Unlugenc v Minister for Immigration and Ethnic Affairs
[1982] FCA 183
•13 August 1982
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G134 of 1982
Immigration - Administrative Law - Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LOCKHART J.
Immigration - prohibited immigrant - decision of Minister to deport - deportee held in custody pending deportation.Administrative Law - application for release from custody pending final determination of application for an order of review - discretion of Court - matters to be considered - policy of Migration Act.
Federal Court of Australia - source and nature of power to grant interlocutory injunctions to release deportee from custody.
Administrative Decisions (Judicial Review) Act 1977 ss. 5, 13
Migration Act 1958 ss. 6, 38, 39
Federal Court of Australia Act 1976 ss. 19, 23.
SYDNEY
#DATE 13:8:1982
Upon the respondent by his counsel undertaking to the Court that the deportation order made by him against the applicant on 23 July 1982 will not be executed pending the determination of this application for an order of review without first giving to the applicant 48 hours notice in writing1. The appliction be dismissed.
2. Costs of the application are reserved.
3. Either party is at liberty to apply generally on two days' notice.
In this matter I propose to give judgment now as I have a firm view as to the outcome. I have been assisted in taking this course by the helpful arguments of counsel.
Ali Unlugenc ("the applicant") filed an application in this Court on 4 August 1982 seeking various orders including an order that a deportation order made against him on 23 July 1982 by the Minister for Immigration and Ethnic Affairs ("the respondent") be revoked. The application is made under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act").
On 4 August 1982 the applicant sought a statement from the respondent, pursuant to s. 13 of the Judicial Review Act, of his reasons for the decision to deport the applicant. That statement has not yet been given. The applicant says that he will need time to consider those reasons when they are given and their relevance to his case. Hence counsel for the applicant told me that his client will probably need at least two months from now before his case can be properly prepared and presented.
In the meantime, the applicant is being held in custody at the Villawood Detention Centre, where he has been since 18 June 1982 when he was arrested by an officer of the Department of Immigration and Ethnic Affairs ("the Department"). The respondent says that the applicant's arrest was made on the basis that the relevant officer had reasonable grounds for supposing the applicant to be a prohibited immigrant (Migration Act 1958, s. 38).
The applicant seeks today an order that the respondent be restrained from detaining the applicant or causing him to be detained pending final determination of his application for an order of review under the Judicial Review Act. The respondent opposes that application.
The facts may be briefly stated. The applicant is 22 years of age. He is a Turkish national who entered Australia for the first time on 31 December 1980 at Sydney. He was then granted a temporary entry permit to remain in Australia for one month. Pursuant to an application made by him on 28 January 1981 the applicant was granted a second temporary entry permit on 11 February 1981 authorising him to remain in Australia until 1 April 1981. No further entry permit has since been granted to the applicant.
The applicant married an Australian citizen on 21 March 1981. On 23 March 1981 the applicant and his wife made what is described in the evidence as an application for resident status on the ground of his marriage some two days earlier. The applicant heard nothing from the Department about his application until his arrest on 18 June 1982.
On 25 June 1982, whilst in custody, he received a letter from the Department informing him that his applicant for resident status 'was not one for approval', which I take it is the form adopted by the Department for saying that the application was refused. It is common ground that the application for resident status answers the description of an application for an entry permit other than a temporary permit under sub-s. 6 (2A) and (5) of the Migration Act.
On 29 June 1982, the applicant's sister, who lives in Australia with her husband, made a request for review of the Department's refusal of the applicant's application for resident status. On 12 July 1982, representations were made on behalf of the applicant to the respondent by the applicant's solicitor in support of the request for review. On 8 July 1982, the Immigration Review Panel considered this request and recommended to the Minister that 'The departmental decision to refuse permanent residence be maintained'. The Minister accepted that recommendation and signed the deportation order.
On 26 July 1982, the applicant's sister was informed by the department that her request for the review had been refused.
It is common ground that the Court has power to make the order sought by the applicant namely, that the respondent be restrained from detaining the applicant pending final determination of his application for an order of review. Mr. Justice Northrop considered a similar application in Piroglu v. The Honourable Ian Macphee, Minister of State for Immigration and Ethnic Affairs and The Commonwealth of Australia, unreported 18 June 1981. His Honour held that this Court has power to make interlocutory injunctions requiring the Minister to release an applicant from custody pending the hearing and determination of his application for an order of review. His Honour held that the source of that power is to be found in ss. 19 and 23 of the Federal Court of Australia Act 1976.
Section 23 empowers the Court, in relation to matters in which it has jurisdiction, to make orders of such kinds as the Court thinks appropriate including interlocutory orders.
