Sezdirmezoglu, Ligor v Acting Minister for Immigration & Ethnic Affairs

[1983] FCA 327

Re: LIGOR SEZDIRMEZOGLU and PENELOPE DROKOS
And: THE ACTING MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
VG No. 153 of 1983
Deportation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
EX TEMPORE JUDGMENT
Smithers J.

CATCHWORDS

Whether the Acting Minister could not deport the first named applicant because of his family relationship with the second named applicant - whether the Acting Minister was bound by the International Covenant for Civil and Political Rights - whether the covenant is part of the law of Australia - the effect of the covenant on a decision made pursuant to the laws of Australia.

Migration Act 1958 ss.16 and 18.

Human Rights Commission Act 1981

HEARING

MELBOURNE

#DATE 21:10:1983

JUDGE1

When this matter was heard in September I made an order that the third ground of the order to review be dealt with separately from the other grounds. I have handed down a judgment in relation to the other grounds and it is the third ground which is now before the Court. The third ground was in these terms:

"That insofar as the deportation of the first-named applicant would be likely to seriously impair the exercise by the second named applicant, an Australian citizen, of her rights including her rights to maintenance for the child en ventre sa mere of the applicants, it is not within the power of the Commonwealth officer so to order, that is to say to make the deportation order."

That ground was particularised by Mr. Little this morning in the following terms, namely, that in the exercise of the discretion of the Acting Minister, the Acting Minister could not deport the applicant because of his family relationship with Mrs. Drokos, that relationship being a genuine de facto relationship, he being the father of her child about to be born and also being accepted as in loco parentis by Mrs. Drokos' daughter, that is, the daughter of Mrs. Drokos by her previous marriage.

The relevant facts are, shortly, that the applicant and Mrs. Drokos arrived in Australia from Greece and took up again a de facto relationship which according to them had commenced in Greece at least some 12 months before they arrived in Australia. Mrs. Drokos arrived in Australia shortly before the applicant. Mrs. Drokos is about to be divorced in Greece and intends to marry the applicant. As previously mentioned there is a daughter from Drokos' previous marriage who has lived with Drokos and the applicant at all times when they have been living together and who regards the applicant in the position of her parent.

Mrs. Drokos is with child to the applicant and expects the baby to be born in about two months time. She is an Australian citizen. The applicant is Turkish. There is, therefore, so it is said, a family situation in existence consisting of the applicant, Mrs. Drokos, and her daughter, which has been further enhanced by the existence of the pregnancy in relation to the child of the applicant and Drokos.

In the first instance Mr. Little contended that Australia having acceded to the International Covenant for Civil and Political Rights (the covenant) the provisions of the covenant are binding on the Acting Minister for Immigration and Ethnic Affairs in this case in the sense that he is restrained from making an order for deportation which would invade, or fail to protect, the family situation.

The Human Rights Commission Act 1981 indicates that it is desirable that the laws of the Commonwealth and the conduct of persons administering those laws should conform with the provisions of the covenant and certain other international declarations, but of course such a recital stops short of enacting that the provisions of the covenant are part of the law of Australia, and in fact those provisions are not part of the law of Australia.

The Migration Act 1958 is law in Australia on the subject of immigration. In that Act Parliament lays down, inter alia, the conditions according to which persons may be admitted to Australia and may be deported therefrom. It is to those provisions that regard must be had.

So far as the deportation of a prohibited immigrant is concerned, the Minister has a discretion, the width of which has been described in various decisions such as The Minister for Immigration & Ethnic Affairs v. Tagle (unreported decision of Sweeney, Woodward and Fitzgerald JJ., dated 28 September 1983; VG No. 53 of 1983) and Akpan v. The Minister for Immigration & Ethnic Affairs (unreported decision of Sheppard J. dated 7 April 1983). That discretion itself must be exercised according to law one provision of which is that the Minister must consider all circumstances relevant to the position of the person with whose desire to remain in Australia he is concerned. I do not say that he must apply the principles laid down in the covenant. However, the declaration of Parliament in the Human Rights Commission Act 1981 that it is desirable that the conduct of persons administering the laws of Australia should conform with the provisions of the covenant may supply a ground for contending that the Minister should at least take into account the principles expressed therein.

