Taveli v Minister for Immigration, Local Government and Ethnic Affairs

Re: MELE FAKAOLA TAVELI; INOKE PAUU TAVELI FAKA'OSI; TAVELI UIKILIFI
AND TAILIILI TAVELI FAKA'OSI
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHIC AFFAIRS
No. N G 1393 of 1988
FED No. 175
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Administrative Law - Immigration - Applications for permanent residence - Decisions to refuse applications and to deport applicants - Validity of decisions - Natural justice - Incorrect statement made in departmental submission to decision-maker that male applicant arrested after involvement in hotel brawl - Reference to use by applicants of Medicare benefits - Whether sufficient time allowed to applicants to put relevant material before decision-maker - Failure to take into account relevant circumstances - Effect of fact that statute identifies relevant considerations regarding permanent entry permits - Proper inference to be drawn in respect of documents attached to submission - Omission of material relating to satisfaction by applicants of entry requirements - Unreasonableness - Effect of invalidity of deportation order on subsequent detention of male applicant.

Migration Act 1958 ss.5, 6, 6A, 18, 38, 39.

HEARING

SYDNEY

#DATE 28:4:1989

Counsel for the Applicants: Mr C J Stevens

Solicitors for the Applicants: Craddock, Murray & Neumann

Counsel for the Respondent: Mr B Skinner

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The decisions made by Tuong Quang Luu on behalf of the respondent:

(a) to refuse the grant to each of the second and fourth applicants of a temporary entry permit;

(b) to refuse the grant to each of the second and fourth applicants of a permanent entry permit; and

(c) to deport each of the second and fourth applicants;

are each invalid.

The detention in custody of the second applicant in reliance upon the purported deportation order made by the said Tuong Quang Luu against the second applicant on 28 November 1988 between the time when the second applicant was informed of the making of that order by a person who was an "officer", within the meaning of s.5 of the Migration Act 1958, and the release of the second applicant pursuant to the order made by this Court on 2 December 1988 was unlawful.

Each of the decisions referred to in order (1) hereof be set aside as from the date of those decisions.

The applications made to the respondent by the second and fourth applicants for the grant to each of them of:

(a) a temporary entry permit; and

(b) a permanent entry permit be remitted to the respondent for further consideration according to law.

The respondent pay to the applicants their costs of the proceeding.

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

JUDGE1

This application, made under the Administrative Decisions (Judicial Review) Act 1977, seeks the review of several decisions made under the Migration Act 1958 by Tuong Quang Luu, the delegate of the respondent Minister. Those decisions concern the second and fourth applicants, Inoke Pauu Tavelli Faka'osi and Tailiili Taveli Faka'osi. They also concern the first applicant, Mele Fakaola Taveli, the infant daughter of Mr and Mrs Faka'osi who was born in Australia shortly after her parents' arrival in this country from Tonga in August 1984 and Taveli Uikilifi, the father of Mr Faka'osi, who has resided in Australia for a number of years and was granted permanent resident status in October 1983.

Mr and Mrs Faka'osi have two other children, now aged nine years and eight years, who were born in Tonga and came with them to Australia. Although not applicants in this proceeding, those children are also directly affected by the subject decisions. If their parents are deported, they also will be returned to Tonga.
The sponsorship application
Two sisters of Mr Faka'osi are citizens of, and resident in, Australia. On 9 December 1982 one of those sisters, Ofaheanga Tapa'atoutai, lodged an application with the Department of Immigration and Ethnic Affairs to sponsor the migration to Australia of Mr and Mrs Faka'osi. This application was refused. In a letter dated 8 April 1983 the Regional Director of the Department notified Mrs Tapa'atoutai of the decision. In that letter the Regional Director explained the operation of the points system and Mrs Tapa'atoutai's entitlement to have the decision reviewed by the Immigration Review Panel:

"In order to be approved for migration, sponsored brothers, sisters and non-dependent children have to get 60 points when interviewed overseas under a system of selection which tests their general economic and employment prospects in Australia. This system is described in more detail in the attached leaflet 'The Migration Points System - How it Works'.

One of the first things we do in considering a sponsorship here in Australia is to see whether the sponsored relative would be likely to get 60 points overseas. Where it is clear that a sponsored relative would not get 60 points, the case is not sent overseas for further processing. We do this because we do not want to give people unrealistic hopes. I am sorry to tell you that even our generous assessment shows that your relative would not get 60 points and would not therefore be approved for migration. In view of this we will not be considering the case any further. A copy of the form used in reaching our conclusion is attached.

I am sorry that I do not have better news for you, but Australia receives over one million enquiries about migration each year and only a limited number of those people can be accepted. However, if you think that this decision is wrong you may have it reviewed by writing to the Immigration Review Panel. A leaflet is enclosed which will tell you how to go about having this decision reviewed."

Mrs Tapa'atoutai made an application for review of the decision by the Immigration Review Panel. On 11 September 1984 she was asked to submit a copy of the Department's letter and thereafter the matter was referred to the Panel. However, before the Panel met to consider the case, an officer of the Department, whose identity is not disclosed by the evidence, reassessed the points applicable to Mr Faka'osi. The officer scored the application at 61 points, upon the basis that Mr Faka'osi had an available job offer. Thereafter, it was appreciated, within the Department, that review by the Panel might be unnecessary. On 6 December 1984 the Department wrote to Mrs Tapa'atoutai in the following terms:

"I am writing concerning your sponsorship for your brother, Mr Inoke Pau'u Taueli (sic) and family from Tonga, who are presently on a visit to Australia.

The sponsorship was refused by the Department's Sydney Office on 8 April 1983 and you subsequently lodged an appeal with the Immigration Review Panel in September this year.

As several changes have occurred in your circumstances it may now be possible to accept a fresh sponsorship from you. One significant change would be your Australian citizenship; another would be an improvement in your and your husband's income which would allow you to give a greater degree of support to your nominees.

A fresh sponsorship would only be acceptable with a suitable offer of employment. It is noted that the previous job offer as a cleaning contractor has expired. However, as your brother is in Australia on a visit visa, he may be able to obtain a fresh job offer for the future. As you would be aware, he is not allowed to work while he has the status of a visitor. It is also essential that he and his family depart Australia at the expiration of their visit visas, because a fresh sponsorship can only be accepted for nominees who are outside Australia.

I attach a fresh sponsorship form and other documents for completion by you. These should be lodged with the Sponsorship Section of the Department in Sydney. Officers at that Office will also be in a position to counsel you on any questions which you may have in relation to the sponsorship or the possible renewal of your brother's visit visa. The lodgement of a fresh sponsorship based on changed circumstances will have the effect that there will be no need for the appeal to the Immigration Review Panel to proceed at present."