I agree with his Honour's view. I would add for myself that I see nothing inconsistent with this view and the provisions of ss. 38 and 39 of the Migration Act. Nor was it suggested in argument before me that there was any such inconsistency.
Mr. Justice Northrop went on to say that the principles to be applied in deciding cases of this kind are those enunciated in Beecham Group Limited v. Bristol Laboratories Pty. Limited (1968) 118 C.L.R. 618. Counsel for the applicant accepted this approach and proceeded to argue that a prima facie case for an order of review had been established in the present case and that the balance of convenience lay in favour of granting the injunction sought.
His argument may be briefly summarised. The applicant is a person aggrieved by the respondent's order to deport him from Australia. There should be an order of review on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the deportation order _ Judicial Review Act, para. 5 (1) (a);
(b) that the making of the deportation order was an improper exercise of the power conferred by the Migration Act _ para 5 (1) (e);
(c) that the deportation order involved an error of law _ para. 5(1) (f); and
(d) that there was no evidence or other material to justify the making of the deportation order _ para. 5 (1) (h).
As to the argument that a breach of natural justice occurred in connection with the making of the decision to deport the applicant, counsel for the applicant submitted that in all the circumstances, the applicant had a 'legitimate expectation' of being granted an entry permit, otherwise than a temporary entry permit, following the application made just after his marriage. He submitted that he was entitled to be heard before the respondent made his decision to deport him and that the failure of the respondent to hear him constituted a denial of natural justice. As to 'legitimate expectation', see R. v. Mackellar; ex parte Ratu & Anor (1977) 137 C.L.R. 461 (at pp. 478 and 479) and Salemi v. Mackellar (No.2) (1977) 137 C.L.R. 396 (at pp. 404 to 406).
The applicant's right to be heard is said to arise in particular from para. 6A (1) (b) of the Migration Act which provides that:
'6A (1) An entry permit shall not be granted to an immigrant after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -...
(b) he is the spouse, child or aged parent of an Australian citizen ...'
The applicant submitted that as he was the spouse of an Australian citizen he was entitled to an entry permit as of right. He submitted alternatively that, if the grant of an entry permit was discretionary and if para. 6A (1) (b) merely defined the conditions which had to be satisfied before the respondent would consider the grant of such a permit, this reinforced his 'legitimate expectation' of being granted an entry permit, especially as some 14 months elapsed after he applied for the permit and before he was arrested.
It was submitted that the making of the decision to deport the applicant was an improper exercise of the power to deport. First, the respondent took an irrelevant consideration into account in the exercise of the power (Judicial Review Act, para. 5 (2) (a)), namely a departmental submission that the marriage of the applicant and his wife was contrived for the purpose of enhancing the applicant's chances of staying in Australia. Second, the respondent failed to take a relevant consideration into account in the exercise of the power (Judicial Review Act, para. 5 (2) (b) ), namely the fact that the brother-in-law of the applicant was interviewed by officers of the department. Questions were asked as to many matters including the applicant's whereabouts, and the circumstances of his marriage and as to whether he was cohabiting with his wife. The applicant's brother-in-law said that he provided those officers with full particulars of all of the relevant facts, but was not asked to sign a statement at any time. Yet, it is said, none of those facts were taken into account by the Minister. Third, the respondent exercised his discretion in bad faith (Judicial Review Act, para. 5 (2) (d) ). Little was said in support of this and I will not dwell further on it. Fourth, the decision to deport the applicant involved an error of law (Judicial Review Act, para 5 (1) (f) ) in that the decision assumed that the respondent had a discretion to refuse an entry permit nothwithstanding that the applicant had married an Australian citizen. This argument, which I referred to earlier, rests on the assumption that once any one of the conditions specified in sub-s. 6A (1) of the Migration Act is satisfied, the respondent is bound to grant an entry permit.
Then there was a general submission that there was no evidence or other material to justify the making of the decision. Little was said in support of this submission save to the extent that the other submissions related to it.
I must confess to having reservations as to the correctness of the proposition that the principles expounded in Beecham relating to the granting of interlocutory injunctions apply to applications like the present, where the applicant seeks an order that he be released from custody pending the determination of his application for an order of review under the Judicial Review Act. However, I do not find it necessary to resolve the question because I propose to decide this application before me on the assumption that a prima facie case in the sense referred to in Beecham and other judgments since then has been made out. This does not mean that I think a prima facie case has been established. It seems to me that, whether there is a prima facie case or not, the application falls to be determined on discretionary grounds.
