Sezdirmezoglu v Acting Minister for Immigration and Ethic Affairs

[1983] FCA 295

Re: LIGOR SEZDIRMEZOGLU AND PENELOPE DROKOS
And: THE ACTING MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1983) 74 FLR 348
VG No. 153 of 1983
Administrative Law - Constitutional Law - Immigration - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Smithers J.(1)

CATCHWORDS

Administrative Law - Judicial review - deportation of a prohibited immigrant - reasons pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 - evidentiary status of those reasons - whether the Minister is obliged to take all relevant considerations into account before deporting a prohibited immigrant - misleading information provided to the Minister - whether such misleading information can vitiate the Minister's decision - whether principles of natural justice are extended by the Administrative Decisions (Judicial Review) Act 1977 - application of natural justice principles to s.18 of the Migration Act 1958.

Administrative Decisions (Judicial Review) Act 1977 ss.5 and 13.

Migration Act 1958 ss.6A, 7, 16 and 38.

Administrative Law - Judicial review - Deportation of prohibited immigrant - Statement of reasons - Evidentiary status - Natural justice - Relevant considerations - Omission of relevant information - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 13 - Migration Act 1958 (Cth), ss 6A, 7, 16, 18, 38.

Administrative Law - Deportation of prohibited immigrant - Effect of International Covenant on decision made pursuant to laws of Australia - Human Rights Commission Act 1981 (Cth) - Migration Act 1958 (Cth), ss 16, 18.

Constitutional Law - Immigration - Whether any qualification on laws that action be compatible with protection of family - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxvii).

Immigration - Deportation of prohibited immigrant - Effect of International Covenant on decision made pursuant to laws of Australia - Human Rights Commission Act 1981 (Cth) - Migration Act 1958 (Cth), ss 16, 18.

Evidence - Evidentiary status of statement of reasons - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 13.

HEADNOTE

The applicant entered Australia from Greece on a temporary entry permit and was subsequently granted a further temporary permit. The Department of Immigration and Ethnic Affairs received information which showed that the applicant had overseas convictions which he had not disclosed on his visa application. When interviewed on this matter he stated, inter alia, that he did not wish to be deported because he had met a woman, the second applicant, some two and a half months previously who was now expecting his child. The second applicant, an Australian citizen, was also interviewed and she stated that the couple had met in Greece and had cohabited there for twelve months. The applicant subsequently acknowledged this to be correct. The Department prepared a memorandum to the Acting Minister recommending deportation of the applicant, making no reference to his affirmation of the length of the relationship as stated by the second applicant. The Acting Minister signed a deportation order. The applicant requested a statement of reasons pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Held: (1) The statement of reasons provided by the Acting Minister, unless effectively challenged, was evidence of the reasons for decision.

Givandan & Co. Ltd v. Minister for Housing and Local Government (1967) 1 WLR 250, followed.

(2) Section 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) did not extend the rules of natural justice beyond their common law application.

Capello v. Minister for Immigration and Ethnic Affairs (1980) 49 FLR 40; Salemi v. MacKellar (No. 2) (1977) 137 CLR 396; Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 57 FLR 133, followed.

(3) In certain exceptional circumstances the Minister may be bound to observe the rules of natural justice when exercising his power under s. 18 of the Migration Act 1958 (Cth). This, however, was not such an exceptional case.

R. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461; Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 57 FLR 133, considered.

(4) The duty of the Minister in relation to the deportation of a prohibited immigrant was no more than to take into account all relevant considerations concerning the prohibited immigrant in relation to the interests of Australia.

Salemi v. MacKellar (No. 2) (1977) 137 CLR 396.

(5) The law of the land as made by the law-making bodies of Australia operated notwithstanding any general provisions which appeared in the International Covenant for Civil and Political Rights.

(6) Nothing in the Human Rights Commission Act 1981 (Cth) or the International Covenant for Civil and Political Rights, so far as it was called in aid in that Act, was effective to modify in any way the powers of the Minister under ss 16 and 18 of the Migration Act 1958 (Cth).

(7) It was impossible to argue that the provisions of s. 51 (xxvii) of the Constitution (63 & 64 Vict. c. 12) dealing with immigration must be read subject to the qualification that the Parliament was unable to authorise the Minister to take action where his action might be incompatible with the full protection of the family.