As the letter indicated, Mr and Mrs Faka'osi and their children were then visiting Australia, having been granted, upon arrival, temporary entry permits valid for three months. Those permits were endorsed "employment prohibited without written permission of an authorised officer". Although there is no evidence as to the details, it seems that there may have been some extension of those temporary entry permits.
Mrs Tapa'atoutai decided to accept the suggestions contained in the Department's letter of 6 December 1984. She did not pursue her application for review by the Immigration Review Panel. She took the sponsorship application form sent to her under cover of the letter to a solicitor, Gregory Dwyer, who was then practising at Dee Why. Mrs Tapa'atoutai handed Mr Dwyer the letters received by her from the Department. On 20 January 1985 Mr Dwyer assisted Mrs Tapa'atoutai to complete the form and promised to lodge it on her behalf with the Department. Despite the reference in the letter from the Department to the necessity for Mr and Mrs Faka'osi to leave Australia at the expiration of their visit visas, Mr Dwyer's recollection is that he told Mrs Tapa'atoutai that they could remain in Australia until such time as the application had been finalised. When giving evidence Mr Dwyer was unable to recall considering what was in the letter about this matter. He could not remember the basis of his belief that it was not necessary for the family to leave Australia except that, as he put the matter: "I expected there would be some further communication from the Department as a result of the sponsorship form being submitted, and up and until that was received that the matter was, to put it colloquially, 'on hold'".
According to a statutory declaration made by Mrs Tapa'atoutai in October 1988 and submitted to the Department, Mr Dwyer did not tell her that Mr Faka'osi had to go back to Tonga and she did not tell Mr Faka'osi that he should do this. In a statutory declaration made by him, Mr Faka'osi said that he was not told that he should return to Tonga whilst the application was being considered.
Unfortunately, Mr Dwyer did not immediately send the sponsorship application form to the Department. In evidence, he was unable to explain this omission. Mr Dwyer retired from the practice at Dee Why in January 1986 and took up a position at the College of Law. He heard no more about the matter until May 1986 when he received a call from his successor in the practice, Ian McDonell, who said that Mrs Tapa'atoutai had inquired about the progress of the application but that he had been unable to locate a file. Mr Dwyer then made a search of some papers which he had retained from the practice and he discovered the original, signed sponsorship application form. Mr Dwyer sent this form to the Department under cover of a letter dated 29 May 1986 which read as follows:

"I was previously a partner in the firm of J O Williams, Solicitors Dee Why, and was instructed in February 1985 in this matter. I retired from the firm in January 1986, and recently discovered correspondence dated 6.12.1984 (copy enclosed) and Sponsorship Application by OFAHEANGA TAPA'ATOUTAI

(enclosed). These documents were with certain personal research papers which I retained upon my retirement and had apparently been misfiled some time before.

I am not aware whether Mrs Tapa'atoutai has been in direct contact with your department and I have not been able to make further contact with her myself. I am no longer instructed in this matter and now enclose the documents for your attention. I am not aware whether this matter is still on foot and stress that the delay which has taken place in lodging these documents should in no way be attributed to the applicant."

Mr Dwyer informed Mr McDonell that the form had been lodged, but he did not say when this had occurred. Apparently neither Mr Dwyer nor Mrs Tapa'atoutai received any acknowledgement of this letter or of the submission of the application.

Mrs Tapa'atoutai did not make any inquiry of the Department. She expected that it would take some time for the application to be determined. According to her statutory declaration, she thought that the form which she had completed was an application for permanent residence. She said that Mr Dwyer had told her that "once this application was lodged my brother would have to wait a long time but would eventually be granted permanent residence". Mrs Tapa'atoutai said that she told this to her brother. Notwithstanding this, she said that, in the period 1986 to 1988, Mr Faka'osi asked her many times what was happening with his application for residence and, on each occasion, she told him not to worry, that the solicitor had lodged the form and that they would have a result eventually. It is possible that Mrs Tapa'atoutai's expectation of delay was fortified by knowledge of the content of a letter received in December 1986 by her sister, Mrs Lolita Kalosi, who had applied for resident status. That letter, acknowledging her application, contained the following passage:

"It may be some time before we are able to assess your application and we ask you not to make enquiries about the progress of your case. This will allow us to process all applications, including yours, in an orderly and efficient manner."

The evidence does not reveal what became of Mr Dwyer's letter of 29 May 1986 or of the enclosed sponsorship application form. The letter may have gone astray. The application seems never to have been considered within the Department.
The decisions under review
On 8 October 1988 Mr Faka'osi attended a Tongan dance at North Curl Curl. After he left the dance he walked to a nearby petrol station to catch a taxi home. In an affidavit read in this case, the accuracy of which was not challenged in any way, Mr Faka'osi described what then happened:

"3. Whilst I was waiting I witnessed a fight between two other people who had been at the Dance. I saw one person throw a rock at another who avoided the missile which then hit a taxi.

4. I then started to walk home to Brookvale. It is about two kilometres away.

5. The police came past me to the petrol station. I continued walking home. The police car then drove up to where I was. This was about fifty metres from the petrol station.

6. The police asked me where my passport was. They then arrested me. I was not charged with any offence. I did not commit any criminal offence. The incident I witnessed did not take place near a hotel.

7. I was subsequently delivered into the custody of the Department of Immigration, Local Government and Ethnic Affairs, where I remained until my release on 2nd December 1988."

Mr Faka'osi stated in his affidavit that he did not drink any alcohol on the night of 8 October 1988.

