Srokowski, L.W. v Minister of Immigration, Local Government & Ethnic Affairs

Re: LESZEK WLADYSLAW SROKOWSKI
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT ETHNIC AFFAIRS
No. WAG 9 of 1988
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J(1).

CATCHWORDS

Administrative Law - Administrative Decisions (Judicial Review) Act 1977 - Application for judicial review of decision not to release the applicant from custody pending deportation - Applicant arrested and detained in custody pending deportation - Inability of respondent to deport applicant - Power to arrest and detain - What is meant by "in custody pending deportation" - Power to release from custody - Considerations relevant to decision to release - Conditions which may be imposed upon release from custody.

Administrative Decisions (Judicial Review) Act 1977 s.13, paras.5(1)(e), 5(2)(b), sub-para.11(3)(b)(i)

Migration Act 1958 ss.27, 31, 38, 39, 41, 54, 55, 66D, sub-ss.6(6), 20(2), para.6A(1)(c)

Immigration Act (UK)

HEARING

PERTH

#DATE 27:6:1988

Counsel for the Applicant : H. Christie

Solicitor for the Applicant : Director of Legal Aid

Counsel for the Respondent : P. Macliver

Solicitor for the Respondent : Australian Government Solicitor

ORDER

The decision of the officer authorized by the respondent made on 8 October 1987 not to release the applicant from custody be set aside.

The applicant's request for release from custody be remitted to the respondent for reconsideration by an authorized officer according to law.

The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 seeking a review of a decision made under the Migration Act 1958 ("the Act"). The decision sought to be reviewed is described as "the decision of the respondent's delegate made on 8 October 1987 not to release the applicant from custody, pursuant to Section 39(7) of the Migration Act 1958".

Section 66D of the Act permits the Minister to delegate his powers under the Act to an officer and provides that such a delegated power when exercised by the delegate is deemed to be exercised by the Minister.
Sub-section 39(7) of the Act empowers an authorized officer to order the release of a person who is in custody pursuant to that section.
An authorized officer is defined in s.5 of the Act as follows:

"'authorized officer', in relation to the exercise of any power or the discharge of any duty or function under this Act, means a person authorized by the Minister to exercise that power or discharge that duty or function."

