Rokotakilai, S. v Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 1020

l0ZQ 1'3%

JUDGMENT No. ........ .... ..... ........ ....

IN TEIE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) NG 856 of 1992

GENERAL DIVISION 1

Between: SISA ROKOTAKILAI

Applicant

And: MINISTER FOR IMMIGRATION -

AFFAIRS

Respondent

. ,

EINPELD J	SYDNEY	/	i
' ;
The applicant was born in Fiji on 15 October 1955.	He is	,..	. ,

presently divorced, having been married in 1976, separated in	t
1986 and divorced in 1991. His former spouse lives in Fiji	. .
, .
where also are his father, mother and sister. He came to
Australia on 3 January 1986 as a stowaway on a ship called the	, .
I
Oriana. He boarded the ship in Suva without a Fijian passport

and without a visa for travel to Australia.	At the time he	L
!

applying for a visa to study in Australia.

was 30 years of age.	He says that he made the decision to	I.
I /

board the ship on the spur of the moment, that it had always

been his intention to broaden his education in finance and

commerce, that this education was not available in Fiji and	i
that he believed it to be available in Australia. He did not contemplate, because he did not know about, the possibility of

The applicant seems to have arrived in Australia without any need to confront any authorities, and to have travelled to Kings Cross where he met some other Fijian people who arranged a place for him to sleep. His unlawful entry into Australia was compounded when a month after arriving here he commenced work, without authority, as a clerk with an engineering

. company at Milperra. He was employed by this company from

February 1986 until some time in 1988. The company went into liquidation and he then obtained a position as an investment

, - clerk at the St George Building Society where he stayed until

early 1990 when he commenced work with the Mobil Oil Company as a clerk. In May 1990 he became an employee of a company called Small Business Syndication Pty Limited where he has remained ever since. It seems that this company has something to do with an organisation known as Mission Plan International Incorporated to which he was recommended by the pastor of the Assembly of God Church for Fijian People at Rockdale. It is extraordinary that so many employers were prepared to employ a person who had no papers and no entitlement to work in

Australia.

In 1988 he enrolled at the University of New South Wales in the Diploma of Export Management course, which is a part-time course of study in which he is still participating. In 1989 he commenced a course with the Australian Institute of Finance in Sydney, of which he has completed about half and which on completion would entitle him to become, as a member of the

Institute, entitled to participate more fully in banking and finance industries.

Whilst in Australia, the applicant has participated in a number of the activities of the church to which I have referred. Apparently, the church receives a share of the profits of the company Mission Plan, and those profits are supposed to be used for mission work and other church projects throughout Australia and the South Pacific. The applicant describes his activities for the church as embraced within a "ministry". He says that he now has experience in finance, fanning activities and the business in which he is presently engaged, to add to his knowledge of business financing and fanning in Fiji. The applicant says that he is intended to be the person who will co-ordinate or otherwise use his capacities to assist the activities of the church, either in Fiji or in Australia.

On 14 October 1992 the applicant visited the Villawood

person then detained there, MS Karavaki. While visiting the	Detention Centre apparently for the purpose of calling on a
detention centre, he was arrested on the basis of a suspicion, correctly held, that he was an illegal entrant. He was officially interviewed the following day. The interview was recorded and the applicant signed the interview at its conclusion. In his evidence in the witness box in this case, he said that the recorded interview correctly contains the answers which he gave to the questions asked.

At one point in the interview, close to its conclusion, the interview form signed by the applicant contains in typewriting the words:

AT THIS POINT THE PERSON IS TO BE ADVISED THAT HE OR SHE HAS TWO WORKING DAYS AFTER ARREST TO EITHER LODGE AN APPLICATION OR MAKE ARRANGEMENTS FOR A VOLUNTARY DEPARTURE BEFORE A DEPORTATION ORDER IS SOUGHT. IF MORE TIME IS NEEDED THE PERSON MAY MAKE A WRITTEN REQUEST FOR A FURTHER FIVE WORKING DAYS.