(8) However, the Acting Minister was seriously hampered in the performance of his function because important relevant facts as to the duration of the relationship between the applicants were not disclosed to him by those reporting to him.

Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 57 FLR 133 considered,

(9) To enable consideration of the applicant's position against the true background the matter should be remitted for further reconsideration.

R. v. The Home Secretary; Ex parte Phansopkar (1976) QB 606; R. v. The Home Secretary; Ex parte Bhajan Singh (1976) QB 198; R. v. The Chief Immigration Officer, Heathrow Airport; Ex parte Salamat Bibi (1976) 1 WLR 979, referred to.

HEARING

Melbourne, 1983, September 19, 20; October 19. #DATE 19:10:1983

APPLICATION.

Application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review of the decision of the Acting Minister to deport the first applicant.

J. Little, for the applicants.

C. N. Jessup, for the respondent.

Cur. adv. vult.

Solicitor for the applicant: John Little.

Solicitor for the respondent: T. A. Sherman, Acting Commonwealth Crown Solicitor.

J.F.

ORDER

1. The decision of the Acting Minister for Immigration & Ethnic Affairs be remitted to the Minister for Immigration & Ethnic Affairs for reconsideration.

2. The operation of the order made on such decision be stayed pending such reconsideration so far as it would justify or require the actual removal of the applicant from Australia.

3. Proceedings under the order for deportation of the applicant be stayed until further order.

4. The respondent pay the applicants' costs of and incidental to this application.

Orders accordingly.

JUDGE1

Mr. Ligor Sezdirmezoglu (the applicant) arrived alone in Australia from Greece on 27 January 1983 as a visitor. The visa which was issued to, and signed by, the applicant contained, inter alia, the following provisions:-

"Have you or has any member of your family been included in this application (the answer given was) "No" been convicted of a criminal offence in any country? (the answer given was) No.

Notes: If you are unable to complete the following declaration in respect of any matter, you should cross out the item in question and sign the declaration as amended, you should then submit with the application a statement outlining the reasons why you were unable to declare in respect of the deleted item.

I and my accompanying dependant family will not seek authority to settle in Australia and will leave at or before the end of the authorised visit period. . . .

I and my dependant family members will not undertake employment or any formal studies while in Australia. . . .

I further declare that all questions have been answered and the particulars provided by them are true and correct to the best of my knowledge and ability."

On his arrival the applicant was granted a temporary entry permit valid for a period of three months. On 7 March 1983 he requested and was granted a further temporary entry permit valid until 27 July 1983. Both permits were endorsed with the condition "employment prohibited".

On 15 April 1983 the Melbourne office of the Department of Immigration & Ethnic Affairs (the Department) was advised by the Adelaide office of the Department that the latter had information which gave it to suspect that the applicant had convictions overseas. A telex was sent from the Adelaide office to the Melbourne office which stated as follows:

"SEZDIRMEZOGLU/LIGOR 18/4/49 TURKEY

INTERPOL LONDON ADVISE PERSON SAME NAME AND DOB HEIGHT 5' 11" AND HAS MARK LEFT EYE HAS FOLLOWING RECORD. POSITIVE I.D. NOT POSSIBLE WITHOUT FINGER PRINTS.

3/10/75 WEST LONDON M.C. ASSAULT OCCASIONING ACTUAL BODILY HARM 4M. IMP.

26/5/78 SNARESBROOK CROWN COURT - BURGLARY - 2 YRS IMP.

18/5/79 TOTTENHAM M.C. - UTTER FORGED DOCUMENT - 1 M. IMP

5/2/80 HIGHGATE M.C. (1) FRAUD - 3M. SUSP 2 YRS.

5/2/80 HIGHGATE M.C. (2) THEFT - ADJOURNED SINE DIE.

5/2/80 HIGHGATE M.C. (3) HANDLING STOLEN GOODS 3M. SUSP 2 YRS.

INTERPOL TELEX STATES THESE DETAILS NOT BE USED IN JUDICIAL PROCEEDINGS AT THIS STAGE. THIS IS DUE TO LACK OF CONFIRMATION BY FINGERPRINTS.

SUGGEST YOU ATTEMPT TO LOCATE AND APPREHEND.

TRYING TO OBTAIN MORE ACCURATE ADDRESS.

INTERPOL REQUEST ADVICE RE WHEREABOUTS AND RESULT OF OUR ENQUIRIES THEIR REF. 1P/S/12/83/278."

