Naidu, N v Minister for Immigration and Ethnic Affairs

[1994] FCA 17

l 7

JUDGMENT No. ........ ........ .. I ....,.......

IN TRE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	1	No. VG 5 of 1994
1
GENERAL DIVISION	1
B E T W E E N :

NARENDRA NAIDU

Applicant

and

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

JUDGE:	Heerey J
DATE :	21 January 1994
PLACE :	Melbourne

FEDERAL COURT OF

AUSTRALIA

EX TEMPORE REASONS FOR JUDGMENT

On 30 December 1993 at 5.15 pm the Minister
and Ethnic Affairs made a deportation order against the
applicant. Unless any further order is made, the deportation
order will be put into effect this evening. The applicant
wishes to leave Australia voluntarily and has a ticket booked
on a flight to Fiji leaving at 11.15 tonight. The question
that I have to consider is whether there are arguable grounds

entrant by virtue of s.20(1) (b)(i) (A) of the Migration Act	1958 because he used his brother's passport to enter. He was
arrested on 16 December and interviewed on the following day. At the interview, he told the case officer that he was prepared to return to Fiji and produced a paid ticket. He did not have his passport with him and said he would arrange for that to be sent to Australia. The case officer told him to get an emergency travel document from the Fijian Embassy.
It appears the passport was sent from Fiji but lost in the post. The applicant has recently obtained an emergency travel document.
At the interview, the applicant was given a document headed "Very Important Notice". On the front is a summary of the contents, including:

made out for a conclusion that the deportation order was
unlawful and, if so, whether I should grant some temporary

relief to prevent the order being implemented this evening.

The applicant is a citizen of Fiji, having been born in that country on 24 August 1971. He entered Australia on 27 November 1993. It is common ground that he is an illegal

4. Will I be de~orted?

In the body of the document, paragraph 4 provides:

Will I be deported?

to decide whether to deport you or to require you to	4.1: The minister or a delegate of the minister intends
leave Australia if you do not act within the time allowed below.
4.2: There are two types of deportation orders; one is both mandatory and irrevocable and can only be signed if your "period of grace" has ended. The other can be signed during your "period of graceu and can be revoked in limited circumstances, such as:

for the purposes of making a voluntary departure;
if you are granted refugee status; or
if you are eligible for the grant of an entry permit
on the basis of SA(1) or 5A(M) below.

4.3: If you are now the subject of a deportation order,

you will be deported unless the deportation is revoked.

The notice continues:

5.    Can I do anvthina to avoid deportation?

5.1 Deportation can be avoided by:

(A) Makina an acceptable offer to leave Australia very

micklv .

You may make an offer within two working days to leave Australia very quickly if there is no irrevocable deportation order against you. To do this you must give the Department:

a fully paid ticket to depart Australia within seven

days; and

valid travel document/visa/papers for entry into the
country where you want to go.

If you wish to leave but cannot provide all of these papers, tell the interviewing officer.

A senior officer will either accept your offer to depart or recommend your deportation. If it is decided to accept your offer to department, you may be given a "requirement to leave Australia". If you do not then leave within the time specified, you may be prosecuted

(penalty: $5000, two years imprisonment or both).

The applicant consulted Messrs Ravi James and Associates, solicitors. On 22 December that firm sent a letter by fax to the compliance section of the Department. The letter advised of the firm's instructions of the intention of the applicant to depart voluntarily from Australia and of the fact that he had already made arrangements to return to Fiji prior to apprehension. The letter continued:

"We are also further advised that the applicant has been in correspondence with Miss Gaylene Leonie Harvey for a period of over six months prior to his arrival in Australia and this friendship has now developed and they propose to marry. After arrival, the applicant appears to have spent most of the time with his fiancee but for the fear that he may cause difficulties to her did not disclose the relationship or her name during the interview conducted by the Department. The family of the applicant and Gaylene Harvey have also met and are in agreement for the proposed marriage, which is genuine and it is not contrived for the purposes of migration.

