Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3)

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT	REGISTRY	)	No. 311 of 1987
1
GENERAL DIVISION	)

BETWEEN:

JENS

INGO

SCHLIESKE

Applicant

AND :

THE

MINISTER

FOR

IMMIGRATION AND ETHNIC

AFFAIRS

First Respondent

JOHN REGINALD TUCHIN

Second Respondent

ROSS WILLIAM ROBILLIARD

Third Respondent

Coram:

GUMMOW J.

Place: Sydney

Date:

14 July 1907

REASONS FOR JUDGMENT (EXTEMPORE)

These proceedings were

commenced by an application

filed on 9 July 1987. On 10 July 1987, after an initial hearing of an application for interlocutory relief in respect

that application, directions

were given with

a vlew to

having the matter ready for hearing on an

2 .

today. Pursuant to those directions the applicant has filed an amended application for review under the provisions of the Administrative Decisions (Judicial Review) Act 1977, which I shall call the ADJR Act.

The applicant relies upon two affldavits sworn by his solicitor, Mr O'Brien on 9 and 13 July 1987. There is no evidence from the applicant himself. The respondents to the amended application rely upon the affidavit of the third respondent, Mr Robilliard, sworn today.

The

present

applicatlon

arlses

out of what the

applicant apprehends is

the imminent carrying into effect of a

deportation order made

in respect of the applicant on 3 October

1986 under s.18 of the Migration Act 1958, whlch I shall call the Migration Act. The deportation order recited that the applicant was deemed to be a prohibited non-citizen by virtue of s.16(1) of the Migration Act, in that the applicant was not

at the time of his entry into Australia on 29 June 1986 an Australian citizen and in that at the time of that entry he produced to an officer of the Department in respect of his

entry Into Australia a

p ssport that was not issued to hlm; in

addition, the applicant was

not the holder of an entry permit

of a kind referred to in that section of the Migration Act.

The making of the deportation order on 3 October 1986 was preceded by a submission to the decision maker dated 2 October. The submission was a document of some 23 paragraphs supported by detailed annexures.

It appears

that the applicant flrst entered Australia

on 26 June 1985 at Sydney and for the purpose of securing entry into this country he produced an Italian passport issued under

another name and

endorsed with an Australian visa.

He was

granted a temporary entry permit

valld until 2 4 August 1985; he

was subsequently granted two further temporary entry permits. The second of these was for a perlod to expire on 26 December

1985. The applicant departed Australla under the name of the person identified in the Itallan passport. He	did so on 25
December 1985.

The applicant returned to Australia on 29 June 1986 and it is the circumstances of this entry into Australia whlch are recited in the terms of the deportation order that I have described. On this occasion, the applicant produced a Swiss passport issued in the name of another person and again endorsed with an Australian visa. The applicant was granted a temporary entry permit. This entry permlt was for a stay of six months and was endorsed "Employment prohibited without written permission of an authorized officer".

4 .

It follows from the above that the applicant, by the operation of 6.16(l)(b) of the Migration Act, was deemed to be a prohibited non-citizen in that for the purpose of entering into Australia he had produced to an officer of the Department a passport that was not issued to him.

On 12 August 1986 the applicant was arrested by officers of the Australian Federal Police in Sydney on an extradition warrant issued in the Federal Republic of Germany. He remained in custody until his release at St James Local Court on 26 September 1986, when it was found that the evidence against him did not comply wlth the requirements of the extradition legislation.

The applicant was arrested pursuant to the power contained in s.38 of the Migration Act following his release from custody in the extradition matter, The applicant was interviewed by an officer of the Department on 29 September 1986. He said in the course of that interview that he would like to remain in Australia for varied reasons, including his wish to marry his Australian girlfriend. He also said that he did not wish to return to Europe because he had “no interest in their nuclear politics and attitudes”. Attempts to reach the person described as the applicant‘s girlfriend were made by the Department but were unsuccessful.