An officer in the enforcement section, entry regulation branch of the Department arranged for the applicant to see him at the office of the Department on 29 June 1983

On 29 June 1983 the applicant was interviewed. At that interview he initially stated:

(a) that he had not worked in Australia;

(b) that he had no previous convictions in Australia or elsewhere;

(c) that he had stayed only with his sister in Melbourne;

(d) that he did not wish to be deported because he had a girlfriend, Penny Drokos (Drokos) who was 25 years old and lived at 78 Mills Street, Middle Park and whom he had met 2 1/2 months before. Although he generally stayed in Springvale with his sister he sometimes stayed with Drokos who was now pregnant and expecting a child at Christmas. He was the father of that child.

When the applicant was confronted with information about his prior convictions he stated that he regretted he had not previously mentioned his criminal background but that he now wanted to "go straight" and would like to stay another three months.

The applicant's temporary entry permit was then cancelled and he was taken into custody under s.38 of the Migration Act 1958 (the Act) as a prohibited immigrant pursuant to s.7(3) of that Act by virtue of the cancellation of the temporary entry permit. He already was at the time of entering Australia a prohibited immigrant by virtue of ss.16(1)(b)(i) and 16(1)(c)(ii) of the Act, because of his previous convictions which he failed to disclose.

Soon after the interview of 29 June 1983 the applicant told the officer by whom he was interviewed (the officer) that he had indeed known Drokos longer than 2 1/2 months and had in fact met her in Greece where there was a defacto relationship between them. He said that what Drokos had said about their relationship and its duration was correct. He explained his previous statement as having been made on the assumption that in some way a statement of the true facts might operate against Drokos. He also told the officer that he had in fact been working in Australia as a machine operator and cleaner.

On 29 June 1983 Drokos attended the office of the Department and was interviewed by another officer in the enforcement section. The information she gave was as follows:-

(a) that she first met the applicant in 1981 while in Greece;

(b) that she returned to Adelaide shortly before the applicant arrived in Australia;

(c) that she moved from Adelaide to Melbourne one day after the applicant's arrival in Australia;

(d) that she and the applicant co-habitated in Greece for twelve months prior to her departing for Australia;

(e) that she and the applicant had co-habitated since early March 1983 in Australia;

(f) that she was over four months pregnant and the child was due on 12 December 1983;

(g) that she is presently married to a Greek citizen.

The marriage took place in June 1977 and she and her husband were separated in early 1979. There is a 4 1/2 year old daughter from that marriage;

(h) that she applied for a divorce from her present husband in March 1983; and

(i) that she was aware of the applicant's criminal record.

On 19 July 1983 the officer sent a telex to the Canberra Office of the Department. In this telex the officer states that the applicant acknowledged that Drokos' statement as to the duration of the relationship between the two was correct.

In evidence the officer at first said that he had no reason to disbelieve the applicant when he said the details given by Drokos as to the duration and status of their relationship were correct. He subsequently said that he actually believed the applicant when he made those statements. In spite of this his telex stated that "doubts exist as to the couple's meeting and the length of their relationship".

The officer also indicated that his view was that if the Minister thought that the applicant did not meet Drokos until he arrived in Australia it was likely that different considerations would apply from those which would apply if the facts were that they had had a relationship in Greece and that it was a genuine relationship.

On 11 August 1983 a memorandum relating to the applicant was forwarded to the Acting Minister. This memorandum was based on the telex sent by the officer and states, inter alia, as follows:-

"PERSONAL CIRCUMSTANCES

INTERVIEW WITH MR. SEZDIRMEZOGLU

7. During the course of the interview at which he was made aware of policy relating to prohibited migrants and given the opportunity of making written submissions, Mr. Sezdirmezoglu provided the following personal particulars:-

. Claimed to be divorced and had no evidence to support his claim; divorced wife lives in UK and there appear to be no children from the marriage;

. Had one sister in Australia and parents in Greece;

. Had been working as an interior decorator for 10 years overseas; since his arrival in Australia had worked as a machine operator and cleaner;

. Had assets consisting of $600 and the unused portion of his return ticket;

. Claimed he had a de facto relationship with an Australian citizen, Ms Penelope Drokos nee Kalogeros. Mr. Sezdirmezoglu stated that he had known Ms Drokos for approximately two and a half months and that although he lived with his sister, he would occasionally stay with Ms Drokos who was now pregnant and expecting his child by approximately December 1983.