We are requested to seek release of the applicant from detention to facilitate him being able to spend some time with his parents and other members of his family whom he has not met for a considerable length of time and thereafter to depart the country. The applicant proposes to proceed with the marriage and thereafter make any allowable application for migration."

The letter concluded with an offer to submit a pre-paid, pre- booked flight ticket pending the receipt of his travel document from the Fijian authorities and also an undertaking that the applicant would stay with his parents or his fiancee and put up a cash security. A pre-paid ticket was produced on the following day. There does not appear to have been any

On 30 December at 12.40 am, the applicant received a notice of	applicant remained in detention. formal response to that letter from the Department. The	intention to exercise powers under the Migration Act in these
terms :

"You are advised that after two working days, as the case may be, from 16.12.1993, being the date you were last detained in custody under the Migration Act 1958 ("the Act), it is intended to refer your case to the Minister or a delegate of the Minister to consider the question of the exercise of the following powers:

The making of a deportation order against you.

You should advise me immediately and give details in writing if any of the following circumstances apply:

you have applied for or been granted refugee status
or territorial asylum;

you have an outstanding entry permit application or an outstanding application before the Immigration internal Review Office or the Immigration Review Tribunal for review of a decision to refuse an entry permit;

you are subject to a court order that is in force affecting the minister's exercise of either of the power to require you to leave Australia or to deport you.

If you do not advise the department immediately, it will be assumed that none of the above circumstances apply to you.

As I have said, the deportation order itself was made at 5.15 pm on 30 December. The applicant at 5.48 pm on the same day sent a letter by fax to the Department in these terms:

"In reply to your letter dated today, I wish to inform you that although I am a refugee, even then,

I am intending to go back to Fiji.

to Fiji. The only delay is my passport. MY	I have given you my air ticket dated 21.1.94 to fly
relatives had contacted Fijian authorities for my passport but it takes time. Because of the Christmas holidays, everything is closed.
Although I have paid $95 for an emergency passport, if that comes, I will go. You are aware of the facts, so why you are rushing to issue a deportation order when it is not necessary, I believe, when I am voluntarily departing this country. In the first place, I would not have come on somebody else's passport if your embassy in Fiji would have given me a visitor's visa where I have applied 10 times, always rejected.
If the deportation order is issued, I will challenge it in the court of law. Hoping to receive a favourable reply."

Subsequently the applicant's solicitors made application for the revocation of the deportation order. On 18 January 1994 the delegate of the Minister refused that request. That refusal was advised to the applicant's solicitors by letter on 19 January. The argument before me, however, turned on the deportation order itself and whether or not there was an arguable case to its invalidity. If there is, then the validity or otherwise of the refusal to revoke the order would not be immediately relevant.

Natural Justice of intention to make the deportation order at 12.40 pm on 30 December and the order was made at 5.15 pm on the same day he had no opportunity to seek legal advice and "appropriately respond". He points to the fact that 30 December was in the

holiday period and many legal offices are closed.

In my opinion there is no arguable case on this ground. I assume without deciding that the making of a deportation order under s.60(1) of the Act is subject to the rules of natural justice. However, it does not appear to me that the evidence discloses any arguable case of a breach of that obligation.

The applicant, who gave evidence before me and appears an intelligent man, committed a serious and blatant breach of the migration laws of this country by attempting to gain entry on another person's passport. Any person would recognise that as a serious offence which by its very nature would be likely to result in deportation from any country to which entry was so obtained. That position was, of course, made quite explicit to the applicant in the interview of 17 December when he received the notice to which I have already referred.