The applicant agrees that this was drawn to his attention and says that he told the interviewer that he would leave Australia voluntarily, purchasing his own airline ticket. It was not entirely clear from his evidence whether he would pay for it himself or obtain a loan or support from some of his friends, but vis a vis the department, it was clear that he would be responsible for the supply of his own airline ticket. He was taken into custody immediately and on the following day telephoned a migration agent who advised him to apply for what is known in the regulations as a December 1989 temporary entry

permit. On Friday 30 October an officer of the department's eastern	region office faxed to the applicant at the Villawood
detention centre a letter which the applicant says he received
at about 5 pm. This letter notified the applicant that the
application for a temporary entry permit had been refused. He

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was informed that he had been illegally in Australia since his arrival and that he was categorised as an illegal entrant. The letter contains the following two paragraphs:

If when you read this letter and the papers with it, you think you have grounds on which to make another entry permit application you must apply immediately. You should do so in person, by attending at this office.

If you do not apply for another entry permit immediately you are expected to depart Australia forthwith. You must provide details of your departure arrangements to the Compliance Section of the Rockdale office forthwith.

Quite obviously, a person in the Villawood detention centre could not possibly attend in person immediately at the eastern region office of the department which is in the Rocks area of Sydney, many miles distant. He could also not have attended immediately because it was a Friday afternoon and the office would have been closed. However, the applicant's case is not that he wanted to make another application for an entry permit but that he wanted to depart Australia voluntarily. According to the letter, he was therefore obliged to notify the Rockdale office of the department of his departure arrangements, as the letter describes it, "forthwith".

easily possible, to notify the compliance section of the	Once again, it presumably would not have been possible, or not	Rockdale office after 5 pm on Friday afternoon, but no doubt
there would have been people in the Villawood Centre who could have assisted him to provide a notification soon thereafter. Certainly by the Monday morning, there is no evidence of any impediment_ in the applicant's capacity to notify the compliance section of the Rockdale office of his proposed
departure arrangements or of any difficulties he was encountering in making those arrangements.
As the record of interview indicates, although two days was the standard time given for making a decision as to what was going to be done, there was an opportunity to make an application for an extension of five days. In all, that would have meant seven days, and as the form says working days in each case, such an application would have entitled the applicant to delay his arrangements, or extend the time for the making of the arrangements, up to and including the end of the following Tuesday week after the Friday on which he had received the letter.
In fact the evidence establishes that the applicant did not notify anyone at Villawood or the Rockdale office of his intentions at all for some considerable time. What he did was to instruct his migration agent to contact his solicitor. This was done apparently on 5 November, some four working days
his application for a temporary entry permit. In the after the applicant had received the respondent's decision on
meantime, a delegate of the respondent made a deportation order on 3 November 1992.
The delegate has provided reasons for the decision to make the deportation order. She first observed that she had made the order "in the absence of any arrangements by Mr Rokotakilai to effect a voluntary departure." She says that after studying the relevant papers she decided "that there were no outstanding matters before the department, and in the absence of any departure arrangements or request to depart voluntarily it was appropriate to consider the question of deportation."
The delegate considered and found that the applicant was an illegal entrant; that he had been provided with the notice of intention to refer to the Minister his powers to order deportation; that he was not a refugee or an applicant for asylum; that he did not have any current application before the department for the issue of an entry permit or a review of any previous decision; that there were no court orders affecting the exercise of the minister's power to deport; and that he had been detained on 14 October with the maximum period of time available to him under the potential seven working day period permissible expiring on 23 October 1992.
The applicant agreed in cross-examination today that he had in fact been supplied with two notices or documents when he was
interviewed. One is a document headed:

ILLEGAL ENTRANTS AND/OR DEPORTEES

EXPLANATORY NOTES FOLLOWING LOCATION OR ARREST

VERY IMPORTANT NOTICE

This is a ten page document attached to which is a form
headed:
REQUEST FOR AN EXTENSION OF TIME TO LODGE AN APPLICATION FOR

AN ENTRY PERMIT/RECONSIDERATION/ REVIEW.

