Piroglu, Nural v MacPhee, Ian (Minister for Immigration and Ethnic Affairs)

[1981] FCA 82

Re: NURAL PIROGLU
And: THE HONOURABLE IAN MACPHEE, MINISTER OF STATE FOR IMMIGRATION AND ETHNIC
AFFAIRS AND THE COMMONWEALTH OF AUSTRALIA (1981) 55 FLR 99
No. V.G. 81 of 1981
Immigration and Aliens - Administrative Law - High Court and Federal Judiciary

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.(1)

CATCHWORDS

Immigration and Aliens - prohibited immigrant - decision to deport - custody pending deportation - claim for refugee status.

Administrative Law - application for Order of Review - application for stay of proceedings under decision - motion seeking interlocutory injunctions requiring release of prohibited immigrant from custody pending hearing and determination of application for Order of Review and claim for refugee status - whether rules of natural justice applicable.

Federal Court of Australia - practice - source and nature of power to grant interlocutory injunctions as sought - whether prima facie case made out - discretion - factors considered - policy of Migration Act.

Administrative Decisions (Judicial Review) Act 1977 ss.5, 8.

Federal Court of Australia Act 1976 ss.19, 23.

Migration Act 1958 ss.18, 20, 41.

Immigration and Aliens - Prohibited immigrant - Decision to deport - Custody pending deportation - Claim for refugee status.

Administrative Law - Application for order to review - Application for stay of proceedings under decision - Motion seeking interlocutory injunctions requiring relief of prohibited immigrants from custody - Rules of natural justice are applicable.

High Court and Federal Judiciary - Federal Court - Practice - Source and nature of power to grant interlocutory injunctions - Whether prima facie case made out - Discretion - Policy of Migration Act 1958 (Cth) - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 8 - Federal Court of Australia Act 1976 (Cth), ss. 19, 23 - Migration Act 1958 (Cth), ss. 18, 20, 41.

HEADNOTE

The applicant was a twenty-five year old Turkish citizen who entered Australia on 31st December, 1980, on a two month temporary entry permit. On 14th April, 1981, he was arrested in Australia as a prohibited immigrant. On 24th April, 1981, a deportation order was made against him. On 12th May, 1981, he was to be placed on an aircraft bound for Turkey. He applied, pursuant to the Administrative Decisions (Judicial Review) Act 1977 for an order to review the deportation order. Subsequently undertakings were given that he would not be deported until the determination of his application for review.

Whilst in custody the applicant sought refugee status pursuant to the Geneva Convention and the New York Protocol, both of which have been acceded to by Australia. The applicant did not speak English and it was contended on his behalf that there was a duty imposed on the person holding him in custody to inform him of his rights under s. 41 of the Migration Act 1958, and that as a result of the breach of that obligation the applicant was unable to make his claim for refugee status or to make representations to the Minister before the deportation order was made. It was contended that these circumstances imposed an obligation on the Minister to comply with the rules of natural justice before exercising his powers, which had not been done.

Held: (1) The court has the power to make the interlocutory orders sought.

(2) The principles to be applied by the court in considering such a case are those laid down in Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd. (1968), 118 CLR 618, George Macgregor Auto Service Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd. (1980), 52 FLR 458 and Chan v. Commonwealth, unreported (High Court of Australia, 12th December, 1980).

(3) There is no obligation on a Minister to observe the rules of natural justice in arriving at a decision under s. 18 of the Migration Act.

R. v. MacKellar; Ex parte Ratu (1977), 137 CLR 461, followed.

(4) There is no obligation imported by the provisions of the Administrative Decisions (Judicial Review) Act 1977 to observe the rules of natural justice where no such obligation previously existed.

Capello v. Minister for Immigration and Ethnic Affairs (1980), 49 FLR 40, referred to with approval.
(5) Even accepting for the purposes of this motion that the applicant was a refugee, he was nevertheless a person to whom the Migration Act applied. The domestic law of Australia is not overriden by the Geneva Convention and the New York Protocol.