He then obtained legal advice and his solicitor's letter of 22 December plainly is based on the premise that he expects that, unless his application to leave voluntarily is accepted, he will be deported. Therefore, it is not at all a case where the applicant has only 5 hours notice of deportation. He must have known from the time he entered Australia that he would be at risk of deportation if his unlawful entry was discovered. In any event, that consequence was specifically drawn to his attention on 17 December. Shortly thereafter he had legal advice and the ability to put forward material or argument

which he thought might persuade the Minister not to deport	him.
Moreover, the evidence does not disclose any particular matter that he would have wished to put before the decision-maker but could not because of the alleged short notice. The central features of his case, namely, that he wished to marry Miss Harvey and that he had the means of returning to Fiji at his own expense in the immediate future, were already known to the Department before the deportation order was made and the applicant knew that the Department knew. The fax that he sent on 30 December which, of course, was after the deportation order was made does not disclose anything new except perhaps the fact that he had been refused a visa 10 times by the Australian Embassy in Fiji, but that is hardly a matter which could bear in his favour in any decision whether or not to deport him.
Proper Exercise of Power - Failure to Consider Proposal for Voluntary Return
The application for order to review which was filed in this Court on 10 January alleges that the decision to deport was an improper exercise of the power because the applicant had indicated his intention to return to Fiji and had produced an airline ticket, and attempts have been made to have his Fijian passport sent to Australia and, in addition, the applicant had applied to the Fijian Diplomatic Mission in Australia for the issue of an emergency travel document to facilitate his return
to Fiji.
This ground did not loom very large in the argument before me which was more directed to another ground of alleged improper purpose to which I shall refer in a moment. However, it was not abandoned by counsel for the applicant and I shall deal with it. The short answer, I think, is that there is no basis for concluding that the matter was not taken into account. The Department was made aware at the interview of 17 December and by the solicitor's letter of 22 December of his proposal to depart voluntarily.
The situation is somewhat complicated by the fact that s.60(1) provides for the Minister to make a deportation order "after considering the prescribed matters and no other matter" (emphasis added). The "prescribed matters" are set out in reg.7.15 and do not include any proposal to leave voluntarily. In contrast, reg.7.18, which deals with revocation of a deportation order under s.63(1), does include proposed voluntary departure as a "prescribed matter"; see reg.7.18(c)(i). As has been seen, however, the notice that was given to the applicant did speak of deportation being avoided by "making an acceptable offer to leave Australia very quickly". It may be that this apparent anomaly can be explained on the basis that an informal agreed departure, very quickly after the arrest of an illegal entrant, means in reality that the formal deportation process will not be set in train. In other words, the notice given to the applicant was
really dealing with the time (necessarily a very short period)
before the s.60 machinery was invoked.
But be that as it may, the reality of the matter is that the Department was fully aware of the applicant's wish to return to Fiji voluntarily and the delays caused by the non availability of his passport. The Department was not obliged to accept his proposal and the reason for the delay was certainly not the fault of the Department. Indeed, ironically enough, that delay was related to the very breach of the law which resulted in him being in Australia in the first place.
Improper Exercise - "rushing through" Deportation Order. that the Department, once it became aware through the letter of 22 December of the applicant's proposal to marry Miss Harvey and subsequently return to Australia, "rushed through" the deportation order so that he would be subject to the five year restriction which applies to the return to Australia of
deported persons : Migration Act s .48.
The only evidence put in support of such case was circumstantial. It is said that because no deportation order was made prior to 22 December and the deportation was made after that date, the inference to be drawn is that had it not been for the disclosure about the proposed marriage in the letter, the deportation order would not have been made. I simply do not think that follows as a matter of logic. As I
country's migration laws and the logical consequence of that, have said, the applicant committed a serious breach of this
as a matter of law and common sense, was that deportation was virtually inevitable.
There is nothing in the evidence to resist the conclusion that deportation was the natural consequence that would follow, once he had been arrested. Conversely, there is no basis for concluding that had it not been for the disclosures in the

JUDGES CHAMBERS,

FEDERAL COURT OF AUSTRALIA,

450 LITTLE BOURKE STREET.

MELBOURNE. 3000

1 February 1994

Sonia Cornale
Federal Court of Australia
Principal Registry
Law Courts Building
Queens Square

SYDNEY NSW 2000

Dear Sonia,

Re:  Narendra Naidu v Minister for Immiaration and Ethnic

A£ f airs

No. VG 5 of 1994

I enclose a copy of the judgment delivered by his Honour Mr

Justice Heerey in the above matter on Friday 21 January 1994.

This judgment is not for general distribution.

Regards,

r & ennan

Associate to Heerey J