5 .

The evidence is that on the same day as the interview was conducted the applicant was, by letter from the Department, informed of his status under the MigKatlOn Act and invited to provide written submissions for consideratlon by the Minister's delegate in connection with the determlnation of the question

of whether he should be permitted to stay in Australia or be

deported from Australia. There is no evidence directly indicating that this letter was recelved by the applicant, but I infer that it was received by him, and, in any event, the record of interview of 29 September 1986, which is in evidence, contains the question:

Are you OK others intending to make written submissions on your behalf? If yes, from whom?

The answer was:

Expect solicitor (W. O'BKien) to make submisslon

No such written submissions were

received.

I have mentioned proceedings between the applicant

and the government

of the Federal Republic of Germany. These

proceedings were

complex and included several hearings in this

Court. They culminated in an order of this Court made by consent on 9 July 1987 which had the effect of ordering that the applicant be released from custody. However, on 9 July

1987 a written direction expressed to

be pursuant to s.39 of

the Migration Act was

issued to the Superintendent of the

Metropolitan Remand Centre at Malabar, New South Wales. This directed that the applicant be kept in custody at that institution pending deportation and until he is placed on board "a vessel for deportation". The reference to "vessel" picks up the language of the definition in 6.5(1) of the Migration Act which provides that the term "vessel" includes an aircraft. It was consequent upon the maklng of this order under s.39 of the Migration Act that the present proceedings

were instituted in this Court on 9 July.

The applicant seeks interlocutory relief which would

have the effect of staylng the taking of any action under the deportation order made on 3 October 1986, pending a final

hearing. The applicant also seeks

an interlocutory order that

the applicant be released from custody.	The application 1s
put on several bases.

First, an

attack was directed to the circumstances in

which the order under 5.18 of the Migration Act was made in October 1986, as indicatlng a lack of procedural fairness (ADJR Act, 5 . 5 (l)(a)). However, the material now before the Court discloses, qulte clearly in my view, that the decision maker had before him material which indlcated that the

applicant had had

extended to him sufficient opportunities for

the making of representations and that he had been extended procedural fairness in the circumstances of the case, wlthin

the meaning

of Kioa v The Minister

for Immlgration and Ethnlc

l .

Affairs, (1985) 62 ALR 321. It was also said on behalf of the applicant that the decision maker had failed to take into account the alleged willingness of the applicant to leave the country on his own accord p ovided he were able to choose his destination. (ADJRAct, s.5(l)(e) and s.5(2)(b)) However, the evidence shows the question of voluntary departure was before the decision maker. In the submission of 2 October 1986, one stated purpose of the submission is to obtain a decision as to

whether there should be a refusal of the concession of a supervised voluntary departure. The decision maker decided against that concession.

Then it was said that the existence of the extradition procedures was wrongly taken into account (ADJR Act, s.5(l)(e) and s.5(2)(a), s.5(2)(c) and s.5(2)(])). The complaint is, as I understand It, that in making the deportation order the decision maker had in mind the use of the procedures under the Migration Act as a fall-back mechanism to be used if the West German government were

unsuccessful in its extradition proceedings. There is no evidence that at the time of the making of the order on 3 October 1986 the decision maker had this in mind. Certainly there was material referring to the existence of the extradition procedures, but not in the manner relied upon by the applicant. There are no serious questions to be tried, which arise from any of the foregoing submissions for the applicant.

The second ground of attack is directed to what has happened since the deportation

order was made and to the

circumstances which are said to surround the delay in the

execution of that order.

It will be recalled that s.18 of the

Migration Act provides

that the Minister may order deportation

of a person

who is a prohibited non-c~tlzen under any

provision of the Migration Act.

Further, 6 . 2 0 provides that

where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly. It goes on to provide that the valldlty of an order for the deportation of a person shall

not be affected by any delay

in the execution of that order.