It is, therefore, not strictly correct to describe a decision made by an authorized officer under sub-s.39(7) as the decision of a delegate of the Minister. The discretion exercised pursuant to sub-s.39(7) is a discretion conferred by the Act on persons nominated by the Minister to exercise it. It would not be proper for the Minister to direct the officer how to exercise that discretion (see Ansett Transport Industries (Operations) Pty. Limited v. The Commonwealth of Australia (1977) 139 CLR 54 per Mason J. at pp 82-83). Looked at in these terms, such an authorized officer, whose decision is sought to be reviewed, may be properly joined as a party to the application for review. The Minister, of course, has responsibility for authorizing that officer to exercise the power provided by the Act and has a direct interest in the decision under review and, therefore, will almost always be a proper party to such an application.
Accordingly, it is appropriate to read the application in this matter as an application to review the decision of an authorized officer and to read the relief claimed in that application by way of an order that the respondent Minister further consider the application for release as a claim for relief by way of an order that the Minister direct an authorized officer to reconsider the applicant's request for release.
The Minister has appeared and responded to the application and has raised no objection to its form.
The relevant facts of this matter are as follows:
The applicant is 38 years of age and was born in Poland of Polish parents. He completed secondary education in Poland and has a diploma in hotel management and catering.
He arrived in the United Kingdom from Poland in January 1975. In July 1975 he was refused leave to remain in the United Kingdom. He appealed against that refusal and some time later his appeal was rejected.
On 14 August 1976, the applicant married an Irish citizen then residing in the United Kingdom and on 23 August 1976 he applied for leave to remain in the United Kingdom on the basis of that marriage. He also delivered up his passport. The applicant and his wife separated after a few months and were divorced in 1982. In May 1977, the Secretary of State refused the applicant leave to remain in the United Kingdom. At that time the applicant could not be found to advise him of the Secretary of State's decision and apparently his Polish passport was not returned to him.
Between 1977 and 1983 the applicant was employed as the head waiter at an established London restaurant.
In 1976 he met a Mrs. Wanda Kotowski. They commenced to live together as husband and wife in 1980. The applicant and Mrs. Kotowski purchased a home as co-owners and made improvements to the property.
They separated in September 1982. In January 1983, in the course of an attempted reconciliation, the applicant quarrelled with Mrs. Kotowski at the co-owned property. The applicant wounded Mrs. Kotowski with a knife and later set fire to the house.
The applicant was arrested forthwith and remained in custody awaiting trial. In September 1983 it appears that he pleaded guilty to charges of malicious wounding and arson. In a plea in mitigation of sentence it was stated on behalf of the applicant that he had become very disturbed and depressed by the breakdown in the relationship between himself and his common law wife and that, although he could not remember the details, he had attacked her and then set fire to the house where they lived with the intention of killing himself. It was said in that plea that Mrs. Kotowski was not seriously injured and the house was only slightly damaged. The applicant was sentenced to imprisonment for a period of eighteen months, six months of which were suspended. Apparently the time spent on remand awaiting trial between 10 January 1983 and 29 September 1983 was applied as time served under sentence and he was released from imprisonment on 4 October 1983.
On 3 October 1983, the Secretary of State issued an order that the applicant be detained pursuant to the Immigration Act (UK) upon his release from imprisonment. Accordingly, the applicant was taken into custody upon his release and on 6 October 1983 whilst in detention, the applicant was informed of the decision of the Secretary of State that the applicant be deported. The Secretary of State had decided that deportation of the applicant would be conducive to the public good and that the applicant should be removed to Poland.
The applicant lodged an appeal on 17 October 1983 but later decided he no longer wanted to stay in the United Kingdom and in February 1984 withdrew his appeal against the deportation order. Before withdrawing the appeal the applicant applied to Australian immigration authorities for permission to migrate to Australia.
A younger brother of the applicant had migrated to Australia in April 1981. He resided in Perth and had become sufficiently established in his new country, exercising his qualifications as a geologist, to be able to make a formal application in January 1984 to sponsor his brother's migration to Australia. He was married and his wife supported the offer to sponsor the applicant. Whilst in detention the applicant applied for permission to enter Australia as a migrant relying upon his brother's undertaking to sponsor his entry and settlement. In March 1984 the applicant's brother was informed that his application to sponsor the migration of the applicant had been refused but he was entitled to lodge another sponsorship application after the applicant had returned to Poland.