After his apprehension on 8 October 1988 Mr Faka'osi was taken to the Villawood Detention Centre. Mrs Faka'osi was contacted and directed to report regularly to the Chatswood office of the Department. Both Mr and Mrs Faka'osi were interviewed. During the course of her interview Mrs Faka'osi said that she held a Medicare card and that her elder two children were attending school in Australia. Letters were sent to both Mr and Mrs Faka'osi informing them of their liability to deportation.
On 18 October 1988 applications were made by both Mr and Mrs Faka'osi for the grant of resident status. These applications were supported, either at that time or in the ensuing few weeks, by a considerable volume of material. The supporting material included letters from, or statutory declarations made by, various family members, references from various persons testifying to Mr Faka'osi's good character and participation in church, school and choral activities, a letter from a company carrying on business at Brookvale confirming that Mr Faka'osi would be offered full-time employment by the company if his application for residence was successful and both a letter from, and a statutory declaration of, Mr Dwyer deposing as to his failure to submit the sponsorship application form. In the statutory declaration Mr Dwyer stated that he witnessed Mrs Tapa'atoutai's execution of the form on 20 January 1985 "and as I recollect the discussion at the time, we were of the belief that her brother could remain in Australia until such time as the application had been finalised". A copy of the completed form, dated 20 January 1985, was attached.
A major aspect of the case made by Mr and Mrs Faka'osi in their applications was the position of Mr Uikilifi, Mr Faka'osi's father. Mr Uikilifi was then aged 75 years and in poor health. Reference was made to the duty cast by Tongan custom on the son to look after a father in his old age. It appears from an affidavit sworn by Vikona Kavaefiafi Malakava, the hereditary teacher and repository of Tongan cultural lore, that the role of the son is of considerable importance in Tongan custom:

"5. Tongan lore decrees that the property of deceased parents passes to the eldest son of the family. No other children have any interest in the estate.

6. Women are described as 'lost children' once they are married as they are regarded as belonging to the family of their husband.

7. Any couple that does not have a male child in Tongan society is given a male child by the family of a relative. Traditional Tongan family life, the key to our culture, cannot function without a male heir. Such adoptions are effectively mandatory in the situation that no male child is born to a couple.

8. Tongan culture ensures that great shame attaches to any person or family (and succeeding generations of that person or family) should they fail to honour the sacred duty of a male child to care for his aged parents.

9. There are very strict restrictions on contact between male and female family members. Female daughters cannot wash their father; touch his body; do his laundry; serve his food; be in the same room as him without the presence of a male child; see his naked body or discuss important business such as money with him. They are forbidden from caring for him when he is sick.

10. It is implicit in Tongan culture that the eldest son of any family shall do everything within his power to look after his parents. This especially applies to his father who is dependent upon such a son for the services referred to in paragraph 9.

11. Any failure to observe the customs referred to in this affidavit is regarded with great seriousness by Tongans following Tongan custom. There is no doubt that such a person would be greatly distressed and shamed by such a breach."

On 3 November 1988 an officer of the Department, Mr R Robilliard, prepared a submission for the State Director, Tuong Quang Luu, in which he recommended that Mr Luu refuse the grant of resident status to Mr and Mrs Faka'osi and order their deportation. The submission contained a case history in which he set out particulars of their family and of the 1983 sponsorship application. He then went on:

"5. Since expiry of the last TEP granted to Mr and Mrs Fakaosi and their two Tongan born children no further entry permit has been granted to them. They are therefore prohibited non-citizen (sic) pursuant to sub-section 7(3) of the Act.

6. Mr and Mrs Fakaosi next came to the notice of this department on 8 October 1988 when Mr Fakaosi was located by NSW Police officers after having been involved in a fight at an hotel. He was arrested pursuant to section 38 of the Migration Act and is currently held at the Immigration Detention Centre at Villawood. Mrs Fakaosi was subsequently located and was directed to report on a regular basis to the departments (sic) Chatswood office."

Mr Robilliard then gave particulars as to the assembly of information by the Department, during the course of which he said that "it is claimed" that an application for sponsorship was prepared in January 1985 but not lodged until early 1986.

After identifying the evidence upon which the summarised facts were based, Mr Robilliard set out his assessment of the position. He stated that Mr and Mrs Faka'osi were prohibited non-citizens and that they had "breached undertakings given by all visitors that they would depart at the end of their authorised stay". He referred to the policy tabled by the Minister in Parliament on 17 October 1985 regarding illegal migrants, with particular reference to "queue-jumping". Mr Robilliard then turned to more detailed matters. He noted that Mr and Mrs Faka'osi had applied for the grant of resident status on strong compassionate or humanitarian grounds -- see s.6A(1)(e) of the Act -- that neither held a temporary entry permit but that it was open to the delegate to grant a temporary entry permit, thus permitting them to satisfy the first pre-condition to the grant of a permanent entry permit. Mr Robilliard went on:

"19. It has been submitted on Mr and Mrs Fakaosi's behalf that they have been disadvantaged by the failure of their previous legal representative to lodge a completed application for resident status on their behalf and that when the application was eventually lodged it was for sponsorship for Migration, not for the grant of permanent residence, as they claim they expected. You will note, however, that no application of any kind has been located amongst the departments

(sic) records, nor have Mr and Mrs Fakaosi or their legal representatives been able to provide evidence of it having been lodged. You will also be aware, upon examination of annexure 'C', that Mr Fakaosi's sister had been advised in 1984 that Mr and Mrs Fakaosi should lodge any further applications overseas and that they should depart Australia within the validity of their TEP's (sic). Your attention is also again drawn to Mr Fakaosi's comments at interview, annexure 'D' in which he said that he is not aware of any applications made to which he has not received a decision in writing. Mr Fakaosi has later claimed, in the application for resident status, that he did not clearly understand this question when it had been asked. Mr Fakaosi and his sister have claimed that they were not concerned at the delay in hearing from the department as they had put their trust in their legal representative. You may find this claim difficult to accept in light of the fact that neither Mr Fakaosi or his sister approached the department or their solicitor from January 1986 until Mr Fakaosi's arrest by NSW Police at a brawl in a hotel some two and a half years later.

20. Whilst you are invited to accept that there is a great deal of confusion surrounding the circumstances of Mr and Mrs Fakaosi's claim that an application was lodged on their behalf, you may conclude that these circumstances do not, in themselves, amount to strong compassionate or humanitarian circumstances within the meaning of section 6A(1)(e) of the Act."