8. After the interview Mr. Sezdirmezoglu signed the interview report acknowledging that facts contained therein were correct.

INTERVIEW WITH MS P. DROKOS

9. Ms Drokos was interviewed on 29.6.1983 and gave the details outlined below in respect of her relationship with Mr. Sezdirmezoglu:-

. She met Mr. Sezdirmezoglu in 1981 whilst she was in Greece and cohabited with him for twelve months;

. she returned to Australia on 22.1.1983 (five days before Mr. Sezdirmezoglu's arrival) and had cohabited with Mr. Sezdirmezoglu since March 1983;

. she was expecting Mr. Sezdirmezoglu's child about 12 December 1983;

. Had applied for a divorce in March 1983.

POSSIBILITIES OF REGULARISATION OF STATUS

10. Mr. Sezdirmezoglu does not fulfil the conditions of section 6A of the Migration Act for the grant of permanent residence in Australia. He could apply for a further temporary entry permit (which would need to be specially endorsed in accordance with section 16 of the Migration Act in view of his convictions overseas) but he would not meet the character requirements relating to the grant of such a permit and having regard to the applicable policy such an application is unlikely to be approved.

REPRESENTATIONS

11. Representations have been received from Mr. Clyde Holding M.P. Minister for Aboriginal Affairs, (attached), who requests that you give consideration to Mr. Sezdirmezoglu being allowed to remain in Australia with his future wife. Mr. Holding draws attention to the fact that Mr. Sezdirmezoglu and Ms Drokos have lived together for two years, she is 5 months pregnant and intends to marry Mr. Sezdirmezoglu as soon as possible after her divorce in September.

12. Representations have also been received from Ms. Drokos (attached at Annex 'B'). She requests that Mr. Sezdirmezoglu be released from custody and that they be allowed to marry soon after she obtains her divorce in September. Ms. Drokos claims, in her representations that she met Mr. Sezdirmezoglu two years ago in Greece and lived with him for a period of 18 months. She also instituted divorce proceedings from her husband in Greece immediately after meeting Mr. Sezdirmezoglu.

NOTE: At interview with Departmental Officers on 29.6.83 Ms Drokos stated that her period of cohabitation with Mr. Sezdirmezoglu was 12 months and that divorce proceedings had been instituted in March 1983.

13. Representations have also been received from Strugnell, Deakin, Duncan, Barristers and Solicitors. In their representations the solicitors outline the personal circumstances of Mr. Sezdirmezoglu and Ms Drokos and the fact that the proposed deportation of Mr Sezdirmezoglu will cause problems to Ms Drokos, her daughter and the child she is expecting. Ms Drokos will also be deprived of her relationship with Mr. Sezdirmezoglu and will not be able to marry him. Finally the solicitors request that you exercise your discretion in favour of Mr. Sezdirmezoglu by enabling him to remain in Australia.

SUMMARY OF POLICY ON DEPORTATION OF PROHIBITED IMMIGRANTS

14. It is in the interest of the Australian community to ensure that prospective immigrants do not circumvent normal immigration procedures by entering or remaining illegally in Australia to the detriment of those who abide by them. The presence of prohibited immigrants in Australia is a threat to the orderly Government control of immigration programs and to the availability of jobs for legal residents. Illegal immigrants who do not depart voluntarily must necessarily expect to face the prospect of prosecution and enforced departure when located.

ASSESSMENT

15. Mr. Sezdirmezoglu is a prohibited immigrant who has also probably committed an offence in engaging in employment without written permission (under section 31B (2) of the Migration Act). There is no outstanding application from him to regularise his status and in any event such an application is unlikely to meet normal character requirements.

16. Whether or not Mr. Sezdirmezoglu's relationship with Ms. Drokos is genuine the parties have given contrasting versions in relation to the length of such relationship and it is unclear if it is of a bona fide defacto nature of any real duration. Ms. Drokos is not yet free to marry and there is no evidence that Mr. Sezdirmezoglu is divorced. Be that as it may there is little doubt that both Mr. Sezdirmezoglu and Ms. Drokos had deceived the Department by withholding certain information, with the express purpose of securing Mr. Sezdirmezoglu's entry, and ultimately his stay in Australia.

