounds which are set out in the application

itself. "he applicant is an Indonesian born in September

1954. He was in Australia pursuant to a temporary entry

permit in the years 1972 and 1973 and on 19 February 1974

returned to Australia pursuant to a temporary entry permit to

enable him to undertake studies in the engineering

profession. The various entry permits to enable him to

conduct those studies finally ceased to operate and be in

existence as from 1 July 1980. Thereafter, the applicant

remained in Australia and by reason of the provisions of the

Micrration Act became a prohibited non-citizen. He was

detained on 4 February 1987. Since then he has remained in

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custody pursuant to the provisions of the Mlcrration Act.

After he had been detained he made application to seek what

1s called a change of status being the applicatlon for the

perrnlt under s.7 and s.6A of the Micrration Act. Those

applications failed and on 4 March 1987 the deportatlon order

was made. Presently before the Court is a motion that the

execution of the deportation order made on 4 March 1987 be

stayed until the hearing and determlnation	of the application
of review of the order Itself.

In approaching this question of the stay of the deportation order I take into account firstly, whether there is any serious issue or argument to support the order of review. If there is any such serious issue or argument I take the view, having regard to the peculiar nature of

deportation, that the balance of convenience would be that

the stay should be granted to enable the Court to hear and

determine the application of review.

I turn therefore to consider whether there appears or is any basis for saying there is some questlon or issue to

be tried and as presented to the Court today. Before the Court is the statement given by the respondent pursuant to

s.13 of the Judicial Review Act and relying upon that the

applicant claims there are two matters which give rise to a

question which justifies the Court saying there is a serious

question to be tried and therefore justifying the granting of

the stay. These issues both arise from the grounds contained

in paragraph 5(l)(a) of the Judicial Revlew Act, namely, the

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ground that a breach of the rules of natural ~ustlce has occurred in connexion with the making of the declsion. It 1s clear that as a general rule the princlples of natural justice do not apply in relation to deportation orders made

under 5.18. There is a gloss on that general rule enunciated

in the case of v. Minister for Immisration and Ethnic

Affairs (1985) 62 A.L.R.	321, and I come	to that gloss in	a
moment.

The particular grounds upon which the applicant

relies in the present case is that there has been a breach of

the rule of natural lustice in two respects. First, the

decisions were made on the basis of acceptance of the

assertion that any loss of face to the applicant would be

similar to that suffered by all Asian students and,

therefore, should be given little weight, without giving the

applicant an opportunity to be heard; and second, the

decisions took into account the inability of the applicant to

make a success of life in Australia or Indonesia without

giving the	applicant	an opportunity to be heard on this
assertion.

Those particulars are set out In paragraph 3(a)(il)

and (v) respectlvely of the applicatlon itself. It was

argued that those two grounds come within the gloss contained

in and m this regard reference was made to what was

said by Mason J. at p.349 and what was said by Brennan J. at

p.380. In substance, those passages suggest that where the

decision-maker has before him, or relies upon some assertion

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whlch is prejudlcial or signlficant as far as the prohibited

non-citizen 1s concerned and that person has had no

opportunity of answering that assertlon there has been a breach of the rules of natural justice. In other words, if there is something of an unusual nature which may affect the decision-maker, the declsion-maker should glve an Opportunity

to the person to be adversely affected by the decision an

opportunity to answer that assertion. The assertion however, must be of a prejudicial nature to the prohibited non-citizen

and of a signlficant fact. In K , - the most important of

those statements which were not put to Mr. Kioa before the

decision was made related to an assertion that he had

assisted other illegal immigrants in Australia and also, as

far as Mason J. was concerned, the question of whether he did

not apply for a further extension because of events which had

occurred in Tonga following a cyclone on that island about

the time he was due to apply, if he wanted to, for a further

entry permlt.

In the present case, the 5.13 statement is in the

form of a report to the delegate and contains a recommendation that the delegate refuse the grant of resident

status and sign an order for the deportation of the applicant. The statement takes the form of the requirements

of s.13 in that it sets out the findings on material

questions of fact, and in this regard reference is made to

paragraph 7 of the statement which sets out a number of

matters raised by the applicant during an interview on 4

February 1987. I do not propose to refer to all of those

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matters, but it is clear that among them are the statements

that he had never worked overseas, either as a child or

student, and in Australia had worked as a kitchen hand; that

he had studied at Swinburne College as an engineerlng

student, but not completed the course; had no formal skills

or qualifications; and had no assets in Australia or

overseas. None of those facts are challenged in the present

case. The statement also contains the fact, In paragraph 8,

that there had been a breakdown and fallure of his studies caused by personal problems, namely, his famlly's refusal of his request to be allowed to marry, hls estrangement from his

family now of nine years duration, and his intention not to

see them again; and other matters including his resettlement

problems in Indonesia. The statement then sets out the evidence or other material on which the findings are based, and they are annexed as part of the s.13 statement. The

third section of the statement is headed "Assessment", and

really comes down to a consideration of the reasons why	the
recommendation was made and also why the deportation order

was made. Reference is made to the fact that the applicant

is a prohibited non-citizen; that he has committed offences

under the Act, namely, by becoming a prohibited non-citizen

and engaging in employment. The fact that the application

could be granted, in other words there is power to grant the

application for a temporary entry permit to enable the

delegate to then consider whether a permanent entry permit

should be granted under paragraph	6A(l)(e) of	the Act	was
stated.