Walker v. Baird, (1892) AC 491; Bradley v. Commonwealth (1973), 128 CLR 557; Yager v. The Queen (1977), 139 CLR 28, referred to with approval.

(6) On the facts a prima facie case to justify the making of the interlocutory orders sought was not made out.

(7) Obiter. Even if a prima facie case had been made out the grant of such interlocutory orders was a matter of discretion and should not be granted for reasons of the policy of the Migration Act 1958. Such policy considerations should not be overriden save in exceptional circumstances.

HEARING

Melbourne, 1981, June 9-11, 18. #DATE 18:6:1981

MOTION.

The applicant sought interlocutory orders that he be released from custody pending the hearing of his application.

G. B. Johnston, for the applicant.

S. P. Charles Q.C. and G. Moore, for the respondents.

Cur. adv. vult.

Solicitor for the applicant: Erskine H. Rodan.

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

D. LEVIN

ORDER

Orders accordingly.

JUDGE1

On 28 April 1981, a delegate of the Minister of State for Immigration and Ethnic Affairs, in the exercise of powers conferred by s.18 Migration Act 1958 made an order that Nural Piroglu be deported from Australia. The order was made on the basis that Nural Piroglu was a prohibited immigrant by virtue of s.7 of the Migration Act in that he was the holder of a temporary entry permit which had expired, s.7(3), and no further entry permit applicable to him came into force upon that expiration or had been granted to him since. On 12 May 1981 Nural Piroglu was to be placed on board an aeroplane for carriage out of Australia on a flight which, after several earlier landings outside Australia, could take him to Turkey. On 12 May 1981, Nural Piroglu, hereinafter called "the applicant" made application under the Administrative Decisions (Judicial Review) Act 1977 for an order to review the deportation orders made, and in particular the orders to issue the deportation order, to deport the applicant, to deport him to Turkey and to imprison him or order his imprisonment until deportation. On the same day the Federal Court made ex parte orders suspending the operation of the deportation order until 18 May 1981 or further order. On 18 May 1981 the respondents gave an undertaking to the Court that the applicant would not be deported before the determination of the application under the Judicial Review Act. The Court has been informed that the matter will be heard probably in late July or early August 1981. There may be further delays if judgment is reserved or if appeals are taken.

The applicant is and is being kept in custody at the detention centre at Maribyrnong. Counsel for the applicant has moved the Court for orders that the applicant be released from custody pending the hearing and determination of the application to review. Counsel for the respondents, while conceding that the Court has power to make the orders sought, opposes the making of those orders.

The Court has power to make the orders sought. Under s.19, Federal Court of Australia Act 1976, the Federal Court has jurisdiction to hear and determine the application for the order to review under s.5 of the Judicial Review Act, see s.8. Under s.23, Federal Court of Australia Act, the Court has power in relation to matters in which it has jurisdiction to make orders of such kinds, including interlocutory orders, as it thinks appropriate, cf. St. Justin's Properties Pty. Ltd. v. Rule Holdings Pty. Ltd. (1980) 40 F.L.R. 282 per Toohey J. at p.285, and George MacGregor Auto Sales Pty. Ltd. v. Caltex Oil (Australia) Pty. Ltd., Federal Court of Australia, 20 November 1980, unreported, per Northrop J.

The applicant is seeking an interlocutory injunction requiring the respondents to release the applicant from custody pending the hearing and determination of the application to review. The principles to be applied by the Court in deciding such a case are clear, see Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd. (1968) 118 CLR 618. See also the Caltex Oil case, supra, and the cases cited therein, and per Stephen J. in Chan v. Commonwealth of Australia High Court of Australia, 12 December 1980, unreported. The hearing of the motion, however, has not been treated as a preliminary trial and these reasons give effect to that principle.