17. Although it remains lawful to regularize Mr. Sezdirmezoglu's status (by grant of an endorsed temporary entry permit), bearing in mind the policy as it stands, and taking into account the circumstances as related above, you may decide to order his deportation.

RECOMMENDATION

18. If you agree with the above assessment it is recommended that you sign the attached order for the deportation of Mr. Sezdirmezoglu. A letter in response to Mr. Holding's is enclosed for your signature if the terms are satisfactory. Representations from the solicitors and Ms. Drokos may be answered departmentally."

As one can see the memorandum stated that the applicant had said he had known Drokos for approximately 2 1/2 months and that although he had lived with his sister he would occasionally stay with Drokos who was now pregnant and expecting his child in December 1983. It made no reference to the fact that he had later affirmed there was a relationship between himself and Drokos in Greece as stated by her, nor to the fact that the investigating officer believed that the latter statement represented the truth. I note also that a number of comments in the memorandum to the Minister reflect unfavourably and with emphasis hardly justified, notwithstanding the circumstances, on the credibility of Drokos. I note the inclusion of the statement of the Magistrate, which admittedly on the part of the Magistrate, was not for him to make, but which could be very damaging. I note also para. 12 and para. 16 of the memorandum.

On 15 August 1983 the Acting Minister for Immigration & Ethnic Affairs signed an order to deport the applicant.

A request was made by the applicant for a statement of reasons for the decision pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act). The statement of reasons dated 15 September 1983 was, inter alia, as follows:

"12 As to whether the relationship between the applicant and Ms Drokos is of a bona fide de facto nature of any real duration, the Acting Minister was unable to make a positive finding because:

(a) on 29 June 1983 the applicant claimed that he had met Ms Drokos approximately two and one half months before, while Ms Drokos claimed that she had met the applicant in 1981 and had cohabited with him for 12 months before coming to Australia;

(b) on 29 June 1983 the applicant claimed that he stayed mainly with his sister, and sometimes with Ms Drokos, while Ms Drokos claimed that they had cohabited since March 1983; and

(c) On 29 June 1983 Ms Drokos claimed that she had applied for a divorce in March 1983 while in her letter of 19 July 1983 she claimed that divorce proceedings were instituted in Greece immediately after she met the applicant.

B. THE EVIDENCE OR OTHER MATERIAL UPON WHICH THE FINDINGS ON MATERIAL QUESTIONS OF FACT WERE BASED

13. In making the above findings the following material was before the Acting Minister:

(a) a departmental submission dated 11 August 1983 signed by A E Faubel;

(b) telex message dated 20 April 1983, containing details of applicant's criminal record, from Mr. MAYNARD of the department's Adelaide office, to the Central Office;

(c) letter dated 19 July 1983 from Ms DROKOS to the Minister;

(d) letter dated 19 July 1983 from CLYDE HOLDING MP to the Minister.

C. THE REASONS FOR THE DECISION

14. The applicant is a prohibited immigrant under section 16(1) (c) (ii) of the Migration Act 1958 as a person who entered Australia as an immigrant when he had been convicted of a crime and sentenced to imprisonment for a period of not less than 1 year, whose entry permit (while current) was not endorsed with a statement that the person granting it recognized him to have been so convicted and sentenced.

15. Further the applicant is a prohibited immigrant also by virtue of:

(a) Section 7(3) of the said Act, upon the cancellation of his temporary entry permit on 29 June 1983, no further temporary entry permit applicable to him having come into force upon that cancellation and

(b) Section 16(1) (b) (i) of the said Act, having for the purpose of securing entry into Australia, produced to an officer a visa that was obtained by a false representation.

16. The applicant does not fulfil one or more of the conditions of section 6A of the said Act for the grant of permanent entry permit.

17. While the Acting Minister accepted that it remains possible to regularize the applicant's continued presence in Australia by the grant to him of a suitably endorsed further temporary entry permit the Acting Minister was satisfied that such a grant was inappropriate in the circumstances by reason of the applicant's breach of the condition of his entry permit relating to employment and of the undertaking made by him in connection with his visitor visa application.

18. While a permanent entry permit may not be granted to the applicant after his entry into Australia by reason of section 6A of the Migration Act the Acting Minister considered also whether apart from the fact that the applicant is not the holder of a temporary entry permit in force there are strong compassionate or humanitarian grounds for the grant of a permanent entry permit to him.