Mr Robilliard then set out a number of factors raised by Mr and Mrs Faka'osi, or others on their behalf, in support of the grant of resident status to them. These factors included the health of Mr Uikilifi, and the place of Mr Faka'osi, as an only son, in caring for his father. Mr Robilliard also said that Mr Faka'osi "claims to have understood that a current application for him to remain in Australia was before the Department and still unresolved at the time of his location. Mr Faka'osi may also have harboured an expectation that it would be approved".
In para.22 of his submission Mr Robilliard set out factors which he thought weighed against the grant of resident status:

". they have become prohibited, non-citizens despite Mr Fakaosi's knowledge that they were permitted to remain for only three months on arrival;

. they have obtained Medicare benefits and the two older children, both prohibited non-citizens have attended school in Australia;

. they were located only after Mr Fakaosi's apprehension by NSW Police at a hotel brawl;

. it is not unreasonable to expect Mr Fakaosi's sisters to provide care for their ill father;

. Mr Fakaosi is not, as claimed, the last remaining relative not permitted to remain permanently in Australia as he has sisters resident in New Zealand; . Mrs Fakaosi also has a significant part of her immediate family in Tonga, who, although unable to provide much financial support, may be able to assist with Mr and Mrs Fakaosi's and their children's emotional and immediate physical needs; . Mr and Mrs Fakaosi's children are quite young and may, therefore, be able to adapt more readily to a change in their environment;"

After discussing the position of Mele, the youngest child who is an Australian citizen, Mr Robilliard canvassed the arguments against approving a voluntary departure of the family from Australia before setting out his recommendations against the grant of resident status or approval of voluntary departures and in favour of deportation orders against both Mr and Mrs Faka'osi.
Mr Robilliard's submission was considered by Mr J T Lynch, the Regional Director of the Northern Region of the Department. Mr Lynch concurred with Mr Robilliard's recommendations although, in a handwritten note on the submission, he said that he did so "not without some reservation". He said that, in particular, he was concerned with the following matters:

". the solicitor, Mr Greg Dwyer's 'oversight' in not lodging the sponsorship prior to May 1986. Mr Fakaosi must not be penalised for this. It is irrelevant.

. Mr Dwyer's belief, which was conveyed to Mr Fakaosi's sister, that Mr Fakaosi 'could remain in Australia until such time as the application had been finalised'.

. Mr Fakaosi's belief that, whilst that application was still extant, he was not illegally in Australia. . procedural fairness might require further time for the report commissioned from the expert on Tongan culture to be submitted by the new solicitor, Mr Will Stubbs. . the compassionate nature of this case may be enhanced by proper consideration of the expert's report. . one firm job offer would substantially improve the prospect of a successful sponsorship if Mr Fakaosi & family returned to Tonga."

The reference by Mr Lynch to the possible requirement of further time for the expert report arose out of an exchange which had occurred between officers of the Department and Mr Stubbs in connection with a report from one Rosetta Harea. Apparently Mr Robilliard had given Mr Stubbs until 31 October 1988 to forward any further material which he wished to submit in support of the applications. On that day Mr Stubbs had conversations with two officers, including Mr Robilliard, in which he indicated a wish for further time. Later that day Mr Stubbs faxed to the Northern Region office of the Department a letter purporting to confirm, and perhaps to elaborate upon, what he had said in the telephone conversations:

"I confirm that I have informed you that I am able to provide further information relevant to my clients (sic) application for permanent residence and the determination on whether he should be deported or not. I further confirm that Mr Williams has indicated that the Department would recommend to the State Director that permanent residence be refused and that a Deportation Order be made. This despite his refusal to entertain the further information which I have indicated would be available in the near future. 'Faka Tonga' or 'the Tongan Way' imposes strict tabu upon the extent to which a daughter can assist or care for a sick father. The primary responsibility for his care must fall to a male child under Tongan Custom. As the Department is aware Inoke is the only person who fulfills these criterion for 'carer' in relation to Mr Uikilifi, who is an Australian citizen.

It is necessary, in order to address this aspect of the humanitarian and compassionate considerations raised by this applicant that the Department take into account the impact upon Mr Uikilifi and the other members of this family of any decision to deport. The Department's officers making the recommendation in this matter have clearly not allowed sufficient time for the applicant to provide all relevant material. We have commissioned a report from a Melbourne expert in Tongan culture, Ms Rosetta Harea. She is not able to meet the deadline of 31st October,

1988. There has been no unavoidable delay on the part of Mr Faka'osi's representatives since we came into this matter on 14th October, 1988."