The applicant is of Turkish nationality. He is twenty-five years of age, married, and has two children. His wife and children are in Turkey, their usual place of residence. He has a Turkish passport. On 31 December 1980 he entered Australia. He was granted a temporary entry permit authorizing him to remain in Australia for a period of two months from 31 December 1980. He holds an airline return ticket to Turkey. He remained in Australia after the expiration of the temporary entry permit. No further entry permit applicable to him has come into force since the expiration of that temporary entry permit. On those facts under s.7(3) Migration Act the applicant became a prohibited immigrant within the meaning of that Act. Section 18 of the Migration Act is as follows -
"18. The Minister may order the deportation of a person who is a prohibited immigrant under the provisions of this Act."
The deportation order was made on 28 April 1981.

On the facts so far stated, the applicant cannot make out a prima facie case in the requisite sense to justify the making of the interlocutory orders sought. In R. v. McKellar, Ex parte, Ratu (1977) 137 C.L.R. 461, the High Court held that the power conferred on the Minister by s.18 Migration Act is not subject to an obligation to observe the rules of natural justice. After contrasting s.18 with other provisions of the Migration Act, Mason J. at pp.478-9 states clearly the nature of the power conferred by s.18 -
"The character of the power to make a deportation order under s.18 may be deduced partly from the circumstances that it is exercisable in relation to a prohibited immigrant, that is, a person who enters or remains in Australia without lawful authority. Unlike entry into Australia without a permit - which does constitute an offence under s.27(1)(a) - remaining in Australia after an entry permit has been cancelled or has expired and has not been renewed does not constitute an offence. However, neither the fact that a person may remain in Australia after cancellation or expiry of his entry permit without committing an offence nor the fact that he will cease to be a prohibited immigrant if he stays here for five years, no deportation order being made against him, detracts from his character as a prohibited immigrant in the meantime. He is liable to arrest and detention. He is an illegal immigrant, having no right or title to remain here (Reg. v. Forbes; Ex parte Kwok Kwan Lee (1971) 124 C.L.R. 168, at p.173)).

The making of a deportation order under s.18 therefore provides lawful authority for the removal from Australia against his will of a person who has no right to remain here. It is not the case that the order terminates his right to remain; 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. Deportation, for which the order provides, is then but a consequence of the prohibited immigrant's failure to depart when he has no right to remain."
Since that judgment was delivered, the Migration Act has been amended and now a migrant who becomes a prohibited immigrant upon the expiration of a temporary entry permit that is applicable to him, has committed a criminal offence, s.27(1)(ab) Migration Act as inserted by Act No. 117 of 1979. This does not detract from the opinion expressed by Mason J., see p.477. The Judicial Review Act of itself does not import an obligation to observe the rules of natural justice where no such obligation existed previously, and I agree with the reasons expressed by Franki J. in Capello v. Minister for Immigration and Ethnic Affairs, Federal Court of Australia, 3 December 1980, unreported.

Counsel for the applicant has sought to distinguish those authorities by relying upon a number of additional facts, the effect of s.41 of the Migration Act and the existence of an application by the applicant that he be granted refugee status.

The applicant cannot speak, read or write the English language. From his written application to visit Australia and made while in Turkey, it appears that the applicant stated that he wished to enter Australia to visit his aunt and cousin whom he had not seen for nine years, his aunt had sent him return 'plane tickets and that he did not intend to stay in Australia because he had to go back to look after his mother and the land.