The applicant was advised by his brother that his application for permission to enter Australia as a migrant had been refused and he thereupon escaped from the remand centre in which he had been detained pending deportation and left the United Kingdom to travel to France. Shortly after the applicant returned to the United Kingdom and obtained employment. He remained in England until June 1985.
At some time before June 1985 the applicant obtained the passport of another Polish citizen, Tomasz Misztela, by payment of a substantial sum of money. The applicant inserted his photograph in the passport, obtained a visa to travel to Australia in the name of Misztela and arrived at Perth on 22 June 1985. He presented the falsified passport to gain entry into the country and was granted a temporary entry permit valid for a period of two months.
The entry permit was not renewed on or after expiry and the applicant returned the passport by post to its owner in the United Kingdom. The applicant obtained employment as a waiter at a Perth restaurant.
In October 1985 at Perth, he was arrested and charged with the offence of driving a motor vehicle whilst under the influence of alcohol. The applicant was released on bail but failed to answer his bail when the matter came before the court. Instead the applicant travelled to the north-west of Western Australia and obtained employment at a goldmine for approximately three months.
He returned to Perth before Christmas and surrendered to police on 30 December 1985. He appeared in court on 31 December 1985 and pleaded guilty to the charge on which he had been arrested. A fine was imposed, but the applicant was given no time to pay it and was committed to prison for non-payment of that fine. The applicant says that on that day he asked a policeman he saw at the court "to inform officers of the Department of Immigration that...(he) was an illegal immigrant." On 13 January 1986, after displaying some signs of mental disturbance, the applicant was transferred from Fremantle Prison to Graylands Hospital for psychiatric examination and treatment. A manic-depressive disorder was diagnosed. The condition responded to medication. Whilst serving his sentence in Brixton Prison in the United Kingdom in 1983, the applicant had been admitted to the prison hospital for treatment of depressive illness.
On 7 February 1986 at Graylands Hospital, the applicant was arrested by an officer of the Department of Immigration and Ethnic Affairs, pursuant to s.38 of the Act, as a person who was reasonably supposed to be a prohibited non-citizen.
The applicant had been discharged from hospital immediately before his arrest.
Between 7 February 1986 and 21 May 1986, the applicant was detained in custody at Fremantle Prison, pursuant to s.38 of the Act. It is assumed that the period of detention was extended in the manner provided by the Act. (See sub-s.38(4)).
By letter dated 18 February 1986, the applicant applied to be recognised as a refugee and a formal application for the issue of an entry permit pursuant to para.6A(1)(c) of the Act was lodged on 17 March 1986. On 16 May 1986, the Determination of Refugee Status Committee recommended that the Minister should not determine that the applicant had the status of a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951 or of the Protocol relating to the Status of Refugees of 31 January 1967.
That recommendation was accepted and on 21 May 1986 a delegate of the respondent ordered that the applicant be deported from Australia. Pursuant to sub-s.38(6) of the Act, the applicant was thereupon deemed to be arrested under s.39 of the Act. Pursuant to sub-s.39(6), a deportee may be kept in such custody as a Minister or an officer directs. In the applicant's case a direction was made by an officer under the Act on 21 May 1986, that the applicant be kept in the custody of the Superintendent of Canning Vale Remand Centre pending deportation.
Since 21 May 1986 the Minister has been unable to effect deportation of the applicant. Poland will not issue travel documents for the applicant. The United Kingdom, from whence he came, will not accept him notwithstanding that the applicant resided there for approximately ten years and is the co-owner of a residential property in that country.
In February 1987, officers of the respondent's department ("the department") were continuing to seek the issue of travel documents by Poland. They were acutely aware of the urgency of the matter having regard to the period the applicant had been held in custody at the department's direction, namely, 12 months.
On 4 March 1987, the applicant was stripped of his Polish citizenship by a ruling of the Presidium of the Polish People's Republic. In 1984 whilst in the United Kingdom, the applicant had approached the Polish Embassy in London and made enquiries about obtaining permission to change his Polish citizenship. The applicant did not formally renounce his citizenship and he retained it until March 1987.
Notwithstanding that the applicant's citizenship had been revoked,an approach was made by a departmental officer to an officer at the Polish Ministry of Foreign Affairs in Warsaw seeking the issue of travel documents by Poland. On 19 May 1987 the Polish Ambassador to Australia advised the Department of Foreign Affairs that due and urgent steps had been undertaken to find out what legal and practical means existed to meet the request for the issue of travel documents, but the Ambassador had been informed that the applicant was no longer considered a Polish subject and no Polish travel documents could be issued to him.
In June 1987 a departmental officer at the Australian Embassy in Warsaw was firmly advised by the Polish Ministry of Foreign Affairs that "in the eyes of the Polish Government, Srokowski is no longer Polish and the Australian Government can do what it likes with him" and that "there is simply nothing further to discuss in this case".