The submission prepared by Mr Robilliard was transmitted to Mr Luu. Mr Luu delayed his decision, at the request of Mr Stubbs, to allow the submission of additional information, especially relating to the effect upon Mele of any deportations and in connection with possible voluntary departures. On 28 November 1988 Mr Luu made his decisions upon Mr Robilliard's recommendations, adopting each of them. On that same day Mr Luu signed deportation orders against both Mr and Mrs Faka'osi and preparations were made for their early deportation from Australia.
The proceeding
On 1 December 1988 the present proceeding was commenced, when an Application was filed. The matter came before me that day, and again on the following day. Upon the latter day I accepted certain undertakings offered on behalf of the second and fourth applicants and made orders restraining the respondent from implementing the deportation orders before 5 pm on 8 December 1988 and for the release from custody of Mr Faka'osi. The matter was then stood over until 8 December 1988.
On 8 December 1988 counsel for the applicants sought orders under s.15 of the Administrative Decisions (Judicial Review) Act staying the implementation of the deportation orders until the final hearing of the proceeding or further order. After consideration of the considerable volume of evidence then available, including certain oral evidence, I granted that application.
By their Application, as amended on 31 March 1989, the applicants seek review of 11 decisions said to have been made on behalf of the respondent: the refusals of temporary entry permits to each of Mr and Mrs Faka'osi, the refusals of permanent entry permits to each person, the refusal of the opportunity of voluntary departure to each of Mr and Mrs Faka'osi, the two deportation decisions, the refusal of sponsorship in 1983, the refusal to consider the appeal to the Immigration Review Panel in 1984 and the decision to detain Mr Faka'osi during the period 28 November 1988 - 2 December 1988 pursuant to the deportation order made against him.
It appears to me that the application to review the 1983 and 1984 decisions is well out of time. Section 11(3)(b)(iii) of the Administrative Decisions (Judicial Review) Act would seem to apply to those decisions, with the result, in each case, that an application should have been made to the Court within 28 days of the relevant decision. If that understanding is incorrect, and there is no relevant period prescribed, I would apply s.11(4), holding that in neither case was the application made within a reasonable time after the decision was made.
The submissions of counsel for the applicants focus upon the decisions by Mr Luu to refuse to each of Mr and Mrs Faka'osi both temporary and permanent entry permits and to order their deportation. A short submission is put relating to the detention of Mr Faka'osi.
The decisions regarding refusal of the permits and the making of deportation orders may be considered together. Counsel ascribes to those decisions three separate legal vices: breach of the rules of natural justice (s.5(1)(a) of the Administrative Decisions (Judicial Review) Act), failure to take into account relevant considerations (s.5(2)(b)) and unreasonableness (s.5(2)(g)).
Natural justice
The complaint that the respondent denied to the applicants natural justice also has three aspects: the references to the "location" of Mr Faka'osi after his involvement in a fight in a hotel, the claimed use of Medicare and the failure of the Department to allow further time for the submission of information regarding Tongan culture.
In the submission prepared by Mr Robilliard there were no less than three references to a hotel brawl. In para.6 of the submission, set out above, Mr Robilliard stated that "Mr Fakaosi was located by NSW Police officers after having been involved in a fight at an hotel". In para.19, also quoted, Mr Robilliard suggested that Mr Luu might find it difficult to accept that Mr Faka'osi and Mrs Tapa'atoutai were not concerned at the delay in hearing from the Department in the light of the fact that neither of them approached either the Department or their solicitor from January 1986 "until Mr Fakaosi's arrest by NSW Police at a brawl in a hotel some two and a half years later". In para.22, amongst the factors against refusal of the applications for the grant of resident status selected by him Mr Robilliard referred to the fact that Mr and Mrs Faka'osi "were located only after Mr Fakaosi's apprehension by NSW Police at a hotel brawl".
These references contain two imputations unfavourable to one or both of Mr and Mrs Faka'osi. The word "located" suggests that, prior to the alleged hotel brawl, Mr and Mrs Faka'osi were "lost" to the Department, that is that they had changed their address without notifying the Department and with intent to avoid the consequences of their decisions to remain illegally in Australia. However, at all relevant times Mrs Tapa'atoutai had resided at 14 Dale Street, Brookvale. The Department had this address on its file in connection with the sponsorship application. Mr Uikilifi also lived at that address. From the time of their arrival in Australia until September 1988 Mr and Mrs Faka'osi also lived at that address, moving out only weeks before Mr Faka'osi was detained. But, even then, they moved to a flat nearby and visited Mrs Tapa'atoutai's house daily to care for Mr Uikilifi and Mrs Tapa'atoutai's children. Mr and Mrs Faka'osi were never "lost". The imputation conveyed by the word "located" was unjustified.
The language used by Mr Robilliard in respect of the alleged hotel brawl varied a little from one passage in the submission to another. But in para.6 Mr Robilliard gave as a fact to the decision-maker the information that Mr Faka'osi had been "involved in a fight" at a hotel. It is true that one may become an innocent victim of a hotel fight, being involved only in that sense, but Mr Robilliard impliedly excluded that possibility by referring in para.19 to Mr Faka'osi's arrest on that occasion. The clear imputation was that, at least on this occasion, Mr Faka'osi had behaved in an aggressive manner involving the commission of some offence against State law.
As is now undisputed, the fact is that Mr Faka'osi was never in a hotel on 8 October 1988. He was not involved in any fight or brawl. He was detained by the New South Wales Police, presumably as a result of some error of identity, but he was not "arrested" or "apprehended" at the brawl in the hotel, if there was one. Nor was he charged with any offence.
Each of the imputations to which I have referred amounted to an allegation of misconduct by one or both of Mr and Mrs Faka'osi. The imputations tended to negate the material they had submitted regarding their good character and community activities. Either of them, standing alone, was an imputation capable of influencing a reasonable decision-maker against granting the applications for permanent entry permits and in favour of ordering the deportation of both Mr and Mrs Faka'osi. Considered together, and thrice repeated, they were seriously prejudicial.
No notice of these allegations was given to Mr and Mrs Faka'osi. There was no reason why notice could not have been given. At the time of preparing his submission Mr Robilliard was in frequent contact with Mr Stubbs. He could readily have put the facts, as he understood them, to Mr Stubbs and have afforded to him the opportunity of making a reply. Mr Faka'osi was in custody and available for interview at any time. Mrs Faka'osi was, at the time, reporting regularly to the Department. But apparently no effort was made to check the facts or to seek an explanation of the alleged misconduct.

It is true that there is no evidence that Mr Luu was in fact influenced by the imputations to which I have referred. But it is not necessary for the applicants to show actual influence. Northrop J and I dealt with that matter in a passage in our joint reasons for judgment in Kioa v Minister for Immigration and Ethnic Affairs (1984) 4 FCR 40 at p 54, a passage which was expressly endorsed by Wilson J in the High Court decision of that case -- see (1985) 159 CLR at p 603 -- and which is consistent with what was said by Mason J at p 588 and Brennan J at p 629. The principle is that set out in Kanda v Government of Malaya (1962) AC 322 at p 337-338:

"... the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing."