In Australia the applicant stayed with his aunt and cousin who lived at different addresses in Coburg. He was not employed and received no unemployment benefits. He was arrested on 14 April 1981, since when he has been held in custody in accordance with the provisions of the Migration Act. While in custody the applicant made a claim for refugee status under the United Nations Convention relating to the status of refugees that was done at Geneva on 28 July 1951 and under the Protocol relating to the status of refugees that was done at New York on 31 January 1967, both of which have been acceded to by Australia. The applicant claims that if he returns to Turkey his life will be in danger from terrorists on whom he informed to Turkish Government officials. Much of this information was given by the applicant to an officer of the Department of Immigration and Ethnic Affairs in the course of an interview conducted on 16 April 1981. A resume of the answers given by the applicant was forwarded to the Control Branch of the Department in Canberra. Officers of the Department prepared a deportation case summary which contained a recommendation that a deportation order be made. That summary, together with a draft deportation order, was forwarded to Derek Volker, delegate of the Minister under s.66D of the Migration Act for the purposes of s.18. On 28 April 1981, the delegate made and signed the deportation order. On 30 April 1981 the applicant was informed of the order and since then has been held in custody pursuant to s.39 of the Migration Act. The decision to place the applicant upon the aircraft for the purposes of deportation was made by officers of the Department pursuant to the directions contained in s.20 of the Migration Act. Subsequently to the making of the deportation order, the applicant received legal advice. He then made a claim for refugee status. He was interviewed at length. His claim is being considered by a committee known as a Determination of Refugee Status Committee (a DORS Committee) and in all probability a decision on the claim will have been made by the time the application under the Judicial Review Act is heard. During the course of the hearing before me, counsel for the respondents contended that the applicant was not and was not capable of being a refugee under the Convention or Protocol. I do not make any finding on that issue and make no comment thereon, but will assume for the purposes of these reasons that the applicant is capable of being such a refugee.

Counsel for the applicant contended that the applicant was a refugee when he entered Australia on 31 December 1980, but when he was arrested and placed in custody, the person having custody of him did not advise him of his rights under s.41 of the Migration Act. That section provides -
"41. Where a person is in custody under this Act, the person having his custody shall, at the request of the person in custody, afford to him all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his custody."
Although there is no evidence that the applicant made any request, his counsel contended that on the facts of this case, particularly the inability of the applicant to understand English and his lack of knowledge of the laws of Australia, the section imposed upon the person having that custody a duty to inform the applicant of his rights under s.41 to enable him to seek legal advice. It was contended that as a result of the breach of that duty, the applicant was not able to make a claim for refugee status or to make representations to the Minister before the deportation order was made, namely that he was a refugee and should not be deported because of the provisions of the Convention and Protocol. It was claimed that the existence of these special facts imported the obligation on the Minister to comply with the rules of natural justice before exercising his powers under s.18, and since the Minister had not observed those rules, the deportation order should be set aside. These submissions were made on the basis of establishing a prima facie case in the requisite sense to support an interlocutory order. The mere making of assertions cannot make a prima facie case in the requisite sense, and the contentions must be considered to test their correctness.

In support of his submissions counsel relied upon expressions of opinion contained in Salomon v. Commissioner of Customs and Excise (1967) 2 Q.B. 116, In re H.K. (An Infant) (1967) 2 Q.B. 617 and Salemi v. MacKellar No. 2 (1977) 137 C.L.R. 396. In the latter case the members of the High Court were equally divided on whether the special facts of that case were sufficient to import the obligation to observe the rules of natural justice, but even for the purposes of this interlocutory motion, I am bound by the expressions of opinion by the Chief Justice. In any event, the provisions of the Convention and Protocol cannot override the domestic law of Australia, Walker v. Baird (1892) A.C. 491 at p.497, Bradley v. The Commonwealth (1973) 128 C.L.R. p.557 especially per Barwick C.J. and Gibbs J. at pp.582-3, and Yager v. R. (1976) 13 A.L.R. 247 per Mason J. at p.257.

Even if the applicant is a refugee within the meaning of the Convention and Protocol, nevertheless the provisions of the Migration Act apply to him. Under the provisions of that Convention and Protocol the DORS Committee has been set up to examine claims and to advise the Minister who then makes a decision in relation to that claim. A claim for refugee status does not release a person from the provisions of the Migration Act nor can it import an obligation on the Minister to comply with the rules of natural justice in exercising the powers conferred by s.18 of the Migration Act. Under that Act there is power in the Minister to release a prohibited immigrant from custody pending deportation, s.39(7), but that is not a relevant consideration for present purposes. The Minister also may exercise a discretion to allow a person who is not of refugee status to remain in Australia where humanitarian or compassionate factors are present, but likewise those matters are not relevant for present purposes. The decision of the Minister on the claim by the applicant for refugee status is expected to be given prior to the hearing of the application under the Judicial Review Act.