Departmental officers then considered that it may be appropriate to seek to have the Australian Ambassador in Warsaw discuss the applicant's case at a senior level in the Polish Ministry of Foreign Affairs in conjunction with further submissions to the Polish Ambassador in Australia. In August 1987 a request was made to the Department of Foreign Affairs to pursue the matter with its Polish counterpart at the appropriate level. By October 1987 there was no indication that the Polish Ministry of Foreign Affairs had agreed to receive such representations or respond to them.
On 24 September 1987, the applicant instructed a legal officer employed by the Director of Legal Aid to act on his behalf. The officer wrote to the Minister and made three requests on his client's behalf: firstly, that there be reconsideration of the refusal to extend refugee status to the applicant; secondly, that there be a grant of territorial asylum; and thirdly, that he be released from custody pursuant to the provisions of sub-s.39(7) of the Act, pending a decision on the requests for determination of refugee status and grant of asylum. The Minister was advised that the applicant would be willing to abide by normal reporting conditions.
At about the same time the applicant's depressive disorder resurfaced and he was transferred from Canning Vale Remand Centre to Fremantle Prison where he remained until 3 December 1987.
By letter dated 9 October 1987 written on behalf of the Secretary of the department, the applicant's solicitor was advised that it had been decided that the applicant would remain in custody.
On 19 October 1987, the applicant's solicitor sought a statement of the reasons for that decision pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977. Those reasons were signed by the decision-maker on 15 December 1987. This application was commenced on 21 January 1988 presumably within the time prescribed in sub-para.11(3)(b)(i) of the Administrative Decisions (Judicial Review) Act 1977.
Meanwhile, the applicant was taken from Fremantle Prison and admitted to Graylands Hospital for psychiatric care on 3 December 1987. On that occasion it was considered that the applicant presented an eccentric personality and it was noted that his abnormal behaviour settled spontaneously without medication. It was considered most likely that the abnormal behaviour occurred in response to significant stresses and, even if mental illness were the cause of the behaviour, it would settle quickly with small doses of medication. He was discharged from hospital and returned to Fremantle Prison on 30 December 1987.
On or about 15 February 1988, the applicant's solicitor was advised that arrangements had been made to effect the applicant's departure from Australia by placing him on the Polish vessel "Gdansk", due to leave Fremantle on Monday 15 February 1988. On 11 February 1988, the captain of the vessel advised the ship's agents that he would not accept the applicant on board as a passenger as the applicant did not have a valid Polish passport and appropriate visas.
On 15 March 1988, the applicant's solicitor wrote to the United Nations' High Commissioner for Refugees requesting assistance to find a nation to accept the applicant. The High Commissioner's office responded by a letter of 28 March 1988 advising that the applicant must first be determined to be a refugee under the United Nations Convention relating to the Status of Refugees. The High Commissioner's office pointed out that the revocation of the applicant's Polish citizenship may constitute fresh evidence which would support a further application to the Determination of Refugee Status Committee for determination of refugee status provided that the circumstances surrounding the revocation of citizenship were relevant to the assessment of refugee status. Having regard to the fact that a departmental officer in Warsaw was informed by an officer of the Polish Ministry for Foreign Affairs in March 1987 that the decision to take away the applicant's citizenship had been made because the applicant had "been writing to the highest authorities in Poland over the last few years from many countries criticising the communist government in Poland", it is possible that there is material that may be submitted to the Determination of Refugee Status Committee to show that the circumstances relating to the revocation of citizenship are relevant to the assessment of the applicant's claim to be granted refugee status.
No action has been taken by the applicant to seek reconsideration of his claim for refugee status by the Determination of Refugee Status Committee as suggested by the High Commissioner but if the applicant is able to show that the cause for his loss of citizenship resulted from his conflict with the Polish government any claim he might make for refugee status must receive serious consideration. (See Singh v. The Minister for Immigration and Ethnic Affairs (1987) 15 FC.R. 4 per Forster J. pp 7-8.)
The applicant has been detained in custody by authority of the Act for two years and four months and for two of those years he has been held in custody "pending deportation".
The facts set out above show that a significant change in the applicant's circumstances occurred in March 1987 when his native country resolved to revoke his citizenship.
Notwithstanding that the applicant retained his Polish citizenship between the time of his arrest in February 1986 and March 1987, the respondent had great difficulty in attempting to deport the applicant from Australia. Poland refused to provide travel documents to facilitate the deportation.