I should observe there is no evidence in the present case of any application to the

Minlster to revoke the order in

question, within the

meaning of s . 2 0 .

Section 39 provides

that where an order for

the deportation of a person is in

force, an officer may, without warrant, arrest a

person whom

he reasonably supposes to be that person, and the legislatlon goes on to provide for the keeping of such a person in custody. Section 39 may thus be seen as accessory to the provisions of 6.18 and s . 2 0 . The flrst question that arises

on this aspect of the case is whether there is presented any decision under the Higration Act in the sense required for the

bringing Into operation

of the ADJR Act. Two decisions

of the

Full

Court

this

Court

are in

point.

The first is

Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471; the second is Mahoney v Dillon (1987) 71 ALR 395. The first decision establishes that the Migration Act gives the Hinister no statutory power, expressly or impliedly, to suspend a deportation order, with the result that any conduct in and about the execution of the order is not conduct which attracts the operatlon of the ADJR Act. There is, as I have said, a power of revocation but the Full Court distinguished it from a suggested statutory power of

suspension.

Likewise,

the second case decides that s . 2 0

contemplates that, unless revoked, the deportation order will be complied with and that in the absence of a request for revocation of the order under s . 2 0 no relevant decision is involved for the purposes of the ADJR Act.

The substance of the applicant's complaint concerns the delays in the carrying into execution

of the deportation

order of 3 October 1986. It is said that that delay produces

an effect whereby the making of the original order may be

impugned. In my view there is no serious question to be tried

on that issue; in my view the order remains in effect despite

the alleged delay in its implementation. Nevertheless, even

if I be wrong in this and there is any such principle to be

drawn from the provisions of the Migration Act or the general

law, in my view that principle would have no application in

the present case.

10.

It would, in my view, plainly be an appropriate exercise of any statutory discretion which

was reposed in the

Minister, to delay implementation

of the order until the

conclusion of lltlgation in the courts of this country between

the deportee or proposed deportee and another party, in this

case a foreign government. Such conslderations have been

treated as relevant to the antecedent questions that arise

before an order is made under s.18 in the flrst place. By way

of example, I refer to the decislon of Lockhart J in Laremont

v The Minister for Immigratlon and Ethnlc Affairs,(6 December

1985, unreported).

In the present case the appllcant complalns that the

delay is explicable by the concern of the Department, which I have earlier referred to, to use the provlsions of the Migration Act as an alternative or second route for the purposes sought to be achieved by the West German government

in the extradition proceedings. The applicant offered no evidence on this allegation, which would be a serious one. However, the respondents have quite properly placed the

relevant material from

the Department’s documentation before

the Court. This material discloses a conslstent concern on the part of the officers with the conduct of this matter that the Department not use or permit to be used the provlsions of

the Migration Act to facilitate extradition

proceedings.

11.

This appears from a departmental file note dated 10 October 1986 and a further file note dated 12 February 1987, the first being a note of a communicatlon with an officer of the Attorney-General's Department and the second a note of the conversation wlth an officer of the Director of Public Prosecutions. It follows that even if the submisslon that is made 1s one that has any secure legal footlng, it would still lack, in my view, any serious factual issue to be tried, the factual material pointing entirely in the one directlon, a dlrection away from the case sought to be made by the applicant.

A third ground of attack 1 s related to the grounds

already described,

but should be consldered Independently. It

1s that the provisions of the Migration Act dealing wlth the

making and execution of deportation orders do not confer a particular to the judgment of Walsh J who spoke for the majority in that case. I agree with the submissions for the respondents upon this point.

power to bring about the deportatlon of the deportee to a

particular destination where that destlnation 1s one

unacceptable to him and where he would wish to propose

practical alternatlves. The respondents assert that there is

such power, or, to put it more accurately, that the general

terms of the legislation are not inhibited by the placing upon

them of any restrictlon of thls type. They refer in

particular to the decision of the Hlgh Court of Australia in

12.