The deportation order under attack does not direct that the applicant be deported to Turkey. It is doubtful if action taken under s.20 of the Migration Act is a decision under s.5 of the Judicial Review Act, cf. Znaty v. Minister of State of Immigration (1972) 126 C.L.R. 1. Insofar as the application is based on this aspect, the applicant has not made out a prima facie case.

This is not a case where there are in any relevant sense disputed questions of fact on which findings need to be made to establish the base for the claims made by the applicant. The questions at issue arise from the application of the law to the facts. I am not satisfied that the applicant has made out a prima facie case in the requisite sense to justify the making of the interlocutory orders sought.

I am conscious of the views expressed by Lush J. in Slater Walker Superannuation Pty. Ltd. v. Great Boulder Gold Mines Ltd. (1979) V.R. 107 at p.110 and approved by the Full Court of the Supreme Court of Victoria in Magna Alloys and Research Pty. Ltd. v. Coffey (1981) V.R. 23 at p.28 -
"The weight to be given to the various considerations shown by the authorities to be relevant will vary from case to case. All the authorities say in one way or another that the plaintiff must show that he has a chance of success before he will be granted an interlocutory injunction. The authorities refer to the use of the injunction for the purpose of maintaining the status quo, or establishing or maintaining a state of affairs which is on the balance of convenience appropriate to be maintained until the trial. They refer to avoiding irreparable harm to the plaintiff. There will be situations in which the plaintiff cannot expect to be granted an injunction unless he can show that he can prove positively the existence of his rights and the infringement of them. There will be other situations in which, though the plaintiff's proof of his rights or the infringement of them is not strong, an injunction may be granted because to withhold it would do the plaintiff irreparable harm, while to grant it would not greatly injure the defendant. The possible variety of situations is unlimited."

In the exercise of my discretion and on the basis that a prima facie case had been made out, I would not grant the interlocutory orders sought. The policy of the Migration Act is clear. Prohibited immigrants should not be left at large in the community pending deportation unless the Minister or an authorized officer exercises his discretion in accordance with s.39. The facts in Chan v. Commonwealth of Australia, supra, are very different from the facts of the present case and do not assist in the exercise of discretion in this case. Here the applicant misled officers of the Department. The expressed reasons for his entry into Australia are completely different from those he now claims were his real reasons. His discovery by officers of the Department was by chance. Further, he travelled to Australia with his sixteen year-old sister whose stated reasons for visiting Australia were similar to those stated by the applicant prior to him entering Australia. She is now a prohibited immigrant, apparently still in Australia but whose whereabouts have remained unknown since the arrest of the applicant. Counsel for the applicant has indicated that stringent conditions requiring the applicant to report regularly could be imposed upon him if released from custody. In addition, relatives of the applicant are prepared to lodge a substantial sum of money by way of surety for his attendance at the hearing of the application under the Judicial Review Act. Despite those offers, in my opinion there is a real danger that the applicant, if released from custody, would merge into the community and seek to become absorbed into the community. I consider this type of case to be very different from the normal "bail" case. In those cases a person has been arrested and charged with a criminal offence but has not been convicted. He is being held in custody pending trial and, prima facie, is entitled to bail. In the present case the applicant has not been charged with any criminal offence. He is a prohibited immigrant and under the Migration Act prima facie should be held in custody. Time limits are imposed by s.38 of the Migration Act and once a deportation order has been made a deportee, prima facie, should be held in custody until deported, s.39 Migration Act. The Court should not interfere with that policy except in exceptional circumstances. In the present case the period during which the applicant is in custody will not be excessive. He is not being held in a jail with criminals and is not being treated as a criminal. He will not be deported before his claim for refugee status has been determined. There are no sufficient reasons to justify an exercise of discretion in his favour.

The motion is refused.