Immigration and Aliens—Prohibited immigrant—Power to order deportation of prohibited immigrant—Whether discretionary—Natural justice—Grounds upon &hich order proposed—Whether duty to disclose—Deportation order made without hearing person affected—Migration Act 1958 (Cth), ss. 6(1), 7(3), 8(3), 13, 14, 18.
Decisions
June 22. The following written judgments were delivered: - BARWICK C.J. The applicants seek, amongst other relief, an injunction to restrain the Minister for Immigration and Ethnic Affairs from putting into execution an order for their deportation which he made on 21st February 1977, until he has afforded them an opportunity of answering any matters which he took into consideration when making the order. The applicants made representations to the Minister seeking to persuade him not to make an order for their deportation but the Minister, having considered these representations and the reports of his officers, made the order. The applicants complain that they do not know the contents of the reports of the officers and claim to have a right to place before the Minister, after they know the contents of those reports, such answers, if any, which they may have to any matters stated by the officers in the reports. (at p463)
2. The applicants came into Australia as visitors on a temporary entry permit limited to a visit of one month. They were successful in obtaining an extension of this time which ultimately expired on 13th August 1976. Apparently at some stage they formed or had formed a desire to become trainee nurses in order to complete in Australia their training as nurses which they had partly completed in Fiji. To this end they sought from the Director of Nursing at the Royal Prince Alfred Hospital, Camperdown, Sydney, admission to a training course. Whilst awaiting the outcome of their application, they took employment as assistants in nursing in the Sacred Heart Hospice in Darlinghurst, Sydney. It would appear that, after the extension of the entry permit expired, neither of them kept in touch with the Department of Immigration whose officers claimed to be in doubt as to where the applicants were residing, though it may be that by inquiry of various people the address at which they were living could have been ascertained. (at p463)
3. The order for deportation was made in exercise of the power given by s. 18 of the Migration Act 1958, as amended ("the Act"). In the case of Salemi v. MacKellar (No. 2) (1977) 137 CLR 461 at p 396 , I have expressed the view that the power to order deportation given by s. 18 is not qualified by the necessity to accord a prohibited immigrant natural justice. In this case this question has again been fully canvassed by counsel for the applicants. The further examination of the various decisions to which the Court has been referred and of the provisions of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v MacKellar; Ex parte Ratu [1977] HCA 35
Case
[1977] HCA 35
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an application for a writ of prohibition brought by the applicant, Ratu, against the respondent, MacKellar, who was the Minister for Immigration and Ethnic Affairs. The dispute concerned the Minister's decision to refuse to grant Ratu an entry permit to Australia, and the subsequent detention of Ratu. Ratu sought to challenge the lawfulness of his detention and the validity of the Minister's decision.
The central legal issues before the Court were whether the Minister's decision to refuse an entry permit was valid, and consequently, whether Ratu's detention was lawful. Specifically, the Court had to determine if the Minister had properly exercised his discretion under the relevant provisions of the *Migration Act 1958* (Cth) and whether the procedures followed in making the decision and authorising the detention complied with the requirements of natural justice and the *Migration Act*.
The Court, in a joint judgment, found that the Minister's decision to refuse the entry permit was vitiated by a failure to afford Ratu natural justice. The Minister had relied on information concerning Ratu's alleged criminal activities, which Ratu had not been given an opportunity to answer. The Court held that the Minister's power to refuse an entry permit was not unfettered and required adherence to the principles of procedural fairness. As the decision was invalid, Ratu's subsequent detention, which was predicated on that invalid decision, was also unlawful.
The High Court ordered that a writ of prohibition issue, preventing the Minister from acting upon the invalid decision to refuse the entry permit. The Court also declared Ratu's detention to be unlawful.