The notice makes clear that the Minister or his delegate was intending to decide whether the applicant was to be deported or required to leave Australia. Question No. 5 was:

Can I do any th ing t o avoid depor ta t ion?

Its first provision was:

5.1: Deportation can be avoided by

(A) Making an acceptable o f fer t o l e a v e

A u s t r a l i a very quickly.

A number of details are given but one of them was:

You may make an o f f e r w i t h i n two w r k i n g days o f the

day on which you were ar res t ed t o l e a v e A u s t r a l i a

very q u i c k l y i f there i s no i r r e v o c a b l e depor ta t ion

order aga ins t you.

A mechanism for making that offer was then set out.

The second notice give to him was headed:

NOTICE OF INTENTION TO EXERCISE POWERS UNDER THE MIGRATION ACT

(1958).

There was a second heading:

PERSON ARRESTED UNDER THE MIGRATION ACT.

Although a form with blanks, this was addressed to the applicant personally. He was told that he was a suspected illegal entrant because he did not have a valid entry permit for Australia. He was advised that after two or seven working days, as the case may be, from 14 October, the Minister or his delegate would be considering the exercise of a power to deport him or require him to leave. He was invited to place before the Minister any circumstances which he wished to have taken into account in this regard.

At the end of the form, there is a paragraph:

I f you do not r e p l y by the end of the second working day a f t e r you were first arres ted under the

Migration Act 1958 i t w i l l b e assumed tha t none o f

the above circumstances app ly t o you.

One of the circumstances stated was:

I f there are any fac tors you wish t o b e considered

be fore your	case	i s r e f e r r e d	t o the Minister	o r a
Delegate.

This case turns on whether the making of the deportation order on 3 November, the third working day after the applicant received the letter or refusal, was or amounted to a breach of natural justice in the modern sense of denying the applicant procedural fairness. The submission in substance is that the applicant should have been given additional notice of the

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imminence of the deportation order so that he could avoid it by volunteering to leave Australia. The applicant says that the word "forthwith" in the letter of 30 October means something along the lines of "as Soon as possible taking into account the circumstances and the nature of the act required".

The applicantrs case is that after his,interview on 15 October \

when the time limits were brought tC his attention and the forms were supplied to him, the qustion of his voluntary departure was never raised again. Itmis said to be a breach of natural justice to disregard his qfer to the interviewer on 15 October to leave voluntarily and to substitute a deportation order for that offer.

This is not a very meritorious case >n either side of the record. The Court has given it an extaordinarily fast track to a hearing because it was told \hat the case raised

significant issues of principle. I t&ht that rather than I

entertain an application for the aplicant's release from

custodial detention at Villawood, it wod be preferable, both I	for him and the respondent, to jve the hearing on F
immediately. For that reason it was kted today along with another case and given very signific4 priority over many other cases in the list.
AS it turns out, the dispute is realllabout nothing. The applicant volunteers to leave and says / would leave more or less immediately. The respondent Mts to deport him. i

Instead of him departing Australia, the taxpayer is paying a very considerable sum to keep him in Villawood and to conduct this court case. There are very many more important things that the Court could be doing than presiding over and arbitrating such a meaningless dispute and there are many more important and useful things that taxpayers' funds could be expended on than indulging this type of futility.

NO doubt there is some importance to the administration of the

immigration system that people illegally in the country should be held to time frames fixed for them to act and react. Whether allowed times for people to take action are reasonable or fair depend upon a whole series of circumstances. Although the applicant is entitled to very little sympathy for his plight because he brought it upon himself, it must always be remembered that a person detained in and facing deportation from a country in which he has lived for seven years, albeit illegally, would be likely to be feeling a considerable degree of apprehension, uncertainty and insecurity. It is easy to