20. While the Acting Minister considered and gave weight to the circumstances of the applicant, and in particular his relationship with Ms Drokos, the expected birth of his child, the possible hardship his expulsion from Australia might cause Ms Drokos, her daughter and the child she is expecting, and her claim that deportation would prevent her marrying the applicant, based upon the Acting Minister's findings and the representations made on the applicant's behalf, the Acting Minister was of the view that there were no strong humanitarian or compassionate grounds for the grant to him of a permanent entry permit.

21. In the particular case of the applicant -

(a) he deceived the Department for the purpose of entering Australia by not declaring his conviction and sentence in 1978;

(b) he has taken employment in Australia without permission which seemed to be an offence under Section 31B(2) of the said Act, and which was contrary to the conditions of his temporary entry permits.

22. The Acting Minister thus considered the circumstances of the applicant's case, including the personal circumstances as outlined in paragraph 20 above and decided his expulsion from Australia was warranted. The Acting Minister, notwithstanding that he had not been able to make a positive finding of fact as to the nature of the relationship between the applicant and Ms Drokos, took the view that in any case the seriousness of the deception by which the applicant had gained visitor entry to Australia was such as to make deportation the appropriate course.

Signed pursuant to Section 17 of the Administrative Decisions (Judicial Review) Act 1977 by: . . . "

The application before me is for an order of review of the Acting Minister's decision.

The grounds of the application relied on are:

"1. Breach of the rules of natural justice in deciding to make the deportation order in that the applicants were not -

(a) informed of the content of the departmental submission to the Acting Minister recommending deportation and therefore have had no opportunity to answer it,

(b) . . .

(c) . . . "

1. The decision to make the deportation order was an improper exercise of the power conferred by the Migration Act 1958 in that the respondent failed to take into account relevant considerations in the exercise of his power and the respondent failed to have regard or any proper regard to the merits of the case of the applicants. 3. 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 a Commonwealth Officer to so order." At the hearing of this matter on 20 September 1983 I made an order pursuant to o.29 of the Federal Court Rules that grounds one and two be treated separately with a view to a decision being granted with respect to the first two grounds separately from the third.

There is a preliminary question concerning the evidentiary status of the statement of reasons provided by the Minister on 15 September 1983. The statement was not in the form of an affidavit and was merely tendered at the commencement of the hearing. Some guidance as to the status of the reasons can be gleaned from Givaudan & Co. Ltd. v. Minister of Housing and Local Government (1967) 1 W.L.R. 250. In that case the Minister was under a statutory duty to provide reasons pursuant to the Tribunals and Inquiries Act 1958. His Honour Mr. Justice Megaw said at p.259:-

"The document containing the Minister's reasons is . . . an important document, required by statute to be prepared for a particular and important purpose, and it must be, and no doubt is, regarded by the Minister as such. The whole of its contents must be assumed prima facie, at least, to have been inserted for a relevant purpose: namely, the setting forth with reasonable precision and clarity of matters which are relevant as indicating and explaining positively or negatively the reasons for the Minister's decision."

In line with the thrust of these comments I take the view that the statement of reasons provided by the Minister, unless effectively challenged, are evidence of the reasons for his decision.

The question then to be considered is whether s.5(1)(a) of the ADJR Act extends the rules of natural justice beyond their common law application. I do not think it does: Capello v. The Minister for Immigration & Ethnic Affairs (1980) 2 ALD 1014; Minister for Immigration & Ethnic Affairs v. Haj-Ismail (1981-82) 40 ALR 341. Do then the principles of natural justice have to be applied in exercising the power conferred by s.18 of the Act? In Salemi v. The Minister for Immigration & Ethnic Affairs (No.2) (1977) 137 CLR 396 Barwick C.J. said he found no basis on which it could be held that the power given by s.18 must be construed as qualified by the requirement that in all circumstances natural justice be accorded the prohibited immigrant before his deportation is ordered. Stephen J. took the view that in the circumstances of that case Salemi had a legitimate expectation and the principles of natural justice applied. Jacobs J. found that he could not discern any legislative intention from s.18 in its context in the Act wholly to exclude the application of the principles of natural justice. Murphy J. took a broad view and held that the principles of natural justice applied to s.18. Therefore, four of the seven judges who decided the case seemed to feel that in some circumstances there could be an obligation upon the Minister to apply the principles of natural justice when exercising his power under s.18 of the Act.