The first point put by counsel in relation to natural justice is made out.
The second argument, on natural justice, depends upon the fact that Mr Robilliard asserted in para.22 of his submission that Mr and Mrs Faka'osi "have obtained Medicare benefits". Counsel submits that this statement suggests the obtaining of a benefit to which the family were not entitled, whereas there was no evidence that Medicare benefits had in fact been received. The only relevant information, counsel says, is that Mrs Faka'osi said that she had a Medicare card. The argument is that it could not be inferred from this that benefits had actually been obtained and, if such an assertion was to be made, some question ought to have been directed to Mrs Faka'osi about the matter.
But for one circumstance I would have thought the question whether or not the family had obtained benefits under Medicare was so trivial as to be inherently incapable of affecting the decisions which had to be made; so that, even if too much had been taken from Mrs Faka'osi's admission and an unwarranted assertion had been made without putting the matter properly to Mrs Faka'osi, no prejudice could have ensued. However, the one circumstance is that Mr Robilliard not only saw fit to mention the matter, but to place it near the top of his list of factors militating against the grant of permanent entry permits, second only to his reference to the status of Mr and Mrs Faka'osi as prohibited non-citizens. Although he made other comments, in endorsing Mr Robilliard's submission, Mr Lynch did not dissociate himself with, or discount the importance of, this factor. I must therefore assume that he also regarded it as significant. Mr Robilliard and Mr Lynch have a much greater knowledge than I can claim of the matters which are likely to be regarded as important by a delegate of the Minister. They saw the alleged Medicare benefits as being a negative factor in relation to the decisions which had to be made. It would be wrong for me, without the benefit of any evidence, to substitute my own view that no rational decision-maker would give it any weight.
The probability is that, if Mrs Faka'osi holds a Medicare card, she has at some stage used it to obtain benefits. Her youngest child was born in Australia and, with three young children, it would be remarkable if she has not required medical assistance during her four years residence here. But, presumably, the significance of the reference to the Medicare card is that Mrs Faka'osi has availed herself of benefits to which she knew that she was not entitled; in effect that she has been guilty of some misconduct which ought to be taken into account against her. Accordingly, the allegation should have been put to her in order to supply to her an opportunity of giving any available explanation.
The remaining natural justice point involves consideration of the course of telephone discussions and correspondence regarding the information to be supplied by Ms Harea. I accept that the dictates of natural justice normally will require the decision-maker to afford to an applicant for the exercise in his or her favour of a statutory discretion a reasonable opportunity to submit material relevant to the prospective decision. What will constitute a "reasonable" opportunity will vary from case to case, regard being had both to the nature of the case and the circumstances under which it has to be made. In the case of a decision having such profound consequences as one relating to the grant or refusal of resident status and the making of a deportation order, reasonableness will ordinarily require the decision-maker to allow such time as may be necessary for the affected person, acting with despatch, to obtain and to submit relevant information on those aspects of the case which might reasonably be thought to be germane to the decision which has to be made. In the present case, those aspects undoubtedly include the position of Mr Uikilifi; including the significance, to his care, of Tongan custom. But I am not persuaded that Mr Luu failed to allow a reasonable time for that purpose. An interval of seven weeks occurred between the time when Mr Faka'osi was taken into custody and the date when the deportation orders were signed. Despite Mr Robilliard's deadline of 31 October 1988, Mr Luu allowed Mr Stubbs to submit further material to him until the date of the ultimate decisions. There is no evidence to suggest that the relevant material could not have been obtained and submitted within this seven week period.
I uphold the submission that the decisions made by Mr Luu were invalid for failure to comply with the requirements of natural justice; but only as regards the references to "location" after Mr Faka'osi's involvement in a hotel brawl and to Medicare benefits, and not in relation to the submission of material from Ms Harea.
Failure to take account of relevant considerations
I turn to the second ground relied upon by counsel for the applicants: the alleged failure to take into account relevant considerations. Counsel relies upon several matters in relation to this ground.
The first matter raised by counsel relates to the sponsorship application made by Mrs Tapa'atoutai. This was referred to in Mr Robilliard's submission, but only by way of history. Counsel points out that no reference was made in the submission to the fact that the suggestion that Mrs Tapa'atoutai withdraw her application for review by the Immigration Review Panel had stemmed from a realisation within the Department that Mr Faka'osi had sufficient points for approval of a sponsorship application, so that an application disclosing a firm employment offer could be approved without the necessity of the matter going to the Panel. Nor, according to counsel, was an adequate reference made to the subsequent history of the sponsorship application. In para.10 of his submission Mr Robilliard said that, in the application for permanent residence made in October 1988, "it is claimed" that a sponsorship application was prepared in January 1985 but not lodged until early 1986. Counsel contrasts the words "it is claimed" with the formula used elsewhere in the submission, in relation to other matters, where Mr Robilliard wrote "it is claimed, and you are invited to accept"; the implication being, in the first case, that this was a mere claim not supported by credible evidence. Yet, counsel says, Mr Robilliard had before him not only a letter from Mr Dwyer but also a statutory declaration in which he set out a full history of the matter and a copy of the form itself. According to counsel, to speak of this merely as a "claim" -- as Mr Robilliard did not only in para.10 but also in para.20 -- was to fail adequately to deal with the facts.
It seems to me that there is much substance in the above criticisms. Their force is pointed up by the statement in para.19 that neither Mr and Mrs Faka'osi nor their legal representatives had "been able to provide evidence of it" (the sponsorship form) "having been lodged". Perhaps Mr Robilliard had in mind a receipt or other written acknowledgement; but a statutory declaration of the solicitor who lodged the form surely constitutes some evidence of its lodgement.
Upon a related matter counsel points to the reference to Mrs Tapa'atoutai's having been advised in 1984 that Mr and Mrs Faka'osi should lodge any further applications overseas and that they should depart Australia within the period of their temporary entry permits. It is true that Mrs Tapa'atoutai was so informed by letter, says counsel, but the evidence submitted by Mr and Mrs Faka'osi clearly showed that they had not been informed of this obligation. To refer to the letter to Mrs Tapa'atoutai without mentioning that the information was not passed on to Mr and Mrs Faka'osi was misleading.
Two other comments may be made in connection with the above matters. The first arises out of para.20, wherein Mr Robilliard stated that, despite the "great deal of confusion" surrounding the "claim" of the sponsorship application "you may conclude that these circumstances do not, in themselves, amount to strong compassionate or humanitarian circumstances" within s.6A(1)(e) of the Act. Leaving aside the point that the submitted material hardly left the situation in a state of confusion, it was never suggested on behalf of Mr and Mrs Faka'osi that the confusion itself constituted strong compassionate or humanitarian circumstances. The point of the earlier history was that Mr and Mrs Faka'osi had previously been in a position where they qualified for sponsorship and, but for the omission of Mr Dwyer, would very likely have long since obtained grants of permanent entry permits.
This leads me to the second point, Mr Lynch's comment that Mr Dwyer's oversight was "irrelevant". I appreciate that Mr Lynch was anxious that Mr and Mrs Faka'osi should not suffer from the oversight, but the oversight was not irrelevant. It was relevant to the argument that, despite the time which had elapsed since December 1984, their then position of entitlement should be taken into account. It is difficult to resist the conclusion that neither Mr Robilliard nor Mr Lynch really appreciated the strength of the argument that the present applications of Mr and Mrs Faka'osi should be assessed upon the basis that, but for a series of events for which they were not responsible, they would probably already have achieved resident status.
I accept the criticisms of counsel of the adequacy of the assessments of the case made by Mr Robilliard and Mr Lynch. But two matters must be considered in relation to the question whether these inadequacies vitiate the decisions made by Mr Luu.
The first matter is the effect, if any, upon this question of the decision of the Full Court of this Court in Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419. In particular, there is a question, in light of that decision, whether it is appropriate for the Court to uphold a challenge to the refusal of a grant of a permanent entry permit in a case in which the applicant lacks a temporary entry permit.
Maitan also concerned an application by a prohibited non-citizen for a permanent entry permit under paras.(d) and (e) of s.6A(1) of the Migration Act. Those paragraphs provide as follows:

"6A. (1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say: ...