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Paragraph 15 is a paragraph which sets out the grounds upon whlch the applicant relies in his aPP~lcatlon to

be allowed to remain in Australia on compassionate grounds.

Those factors are set out and are said to be presented by the applicant in support of his claim for resident status. Among

those set out include his difficulties and failure as a

student caused by his parents not giving him permission to

marry, his inability to seek regular employment because of

his status, his length of residence in Australia, his

alienation from Indonesian life and a dislike of corruption and fear of imminent civil war, and his loss of face should he return to Indonesia as a failed student. It will be noted

that that last ground, or factor, was one which was said to

be the basis for the introduction f a requirement of natural

justice in this case. This it is said, arises because in

paragraph 16 reference is made to that. Paragraph 16 is as

follows : -

“16. To balance against the factors in favour of

the subject set out in the above paragraph it would be appropriate to take into account the

following: . . . ”

and there are then set out a number of matters including	the
following:-

0, -	that the deterioriation of his relationship
with his family and possible loss of face on
return to Indonesia would apply to all Aslan students in his situation and should therefore be accorded llttle weight; . ”

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Reference is also made to the factor of the alienation from life in Indonesia and that more signlficant weight should be

given to that factor than to the others.

It is argued that what occurred here was that the

earlier material upon which the report and statement was

based had in it a reference to embarrassment which was not

the same as loss of face, but I place no reliance on that

submlssion whatsoever. What has occurred here is that the

applicant has claimed that there would be loss of face or

embarrassment should he be required to return to Indonesia as

a failed student. As against that, the decision-maker has

said that is all very true, but that is not really different

to any other Asian student in his situation and this is

really a response in a weighing operation, a balancing

operation, to the factor relied upon by the applicant.

In my opinion, it is certainly nothing like what

occurred in U. It is not new material at all. It is not something of which the applicant had no knowledge. It was introduced by the applicant himself and the decision-maker is

relying upon that and responding to it as part of his

balancing duty in determining what weight to give to that

factor. In my opinion, there is nothing In this ground which

gives rise to a situation where the rules of natural justice

should be brought into play to require the decision-maker to

give notice of this aspect of it to the applicant. In this

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regard I refer to what was said by Fox J. in Slnnathambv v.

Minister for Immioratlon and Ethnlc Affairs (1986)	66 A.L.R.
502 at p.506:-

"In Kioa's case, the material held to require

that a chance be given to comment had come from a

source other than the applicant. In the present

case, as his Honour found, the material which was

prejudicial to the appellant had been provided by

the appellant herself. In the circumstances, I

consider that the decision-maker was not required

to give the appellant	a chance to comment on the
view that he had taken	of it; to do so would amount

to a general requirement that a declsion-maker make

known in each case his view or evaluation of the

material that an applicant puts forward: see

per Brennan J at p 380. His thought processes, if

not unreasonably based on evldence, or other

material, are a matter for hlm. I agree with his

Honour that there was	no denial of natural justice
in this respect.

!he other ground relied upon was one which was not

referred to at all in the s.13 statement. The argument is

put that in the material before the decision-maker was a

report by another officer of the department which appeared in

a long report written by that officer	which included the
following paragraph:-

'"R MISTAFA'S liking for life in Australia is

understood although on past performance I doubt his

capacity to make a success of life either here or

in Indonesia. I believe that the grant of resident

status will, in all probability, lead to hls

becoming a long term recipient	of social securlty
benefits."

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There is nothing in the 5.13 statement dealing

speclfically with that matter, but looklng at the facts found by the officer concerned, and thus by the maker of the declslon, it is quite apparent that what was said In the

paragraph just read out was completely consistent with the

history of the applicant in Australia. Again, for reasons

similar to those given earlier, I can see no basis for saylng

that this gives rise to a situation where the rules of

natural justice should be applied. None of the facts set out in the 5.13 statement are in fact challenged in this regard. The history of the applicant in Australia is entirely

consistent with the reaction of the person making that

report. It cannot be said that they are matters of prejudice

or of any significance to the applicant. They are, in

substance, responses to the claims by the applicant and what

was said by Fox J. in the case already referred	to, has equal
application here.

Having regard to all the submissions made on behalf

of the applicant, I can see no basis whatsoever for saylng

that there is any arguable or serious issue to be tried in

this case and, therefore, the motion is refused with costs.

I certify that t!1k and the :,,ne (1)

pwrdlng pages are II true copy of L !

Hco~on3 for

f u d p e n t herein of

the

Hanourabie Mr. Justice

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