In R v. Minister for Immigration & Ethnic Affairs ex parte Ratu (1977) 137 CLR 461 Barwick C.J. Gibbs and Aickin JJ. referred to Salemi's Case (supra) as deciding that the power conferred by s.18 was not subject to observance of the principles of natural justice. However, in that case Mason J., who was not a member of the Court in Salemi's Case took the view that the Minister in exercising his power under s.18 was not under an absolute universal or any general obligation to accord natural justice. Bowen C.J. and Franki J. in Minister for Immigration & Ethnic Affairs v. Haj-Ismail (1981) 40 ALR 341 felt that in an exceptional case there may be a duty to observe the principles of natural justice in acting under s.18 of the Act. It appears, therefore, that at least in certain exceptional circumstances the Minister may be bound to observe the rules of natural justice when exercising his power under s.18 of the Act.

I do not consider however that this is such an exceptional case. Here we have an applicant who had falsely completed his visa application by not mentioning his previous convictions, who had worked in Australia in contravention of the endorsement of his temporary entry permit, and who had denied having any convictions or having worked in Australia when initially interviewed by the officer of the Department. I find it difficult to conceive that he would have a legitimate expectation that he would not be deported.

In any case the applicant and Drokos made submissions to the Department, as too did their then solicitors, Messrs Strugnell, Deakin & Duncan and Mr. Clyde Holding, the Minister for Aboriginal Affairs. These submissions were all before the Department and the Acting Minister before the decision to deport the applicant was made. Thus, in an indirect way, the applicant was granted natural justice.

The other ground relied on by the applicant was that the decision to make the deportation order was an improper exercise of the power conferred by the Act in that the respondent failed to take into account relevant considerations in the exercise of his power and the respondent failed to have regard or any proper regard to the merits of the case of the applicants.

There is little doubt that the Act requires that the Minister should give consideration to whether or not in all the circumstances the prohibited immigrant should be deported: Salemi v. The Minister for Immigration & Ethnic Affairs (supra) per Stephen J. at pp.28 and 29; Ates v. The Minister of State for Immigration & Ethnic Affairs, and the Commonwealth of Australia (unreported decision of Smithers J. dated 3 March 1983 - VG No. 3 of 1983); 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).

But in this case the Acting Minister was seriously hampered in the performance of his function by those reporting to him in a very important respect. The impression was conveyed to him that the applicant and Drokos were in wide disagreement as to the length of their defacto relationship and as to it having commenced and been well established in Greece. He was encouraged to believe that it was the view of his officers that this disagreement threw doubt on the notion that the applicant and Drokos came to Australia as parties in a well established defacto relationship and that that relationship had continued in Australia. He was not told that the only officer who had contacted the applicant believed that in confirming what Drokos had said the applicant had spoken the truth. And of course the fact that the applicant was thought to be in disagreement with Drokos also threw a dark shadow over the credibility of Drokos. How could anybody treat seriously a claim that there was an association of at least twelve months duration in Greece if one of the partners asserted that it commenced only in Australia and had existed for only two and a half months? It is apparent therefore that so much doubt was thrown on the claim that there was a genuine stable relationship between the applicant and Drokos that from a practical point of view its weight could only be trivial. From the point of view of substance it could only be treated by the Minister as bordering on fancy. It is impossible to think that it could have been treated by the Acting Minister as a real and important circumstance to be given consideration.

Counsel for the respondent contended that whether or not the Acting Minister was misled it could not be said that the possibility of there being a genuine long standing relationship had not been considered. He referred to Akpan v. The Minister for Immigration & Ethnic Affairs (unreported decision of Sheppard J. dated 7 April 1982 - G No. 16 of 1982). In that case his Honour had to deal with a circumstance, namely the possibility of there being or not being an existing marriage, which had been considered by the Minister on material put before him by his Department and he had formed an opinion on the matter by reference to which he made his decision under s.18 of the Act. Evidence subsequently submitted to the Court suggested that the opinion formed was incorrect. It was held that even if the proper inference from that evidence was that the opinion was not in accordance with the true position it could not be said on that account that the Minister when he made his decision had failed to take a relevant consideration into account or had taken an irrelevant consideration into account. The matter constituting the relevant consideration was the existence or non-existence of the marriage. He had considered and formed an opinion on the evidence before him and the circumstance that the opinion, genuinely formed, might be wrong because of subsequently led evidence did not render the Minister's decision liable to review for failure to take a relevant consideration into account.