(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen; or

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

When I heard Maitan, at first instance, the contest between the parties related entirely to that part of the delegate's decision which concerned the refusal of a permanent entry permit. In my reasons for judgment (not reported, 7 September 1987) I identified the issue in the case as being "the adequacy of the consideration, given by the delegate of the respondent ..., to an application made by the applicant for the grant to him of a permanent entry permit upon occupational grounds". There was no separate issue about the related refusal of the delegate to grant Mr Maitan a temporary entry permit. The case was fought upon the basis that, if the delegate had come to the conclusion that the case was one in which a permanent entry permit should be granted, he could have issued to Mr Maitan a temporary entry permit; and that, very likely, he would have done so. In so doing he would have enabled Mr Maitan to satisfy the initial requirement of both paras.(d) and (e) of s.6A(1). It was understandable that the parties proceeded on that basis, given the fact that the submission to the delegate in that case had included the routine reminder that, although the applicant lacked a temporary entry permit, the delegate was able to remedy this deficiency if he regarded the application for a permanent entry permit as having merit. In fact Mr Maitan had not even applied for a temporary entry permit; nonetheless the delegate approached his task upon the basis that such an application was, by implication, also before him.
No doubt it would have been open to the delegate, in Maitan, to have refused the implied application for a temporary entry permit and then, without going into its merits, to have refused the application for a permanent entry permit upon the ground that the applicant lacked a temporary entry permit. But the delegate did not take that course. Instead, he chose to regard the question whether this was a case in which a permanent entry permit ought to be granted as being relevant to the application for a temporary entry permit. He, therefore, considered the application for a permanent entry permit upon its merits. In so doing he followed the practice which is normally adopted by delegates. The reason for that practice, no doubt, is that for delegates to reject, at the threshhold, applications for permanent entry permits made by people in Australia who lack temporary entry permits, merely because of that deficiency, would be to reject many residence applications which ought, on merit, to be granted; and which, under present practice, are granted. Delegates have preferred to choose between meritorious and unmeritorious applicants in the context of looking at the application for permanent residence; and, in relation to those thought to have merit, to cure the outstanding formal difficulty by issuing to them, and only to them, temporary entry permits.
Having regard to these matters, I regard as curious the course taken on behalf of the Minister when my decision went on appeal to the Full Court. It seems from the various reasons for judgment that a totally different argument was then put on behalf of the Minister; one which placed major emphasis upon the decision relating to the temporary entry permit. This argument led Beaumont and Gummow JJ to dispose of the appeal merely be reference to the temporary entry permit. Their Honours held that the scope of the matters relevant to be considered in connection with a temporary entry permit was unconfined except by the general scope and purpose of the Act, and that it had not been shown that, in refusing the temporary entry permit, the delegate had failed to take into account any matter which he was bound to consider in relation to a temporary entry permit. As Mr Maitan lacked a temporary entry permit, Beaumont and Gummow JJ thought it unnecessary to consider whether the delegate had failed to take into account matters relevant to the grant of a permanent entry permit: see pp 427-428. Fox J shared this approach, although his Honour did add some comments which indicate that he would, in any event, have held to be valid the decision refusing a permanent entry permit. His Honour's reasoning was set out at p 423:

"It is plain that permanent residence cannot be granted unless the applicant is first the holder of a temporary entry permit. As I have already said it seems to be the practice that, if permanent residence is justified, a temporary entry permit will be granted and so far as para.(d) of s.6A(1) is concerned the provisions of sub-s.(7) can be satisfied. The fact is, however, that attention must first be directed to the grant of the temporary entry permit. This is a matter that seems wholly discretionary, in the sense that there are no statutory guidelines. There are of course broad limits to the exercise of the discretion, but it is unnecessary to discuss these."

I do not disagree with the analysis of the provisions of ss.6, 6A and 7 of the Act made in Maitan by Beaumont and Gummow JJ at pp 425-426, nor with their Honour's view that the discretion to grant or to refuse a temporary entry permit is unconfined except by the scope and purpose of the Act. I agree that the delegate is not bound to take into account occupational factors in connection with a temporary entry permit. But I do respectfully disagree with their Honours' further view that, because of these matters, the validity of the delegate's decision concerning the application for a permanent entry permit was immaterial. There being two separate applications before the delegate, the validity of the decision regarding one application could only be immaterial if it could not affect the decision relating to the other application. But it was plain, in Maitan, that the decision on the application for a permanent entry permit did directly affect the decision on the temporary entry permit. This is consistent with what generally occurs. The effect of the practice routinely adopted by delegates is that the decision relating to the permanent entry permit controls that relating to the temporary entry permit.
The Full Court decision in Maitan stands normal practice on its head. It places all the emphasis upon the temporary entry permit, treating as irrelevant any error of law relating to the application for a permanent entry permit; and even though the delegate, as in Maitan, may have treated the decision upon the permanent entry permit as critical to the decision on the application for a temporary entry permit.
As a matter of legal theory, it may be possible for a delegate to make a valid decision to refuse a temporary entry permit even to a person who has just been adjudged as otherwise entitled to the grant of a permanent entry permit. This is a matter about which I prefer to express no final opinion; a question of unreasonableness may arise. But whether or not that is so, it appears to me to be incontestable that such a judgment is a relevant consideration in connection with the application for a temporary entry permit; and, as I have pointed out, in practice it is regarded as critical to the determination of such an application. Consequently, it is a matter of real importance to a person in the position of Mr Maitan to obtain review of the decision relating to permanent residence. If the Court deprives such a person of that review, the Court also deprives the person of any chance of obtaining a reversal of the refusal of a temporary entry permit, and, so, of remaining in Australia. From the public point of view, the Court introduces a disconformity between the practice applied, on a day-to-day basis, in the majority of cases and that followed in the handful of cases which reach the Court. A situation in which a person seeking review is confronted with arguments on behalf of the original decision-maker which are at odds with the approach habitually taken by that decision-maker raises serious issues as to fairness and discredits the review process.