I would point out that I have taken into account the

possibility

that

special

circumstances

could

arise,

indicated

the joint judgment of

M r

Justice Beaumont and

myself in Mahoney v Dlllon (1987) 71 ALR 395 at 401. However,

I should add that the reference there to the decision of Ryan

J in Daguio v The MinlSteK for Immigratlon and Ethnic Affairs,

(unreported, 31 October 1986), at page 18, is to be understood

in the setting

of that case. This proceeded upon

a concession

made for the respondent Mlnlster that the declslon made by the

Minister or an authorized officer subsequent to

a deportation

order as to the place to which the deportee is to be taken (as

Contemplated by s.21(3) or (3A) or s.21A(1) or s.22(1)) is

itself reviewable at the instance of the deportee. There is,

in any event, no evidence before me as to the making of any

such decision as mentioned in those provisions.

Lastly, an attack is made upon the second direction

issued pursuant to

s.39

of the Migration Act

- namely, the

direction of 9 July 1987. The first direction, made in 1986,

was treated as spent by subsequent events involving the

extradition

proceedings,

and

accordingly

attentlon

was

focused upon the second and current direction.

I accept the

submission

the

respondents

that

the

issue

such

direction would not, at least in the circumstances of this

case, require the observance of procedural fairness such as to

require the decision-maker to present an opportunity for

further submissions by the applicant.

13.

It is also said that the power under

6.39

has been

used --

de facto to achieve an object outside the provisions of

the Migration Act

- namely, the extradition of the applicant.

As to that, I need say no more than what I have already said as to the care taken by the respondents to exercise their

powers under the Migration Act in this case with

a view simply

to the observance of the requirements of that Act, not any

other legislation.

I should add that reference was made by counsel for the applicant to the decision

of the English Court of Appeal

The Queen

The Governor of Brlxton Prison; Ex parte

Soblen, 119631

2 QB 2 4 3 .

The applicant sought some comfort

from

this

decision.

That,

course,

not

a decision

illustrative of the operation of legislation in this country. situation existed in Britain in 1962, deportation was an act

of an executive character, not of

a judicial or quasi-judicial

character. It followed under the law, at least as it was then understood in England, as to interference by prerogative writ

that an alien was not entitled to an opportunity

making

representations against the making of an order. In the course

of his decision in that case, the Master of the Rolls raised

the question of whether the applicant might be entitled to an

opportunity of making representations against execution	of the
deportation order (see 119631 2QB at 298).

1 4 .

The position in this country is radically different. The principal ruling of the Court of Appeal - namely as to judiclal restraint in respect of the making of deportation orders - is, of course, greatly at odds with the operation of the ADJR Act upon a wide range of decisions under the Higration Act, including those under 6.18: see Kioa's Case (supra). It follows that the limitation on the court's role which was the basis of Lord Denning's comments in Soblen's case does not apply in this country.

Accordingly, I have reached the conclusion that there

are presented in the material before me

no serious questions

to be tried within the meaning

of the authorities discussed in

their application to this area by Northrop and Pincus JJ in their joint judgment in Dallikavak v The Minister for

Immigration and Ethnic Affairs, (W).

I am prepared to

accept that the balance of convenience would appear, as is

usually the position in these cases, to

favour the applicant;

but that, of course, is not

sufficient.

It follows from what

I have said as to the absence of serious questions	to be tried
that the present application should be dismissed.

The respondents do not seek costs

15.

I certify that this and the fourteen (14)

preceding pages are a true copy of the

Reasons for Judgment of his Honour Mr Justice

Gurnmow.

Associate:

1987

July

Date:

Counsel and Solicitors for

Appl i cant :

M r B. Purves

instructed by Mr W.P.

O'Brien.

Solicitor for the Respondents:	M r S. Daley,
Australian Government Solicitor.
Dates of Hearlng:	10 and 14 July 1987
Date of Judgment:	14 July 1987

[1987] FCA 393

14 Jul 1987