Since March 1987, a period of fourteen months, the respondent has fared no better and the attempted deportation of the applicant in February 1988 was obviously abandoned when the captain of the vessel "Gdansk" refused to accept the applicant as a passenger.
The facts show that as at October 1987 the Minister was experiencing great difficulty in deporting the applicant. A departmental suggestion at that time that an Australian Document of Identity be issued to facilitate travel arrangements for the deportee apparently provided no solution to the problem, probably because the ability to effect a deportation depends upon the willingness of any country to receive the deportee when he arrives there. It is part of the exercise of the power to deport to consider whether or not it is desirable to send a person to a country which is known to be unwilling to receive him and to consider whether or not it is probable that he will still be on board the ship or aircraft which takes him away when it returns to this country. (See Znaty v. Minister of State for Immigration (1972) 126 CLR 1 per Walsh J. p 10. and O'Connell International Law (2nd Ed.) Vol.2 p 710.)
The information before the authorized officer called upon to make the decision upon the applicant's request for release from custody in October 1987, made it clear that no actual arrangements for deportation were then in place and no such arrangements were imminent.
The powers to arrest and to detain in custody, contained in ss.38 and 39 of the Act, are necessary adjuncts to the power of deportation and in many cases may be essential to the proper exercise and administration of that power. However, a deporting state has some measure of international responsibility to respect the dignity and personal rights of a deportee. (See O'Connell (supra) p.707.)
The powers in ss.38 and 39 of the Act to deprive a person of liberty are powers limited by the specific purposes they serve. It has to be so. In a free society there is not, and cannot be, an unfettered power to deprive a person of his or her liberty, and it may be taken to be a grundnorm that an individual has a right to enjoy such liberty.
Section 38 of the Act specifies a limited period for detention pending determination of identity and status and the issue of deportation order.
Section 39 permits the detention in custody of a deportee pending deportation.
It is not enough that a deportation order has been issued. For deportation to be said to be pending after the issue of a deportation order it would be necessary for the effectuation of the deportation to have some bona fide pursuit and for the deporting authority to be at least engaged in an attempt to make arrangements for deportation. Furthermore, notwithstanding that such efforts to attempt to effect deportation may be diligently pursued, there may be a point when the period of custody becomes inordinate and the use of the power to detain in custody becomes oppressive. (See Znaty v. Minister of State for Immigration (supra) p 10 per Walsh J.)
Section 20 of the Act provides that where an order for deportation has been made by the Minister, that person shall be deported accordingly unless the order is revoked. Delay in the execution of a deportation order does not affect the validity of the order (sub-s.20(2)). Such a provision is inserted to preserve the integrity of the deportation order - it would not prevent consideration of whether an inordinate period of imprisonment has become oppressive.
The exercise of the discretionary power vested in an authorized officer to release a deportee from custody pursuant to sub-s.39(7), obviously is not tied to revocation of the deportation order. Revocation would provide a right to release. To the contrary, it is a power exercisable whilst a person is under an order of deportation, but because deportation may not then be pending or imminent and it is otherwise appropriate that such a deportee be released, a discretion is provided in an authorized officer to prevent the detention provisions of the Act becoming a source of oppression.
The provisions of s.41 of the Act underline this construction. Pursuant to this section, a deportee in custody is to be given access to legal advice and all reasonable facilities for obtaining legal advice or taking legal proceedings in relation to his custody are to be made available to him. (emphasis added)