Notwithstanding the criticisms which I have made of Maitan, the decision is one of a Full Court. The ratio decidendi of the decision is binding upon me. But the ratio decidendi is confined to the question of the ambit of matters material for consideration in connection with a temporary entry permit. Although Beaumont and Gummow JJ thought it unnecessary to deal with the validity of the decision regarding the permanent entry permit, they did not hold that a Judge who is confronted with applications to review refusals of both permanent and temporary entry permits ought not to do so, as a matter of law. Accordingly, I am free to follow my own view that, as the validity of Mr Luu's decision regarding the applications by Mr and Mrs Faka'osi for permanent entry permits remains a matter of moment to them, it is appropriate for me to consider whether the applicants have made out their contention that Mr Luu failed to consider all of the circumstances relevant to those applications.
I have already indicated my opinion that there is much force in the criticisms made by counsel of the adequacy of Mr Robilliard's assessment of the case. But it is necessary to bear in mind that Mr Robilliard attached to the submission a number of documents. If Mr Luu read those attachments before arriving at his decision, he would have been made aware of the whole of the facts they set out. In Maitan I took the view that it was unlikely that a busy person such as Mr Luu, provided with a submission which purported to summarize all of the relevant material, would have read through all of the attached materisl, especially as there was no evidence to that effect. Fox J thought that this scepticism was unjustified and I accept and apply his Honour's view. Consequently, I hold that the submissions as to failure to take into account relevant considerations must fail, insofar as they relate to matters revealed by the attachments to the submission.
There is, however, one matter referred to by counsel which appears not to have been disclosed by the attachments. I refer to the reassessment of the sponsorship application, in November- December 1984, at 61 points and the connection between that reassessment and the withdrawal of Mrs Tapa'atoutai's application for review by the Immigration Review Panel. Mr Robilliard attached to his submission, as attachment"A", what he described as "sponsorship for Mr and Mrs Fakaosi's entry to Australia, assessment and advice to Mr and Mrs Fakaosi of the decision". But the assessment referred to was obviously the initial, unfavourable assessment. Annexure "C" to the submission was the letter of 6 December 1984 to Mrs Tapa'atoutai suggesting the lodgment of a fresh sponsorship application, but this letter contains no reference to the fact of the reassessment or to Mr Faka'osi's having scored 61 points on that reassessment. None of the attachments to the submission would have informed Mr Luu of the fact of the reassessment or of the relationship between that reassessment and the advice to Mrs Tapa'atoutai to withdraw her application to the Immigration Review Panel. Yet this material was relevant to the question whether Mr and Mrs Faka'osi had made out strong compassionate or humanitarian grounds. The case put on behalf of the applicants pursuant to s.5(2)(b) of the Administrative Decisions (Judicial Review) Act is established.
Unreasonableness
Counsel's submission that Mr Luu's decisions were invalid upon the grounds of unreasonableness -- that is, in the language of s.5(2)(g) of the Administrative Decisions (Judicial Review) Act, that they constituted "an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power" -- was not developed at any length. In my opinion it is not sustainable.
In numerous cases the comment has been made that unreasonableness, in this sense, is a difficult ground to establish. Probably the ground has its most frequent application in cases in which the challenger can demonstrate an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker's own criteria. Parramatta City Council v Pestell (1972) 128 CLR 305 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 constitute examples of this type of case. There may be cases -- although I think that they are likely to be rare -- in which all of the factors germane to a particular decision point in one direction. If such a case arose, it would seem proper to brand as unreasonable a decision to the contrary effect. But ordinarily there will be factors pointing in each direction. Where that is the situation, the weight of those factors is a matter for evaluation by the decision-maker. In such a case, even though a particular judge might feel that the preferable decision would have been otherwise, that feeling would not be sufficient to justify the condemnation of the decision as unreasonable, in the relevant sense. As Menzies J said in Pestell at p 323:

"There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible -- it is right. The validity of a local rule does not depend upon the soundness of a council's opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court."

In the present case there were considerations pointing in each direction in relation to the decisions facing Mr Luu. Notwithstanding the obvious weight of the considerations favouring decisions to the opposite effect of those made, it cannot be said that the decisions which were made were so unreasonable that no reasonable person could have made them.
The detention of Mr Faka'osi
Mr Faka'osi was taken into custody on the evening of 8 October 1988, in the circumstances set out above. Section 38 of the Migration Act authorises an "officer" -- a term which is defined by s.5 in such a matter as to include a member of a State Police Force -- without warrant to arrest a person whom he or she reasonably supposes to be a prohibited non-citizen. Such a person may then be kept in custody, subject to the obligation of the custodian to take the person before a "prescribed authority", usually a magistrate.
Section 38 (6) provides:

"(6) If, while a person is in custody under this section, an officer informs that person ... that a deportation order is in force in relation to him, the preceding provisions of this section cease to apply in relation to that person and he shall be deemed to have been thereupon arrested under section 39 by the officer having his custody or, if he is not in the custody of an officer, by the officer who so informs him."

In the case of Mr Faka'osi a deportation order was signed on 28 November 1988. It seems that Mr Faka'osi was promptly informed of the decision; presumably, by an officer of the Department, a person who would be an "officer" within the meaning of s.38. At the time when he was so informed, s.38 ceased to apply in relation to Mr Faka'osi, his continued detention being justified (if at all) by s.39.
Section 39 relevantly provides:

"39. (1) Where an order for the deportation of a person is in force, an officer may, without warrant, arrest a person whom he reasonably supposes to be that person, and a person so arrested may, subject to this section, be kept in custody as a deportee in accordance with sub-section (6).

(2) Where an officer arrests a person in accordance with this section, the officer shall forthwith inform the person arrested of the reason for the arrest and shall, if that person so requests, furnish to him, as soon as practicable, particulars of the deportation order.

(3) ...

(3A) ...

(4) ...

(5) ...

(6) A deportee may be kept in such custody as the Minister or an officer directs--

(a) pending deportation, until he is placed on board a vessel for deportation;

(b) at any port or place in Australia at which the vessel calls after he has been placed on board; or

(c) on board the vessel until her departure from her last port or place of call in Australia.

(7) Notwithstanding anything contained in this section, an authorized officer may at any time order the release of a person who is in custody under this section.

(8) Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from custody of a person held in custody under this section where the Court finds that there is no valid deportation order in force in relation to that person."

The opening words of s.39 are critical to the application of the section. Those words make both the power to arrest and the power to detain in custody conditional upon the existence "in force" of a deportation order. There must, in other words, be a valid and current deportation order applicable to that person. In the present case I have held that the decision of Mr Luu to make a deportation order against Mr Faka'osi was affected by two vices: non-observance of the requirements of natural justice and failure to take into account certain relevant circumstances. In consequence the deportation order is invalid and should be set aside. But does this mean that the detention of Mr Faka'osi pursuant to the purported deportation order was unauthorised?
I think that it does. In Wattmaster Alco Pty Limited v Button (1986) 13 FCR 253 at pp 257-258, Sheppard J and I referred to the leading authorities upon the effect of a decision pending a determination of its invalidity by a court. After referring to the variation in terminology which is a feature of this area of the law, we concluded:

"In the end the label does not matter. A decision made in purported exercise of a statutory discretion, but which is affected by a relevant irregularity, will normally be treated as valid until successfully impugned by an appropriate plaintiff; but once the decision is held to be bad in law it will be treated as being invalid, at least insofar as substantive rights are concerned, as from the date upon which it was made."

The application of this principle to the present case means that, the deportation order being invalid, the detention of Mr Faka'osi pursuant to that order was unlawful. The applicants are entitled to a declaration accordingly.
The respondent must pay the applicants' costs of the proceeding.

[1989] FCA 175

28 APRIL 1989