In this case also, it is not shown that the Acting Minister did not consider the relevant subject matter, namely the nature and duration of the relationship between the applicant and Drokos. But it is shown that the materials put before the Acting Minister by the Department were deficient in that they omitted facts of considerable importance and conveyed to the Acting Minister that there was no substance in the claim of Drokos that the relationship was stable and long lasting. Having regard to the fact that at the relevant time there was no dispute between the applicant and Drokos as to the nature and duration of the assocation between them and that the officer concerned felt that the applicant was telling the truth in that respect, the evidentiary position was seriously distorted in what was conveyed to the Acting Minister. This was the more important as, in general, the thrust of what was put to the Acting Minister would indicate that the Departmental view on these matters was one of scepticism.

In these circumstances it is important to note what was said by the Full Court of the Federal Court in Minister for Immigration & Ethnic Affairs v. Haj-Ismail (H&N) (supra) at pp. 348 and 365. The effect of the comments made by the Full Court was stated in the headnote as follows:-

"The Minister's decision of 4 June 1981 in making deportation orders against the respondents was wrongly based on information supplied by the department to the Minister on 3 June 1981. Because this report was incorrect or incomplete in evaluating the respondents' true position the decision of 4 June 1981 should be set aside."

See also Re Gallo v. Minister for Immigration & Ethnic Affairs 3 ALN (9) (1980) V No. 29 of 1980 (unreported).

In this case relevant facts actually known to the Department which were favourable to the applicant were not disclosed to the Acting Minister. The case for remitting the matter for further consideration is therefore a strong one.

It is said, however, that notwithstanding the foregoing this application should be rejected because the Acting Minister, having indicated that on the question of the stability and duration of the applicants relationship with Drokos he was left in doubt, went on to say that "in any event" the record of the applicant's misstatements and misconduct was such that an order for deportation should be made. In terms this statement rendered irrelevant all considerations of the relationship and would support the contention that the deficiencies in the information and departmental views conveyed to the Acting Minister concerning the relationship just did not matter. I do not take this view. To make the Acting Minister's statement that "in any event" the decision must be to deport the applicant of significance it was necessary that to his mind the possibility that there was a stable and lengthy relationship had to be a real one. I do not think that in light of the information given to the Minister it could have been real. If, however, he had known that both parties to the relationship asserted its stability and duration and that an officer of the Department had formed a favourable view of the applicant's assertion in that respect the Acting Minister would have been able to consider the possibility of the relationship being stable and lengthy as a real one. And indeed on a consideration of the whole of the material that was put before this Court there seems little reason to doubt this. But for the foolish and irrational original statement of the applicant about the matter and notwithstanding varying estimates of the length of the relationship made by Drokos there is little reason to doubt the fact. Her statement that she sought a divorce in Australia in March 1983, when properly put in context, is quite insignificant.

It may well be that the applicant's misstatements concerning his past and in his application for the visa and his misconduct in working in Australia are such that "in any event" the Acting Minister may in his discretion decide that a deportation order be made. But on the other hand if it be the truth that the relationship is genuine the fact that Drokos is an Australian citizen carrying the child of the applicant and is genuinely attached to him domestically and economically might lead to a different conclusion. To enable consideration of the applicant's position and, incidentally, that of Mrs. Drokos, to be considered against the true background this Court should remit the matter for reconsideration.

There is one matter to which reference was not made in argument, namely, that the departmental report to the Acting Minister on which he acted contained assertions that (if the deportation order were not made) the applicant would be unable to regularise his status in Australia because he would be unable to satisfy the character requirements relating to the grant of a temporary permit endorsed in accordance with s.16(1) of the Act. That being so, he would be unable to make an application for permanent resident status pursuant to s.6A of the Act based on strong humanitarian and compassionate grounds. While in any event, it was essential that the situation concerning the defacto relationship between the applicant and Drokos should have been put fairly before the Acting Minister, it was especially desirable in this case, where it is probable that the extension to the applicant of a benefit on humanitarian and compassionate grounds would depend on his importance to Drokos in her capacity as an Australian citizen in a most exposed position emotionally and economically.

In the result the order is that the decision of the Acting Minister be remitted to him for reconsideration. The applicant's costs will be paid by the respondent.