The maximum penalty upon conviction for the offence of production of a false passport to gain entry into Australia, in breach of s.27 or s.31 of the Act, is a period of imprisonment not exceeding six months. A person held in custody under the Act for a period of twenty months by use of the powers of arrest and detention would be entitled to expect his circumstances to receive very close consideration upon a request for release from custody.
One course that would require consideration upon such a request being received would be the possibility of directing a release from custody upon conditions. An authorized officer would be entitled to impose conditions intended to fulfil the purposes of the Act. There is no express power in the Act to impose such conditions, unlike the express power to impose conditions contained in sub-s.6(6) of the Act, but such a power must be implied as necessarily ancillary to the power to release prohibited non-citizens and deportees contained in ss.38 and 39 of the Act. Without such implied powers the purposes of the Act could be stultified and the administration of this part of the Act made unmanageable. The release of a prohibited non-citizen or a deportee from custody does not change the status of that person in any way and the need for departmental officers to be kept informed of the whereabouts of such a person and to be confident that he will present himself when called upon is obvious. Without such powers to impose conditions for the purposes of the Act, officers may feel obliged to arrest prohibited non-citizens and deportees and detain them in custody indefinitely.
Section 54 of the Act permits an authorized officer to require security for compliance with any condition imposed for the purposes of the Act or regulations. Conditions imposed as part of the exercise of the power to order the release of a deportee from custody pursuant to sub-s.39(7) would be conditions imposed for the purposes of the Act and security for compliance with such conditions may be required pursuant to s.54.
Such conditions may be a requirement to report at regular intervals to departmental officers; to surrender to a departmental officer when called upon to do so; to keep departmental officers informed of place of residence or a stipulation that a person live only at a specified address and with approved persons. Other conditions may be a requirement that any application for determination of refugee status or prosecution of an appeal by way of review be carried out with due diligence.
In making a decision upon a request by a deportee for release from custody, a decision-maker would be required to consider and weigh the respective merits of various elements. For example, the period of imprisonment undergone by the deportee; the imminence of deportation or the extent to which efforts had been made to effect arrangements for deportation; the safety of the community if the deportee were released; and the likelihood of the deportee presenting himself for deportation or complying with any conditions imposed upon his release. In addition in some cases there may be significant compassionate grounds that must be considered. The elements recited by no means exhaust the range of matters that may be considered but they are some that are obviously germane to the exercise of the discretion.
The authorized officer's statement of reasons for decision provided pursuant to s.13 of the Administrative Decisions (Judicial Review) Act, set out findings on material questions of fact. Under this heading, notwithstanding Poland's refusal to issue travel documents for the applicant, the authorized officer has stated that negotiations are continuing "on a government to government basis...for the issue of a travel document to the applicant" and has apparently inferred from that finding that there is a prospect that deportation will be able to be effected. In the absence of any other material that conclusion is an overly optimistic view of the various letters and cables placed before the decision-maker for his consideration.
The reasons for the decision are contained in three paragraphs and it is appropriate to set them out in full:

"14. As a result of the applicant (a) entering Australia using a passport which was not issued to him, (b) having being sentenced to a period of imprisonment for not less than one year, and as a result of the fact that he did not obtain an endorsed entry permit, the applicant is a prohibited non citizen pursuant to Section 16(1) of the Migration Act 1958.

15. In reaching my decision I considered the applicant's admitted criminal history in the United Kingdom and the nature of the criminal offences for which he had been convicted. I also had regard to the applicant's statement that he had received treatment for depression while imprisoned in the United Kingdom and the Interim Discharge letter issued by the Psychiatric Services of the WA Health Department Graylands Hospital on 4 February 1986 indicating that the applicant suffered from manic depressive psychosis. I concluded that the applicant's criminal and psychiatric history were such that he should not be released into the Australian community.

16. I also took into account the fact that the applicant had been held in custody in the United Kingdom pending his deportation and had escaped from custody. I considered his entry to Australia by means of deception and the fact that he had only come to the Department's notice by way of apprehension and that an order for his deportation had been signed on 21 May 1986. I concluded that the applicant's history of deception and the manner in which he came to departmental notice were factors which did not support his release."

The material set out in paras.14 and 16 is more relevant to a decision to deport than a decision on a request for release from custody. The capacity for deception referred to in those paragraphs would be relevant, of course, to a consideration whether the applicant would abide by any conditions imposed requiring the applicant to report or surrender. Other matters relevant to such a consideration would be the fact that the applicant had a brother, who was an Australian citizen, residing in Perth and the period of incarceration he had already endured.
In para.15 the authorized officer has considered matters that would be pertinent to consideration of the degree of risk the applicant may pose to the safety of the Australian community if he were released from custody. Such consideration is plainly necessary as part of the process of deciding whether the applicant should be released from custody, but other matters that would be relevant to that issue, the issue of safety, have to be assessed as as well if the decision-maker's manner of consideration of that issue is to remain relevant. For example, the applicant's steady and responsible work history in London, the singular nature of his violent behaviour and its domestic background and the lack of any evidence of general violent behaviour or anti-social attitude. With regard to his depressive illness, the fact that it was a condition that responded to treatment and medication relatively easily and in itself presented no threat to community safety would be germane to consideration of this risk.
The authorized officer has stated in para.15 that upon consideration of the applicant's criminal and psychiatric history alone he has concluded that the applicant should not be released into the Australian community. That conclusion has been reached in the absence of the weighing-process referred to above.
It appears that the authorized officer had regard to the following as the dominant matters, namely: the fact that the applicant was a deportee and the reasons therefore, and the fact that he had received treatment for a depressive illness. The continued deprivation of the applicant's liberty over a period of twenty months and the issues raised by such an extended period of incarceration do not appear to have been considered. (See Ates v. Minister of State for Immigration and Ethnic Affairs (1983) 67 FLR 449.)
I accept the following passages as correctly describing the limitations upon judicial review of an administrative discretion:

"The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 at 228."

(Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 60 ALJR 560 at 566 per Mason J.)

"As has been seen, a failure to take a relevant consideration into account in the exercise of a power is, under s. 5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s.5 of the Administrative Decisions (Judicial Review) Act

1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. In this regard, I consider that the following comments of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane L JJ in Elliott v. Southwark London Borough Council (1976) 2 All ER 781; (1976) 1 WLR 499 at 507, in relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case:

'It is clear that the matters which the local authority should consider...vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.'

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

(Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR 363, 374-5 per Deane J.)
The mere recitation of the reasons shows that the authorized officer's discretion has miscarried. The reasons display no assessment of some most important and relevant considerations, such as the inordinate period of imprisonment, the lack of imminence of deportation and the indefinite prospect of any arrangement for deportation being effected in consequence of the applicant's loss of his native citizenship. Furthermore, the reasons show no consideration of whether suitable conditions could be imposed and appropriate security obtained to secure compliance with these conditions.
It was submitted by the respondent's counsel that although the decision-maker did not allude to the fact that the applicant had been stripped of his Polish citizenship and the impact this had on the respondent's ability to deport him, such matters were plainly set out in the material before the decision-maker and it must be concluded that he duly considered it. The decision-maker may have sufficiently integrated this aspect into the matrix of matters considered by him. Then again, he may not.
The Court must look at the reasons for decision and the decision itself to see whether inference may be drawn that such a matter has been taken into account in a real sense notwithstanding there may be no specific reference to it. (See Turner v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388, 392 per Toohey J.) In the present case the whole thrust of the decision-maker's statement of reasons and decision militate against such an inference.
For the reasons set out above I have concluded that the decision-maker exceeded the limits of his discretionary power by failing to take relevant considerations into account in the exercise of that power being matters he was bound to consider if the power was to be properly exercised and accordingly the decision may be reviewed pursuant to paras.5(1)(e) and 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977.
The decision of the officer authorized by the respondent made on 8 October 1987 not to release the applicant from custody should be set aside and the applicant's request for release from custody should be referred to the respondent for due consideration by an authorized officer in accordance with the Migration Act 1958 and these reasons.

[1988] FCA 325

27 JUNE 1988