So far as I can see in this case, save that the order of the Acting Minister as previously made and at present under reconsideration may cause a separation, it appears that he has in an indirect way taken into consideration the provisions of the covenant. It is apparent that the Acting Minister is apprised of and considers it his duty to have regard to the de facto relationship between these two parties and that he recognises that it is his duty to take that into account with all other matters which bear upon the desirability or otherwise from the point of view of Australia that the applicant be deported or that some privileges arising out of the de facto relationship be extended to him. The duty, however, is no more than a duty to take all relevant considerations concerning the prohibited immigrant in relation to the interests of Australia into account.

The situation for Mrs. Drokos, of course, is a very difficult one indeed from all points of view and it is noted that she is an Australian citizen. But it is going too far to suggest that as a separation between these parties might possibly arise if the order as previously made were carried into effect the possibility of that separation makes it unlawful for the Minister to make the order. The existence of the family and respect for what I call the rights thereof do not take effect to prohibit the exercise of all lawful acts which may work in a hostile manner towards the family. The family is still subject to law and not the reverse. This is made clear in the covenant itself: see article 9(1), article 10(1), article 13 and article 17(1). If one reads, for example, article 13 it states:

"An alien lawfully in the territory of a state party to the present covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority."

The principle that the law of the land as made by the law-making bodies of Australia shall operate notwithstanding any general provisions which appear in the covenant seems to be supported by a number of decisions - indeed those decisions which Mr. Little himself submitted - and I refer in particular to R v. Home Secretary ex parte Bhajar Singh (1976) 1 Q.B. 198; R v. Home Secretary ex parte Phan Sopkar (1976) 1 Q.B. 606; R v. The Chief Immigration Officer ex parte Salamat Bibi (1976) 1 W.L.R. 979. Reference may also be made to In re Simsek (1981-1982) 40 ALR 61.

To my mind it is perfectly clear that nothing in the Human Rights Commission Act 1981 or the covenant, so far as it is called in aid in that Act, is effective to modify in any way the powers of the Minister under ss.16 and 18 of the Migration Act. The only way in which the Act is relevant is that it makes clear that it is the desire of Parliament that the conduct of the Minister in performing his duties shall conform with the provisions of the covenant, and the fact that the covenant refers to the entitlement of the family to be protected, but it is a right for the family to be protected in the context of the law of the country concerned and, of course, subject to those qualifications which are to be found in the covenant itself.

I have said that in this case it would appear that the Acting Minister is quite well aware of the duty to consider all relevant matters and no doubt, will in his reconsideration, take into account the desirability of the protection of this family unit so far as that protection is compatible with the other considerations which it is necessary that the Acting Minister should take into account which, of course, relate to the interests of Australia, the interest of the maintenance of its laws and various other considerations which appear from the reasons of the Acting Minister.

The substance of the argument put by Mr. Little would really mean that the provisions of s.51(27) of the Constitution dealing with immigration, would have to be read subject to a qualification that the Parliament was unable to authorise the Minister to take action in certain situations where his action might be incompatible with the full protection of the family. I think it is impossible so to argue and that matter is made clear in those authorities to which Dr. Jessup has referred eg: Osborne v. The Commonwealth & Anor (1910-1911) 12 CLR 321; especially at pp.334, 343, 346 and 358, and the recent case of The Commonwealth v. Tasmania (1983) 46 ALR, in the judgments of Mason J. at 713 and 714; Murphy J. at 736; Deane J. at 813 and 814. Of course, it is quite clear that once ss.16 and 18 are shown to be laws with respect to immigration pursuant to s.51(27) of the Constitution they remain laws relating to immigration although their operation may have an impact on an ancillary matter.

On the general question of the influence of a family situation and the significance of a family situation on the administration of the laws of immigration it is useful to refer to Ah Yin v. Christie (1912) 4 CLR 1428 where a boy of 15, convicted of a charge of being a prohibited immigrant, sought entry to this country on the basis that he was domiciled in this country his father being already domiciled and resident in this country. It was said by Griffiths C.J. at p.1431:

"It is a question of a right of a stranger to claim admission to a foreign country. That is a matter depending upon political, not upon civil status. See per Lord Westbury in Udny v. Udny L.R. 1 H.L. Sc., 441, at p.457. It is settled law, as pointed out by this Court in the case of Robtelmes v. Brenan 4 C.L.R., 395, quoting the decision of the Judicial Committee in Attorney-General for Canada v. Cain and Gilhula (1906) A.C., 542, that one of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, and to annex what conditions it pleases to the permission to enter it, and to expel or deport him from the State at pleasure. The Commonwealth has under the Constitution power to exclude any person, whether an alien or not."

So far as the application depends upon ground 3 of the order to review, I give no relief.

I will reserve the costs.