people from other countries should do when they receive an	sit back in the comfort of offices or courts and judge what
official intimidating letter from a government official. Such people may not quite be used to the aggressive bureaucracy which sometimes appears even in democratic countries. Some people need to think about letters especially when there are mandatory-orders in them. They need just a little time to read and understand them, take a deep breath, try to work out what they should do for the best, and perhaps seek access to someone who might be able to give them a sympathetic ear. The difficulty is not less because the detention and the letter are the products of the authority who has pul: them in this position, even though the authority is acting entirely lawfully and the persons concerned are acting unlawfully.
There is a price to pay for the freedom of free countries and one part of it is some humanity and compassion in the treatment of people whoever they are and whatever they have done. A lot of effort is expended in our society to try to ensure that people who have committed serious offences against the society are treated humanely in the place of their detention. Some understanding must be had for the state of mind of people who are alone in a place of detention. Accordingly, some people in the position of the applicant might have found two or three days relatively short for a consideration of what they might do. I should have thought that in some cases perhaps one last notification, even by an officer of the place of detention, that time is running out,
would not be inappropriate.
However, the applicant is in a somewhat different position to such a person. He has or had at the time been in Australia for almost seven years. He was never legally in this country as he well knew. It is perfectly clear to me, not only from what he said in the witness box but from the circumstances of which he has given evidence, that he was, in recent years at least, well attached to and supported by members of the Fijian community in Australia. That community has had no little experience in dealing with the respondent's department in relation to the problems which arise for people who are illegally in Australia. This particular applicant had risen to a position of some executive status in his particular community such that he was responsible for, as he says, important financial and commercial interests of the community. He would have known something about these problems.
This is not a case of a person who for family, domestic or other reasons was in a state of acute emotional stress before or by reason of the detention. Nor does it involve someone unfamiliar with the English language. By the time the applicant had received the letter of refusal, he had actually been in detention for more than two weeks. No doubt in that time he had been visited by members of his community or could have been visited by them if he had requested or sought to encourage such visits. He must have known that his application for a temporary entry permit had at best only
modest chances of success. He knew from the date of the interview that, if the application was refused, there was
going to be a very short period indeed during which he was to be entitled to make a voluntary departure. He would have had the opportunity to have those arrangements well in hand, at least to the extent, for example, of knowing what flights were available-on which days, and whether the airlines had a vacancy which he could take up. In fact a ticket could even have been purchased or at least a seat booked so that it was available in the event that the application to stay was unsuccessful and he sought to leave Australia. If he himself did not know, the migration agent whom he activated to lodge his claim for a temporary entry permit would have been able to advise him. No doubt the very experienced pastor of the Fijian Assembly of God at Rockdale would have been able to add his experience and advice into this picture as well. The applicant has given evidence of no such preparations.
To assess whether procedural fairness has been extended to the applicant, the word "forthwith" in the letter of 30 October as governing the provision of the details of departure arrangements to the department must be looked at in the light of the particular circumstances of the case. I can see that there may be circumstances in some cases where three days might be regarded as too short a period, even though two days was the basic time given. I can see that there would be circumstances and cases where it would be appropriate for a departmental officer to notify certain detainees that time was
running out, or even advise persons to make an application for the extra five days grace that was offered in order to enable
them to get their affairs in proper order and make the requisite decisions.
This is not such a case. In my opinion, the circumstances of this case-are such that the department was within its rights to consider a deportation order on 3 November, which was the Wednesday after the delivery of the letter on the Friday afternoon. The applicant showed no signs to me in the witness box, and his affidavit reveals no sign, that he really had any serious intention of responding to the direction that he provide details of his departure forthwith. In fact, having been given more than two weeks to consider his position while the application for an entry permit was under consideration, he did nothing to comply with the requirement to leave very quickly indeed that was inevitably going to fall upon him if the application was refused.
I do not think the deportation decision was a breach of natural justice. Furthermore, to the extent to which it is appropriate to use a discretion in this matter, I can see no grounds for exercising the discretion in favour of the applicant. The application will be dismissed.
RECORDED NOT TRANSCRIBED
HIS HONOUR:  The applicant will pay the respondent's costs.

I I certify that the and the pfk"

precedrncr n-04s ?re a true copy of the	I
t
Dated: 3 . 2 . q 3	2