The applicant is a prohibited immigrant. He is thus deemed to be guilty of an offence against the Migration Act (para. 27 (1) (ab)). He remains in Australia without lawful authority. He is liable to arrest and detention. He has no right to remain in this country. He is an illegal immigrant: R. v. Forbes and Anor; Ex parte Kwok Kwan Lee (1971) 124 C.L.R. 168. As Mason J. said in R. v. Mackellar; Ex parte Ratu (supra) (at pp. 478-479):-
'The making of a deportation order under s. 18 therefore provides lawful authority for the removal from Australia against his will of a person who has no right to remain here. It is not the case that the order terminates his right to remain; nor can it be said in the ordinary case that it deprives him of a legitimate expectation that he will be allowed to remain here. Deportation, for which the order provides, is then but a consequence of the prohibited immigrant's failure to depart when he has no right to remain.'
I agree with the view expressed by Northrop J. in Piroglu:-
'The policy of the Migration Act is clear. Prohibited immigrants should not be left at large in the community pending deportation unless the Minister or an authorized officer exercises his discretion in accordance with s. 39...in my opinion there is a real danger that the applicant, if released from custody, would merge in the community and seek to become absorbed into the community. I consider this type of case to be very different from the normal 'bail' case. In those cases a person has been arrested and charged with a criminal offence but has not been convicted. He is being held in custody pending trial and, prima facie, is entitled to bail. In the present case the applicant has not been charged with any criminal offence. He is a prohibited immigrant and under the Migration Act prima facie should be held in custody. Time limits are imposed by s. 38 of the Migration Act and once a deportation order has been made a deportee, prima facie, should be held in custody until deported, s. 39 Migration Act. The Court should not interfere with that policy except in exceptional circumstances.'
The applicant's conduct since he arrived in Australia on 31 December 1980 together with lies which he told officers of the Department satisfy me that there is a real danger that if released from custody he would disappear and seek to become absorbed into the community. The applicant made a statutory declaration on 9 June 1982 in support of his solicitor's submission to the respondent that the applicant should be granted an entry permit.
For about three months after his arrival in Australia the applicant lived with his sister and brother-in-law at their home in Auburn. He first met his future wife Kathleen on the second or third day after his arrival in Australia. Thereafter he saw her often and married her on 21 March 1981. He was then aged 21 and she was aged 31. It seems that Kathleen, although formerly a member of the Roman Catholic faith, renounced that faith and adopted the Islamic religion before the applicant arrived in Australia. The applicant swore:-
'During the two weeks I lived with Kathleen, I saw her change from a happy girl to a drug addicted person. I was aware, prior to our marriage, that she was taking some medication but I never imagined that she was abusing her body and sanity by over doses of prescribed medication. Many times she was unconsious (sic) for long periods of time. I tried to help her physically as well as giving her mental support. I also tried to reason with her and hoping that by reasoning with her, I would be able to help her overcome her addiction problem. I was in great disbelief and very sad and upset with Kathleen's situation. I could not handle watching Kathleen being sick and unconsious (sic) and nonetheless continuing with her drug addiction. I never told anyone about Kathleen's problem. In particular, I was careful to hide that fact from my sister and brother-in-law and Vicki and Latif. In the end, I was so depressed I had to run away from it all. I took my clothes and personal belongings from Kathleen's flat and left."
There is abundant evidence before me to cast grave doubt on the truthfulness of much of what the applicant says in his statutory declaration. There is a deal of evidence to support the conclusion that when the applicant married his wife he knew that she was addicted to drugs, and that he married her to enhance his prospect of remaining in Australia, so that he could then assert that he was married to an Australian citizen. On any view of the facts, it was a whirlwind courtship. Even on his own case, he only remained with his wife for two weeks after their marriage. Indeed, there is a body of evidence that the applicant and his wife never lived together as man and wife at any time. The respondent plainly came to the conclusion that the marriage of the applicant was not genuine in the sense that it was merely entered into to better the applicant's chances of remaining in Australia.
In Safadi v. Minister for Immigration and Ethnic Affairs (1981) 38 A.L.R. 399 Franki J. said (at p. 403):-
'In my opinion it was open to the Minister to decide that the marriage of the applicant was genuine or was merely to seek to obtain a benefit possibly available to him as a result of the marriage. In either case it was open to the Minister to exercise his discretion in favour of deportation.'
I agree with Franki J. that the circumstances surrounding the marriage in Australia of a person against whom a deportation order has been made may be considered by the respondent in deciding whether to deport that person.
I turn to a different matter. When interviewed by the officers of the Department, probably after his arrest, the applicant admittedly lied to them. He told them that he and his wife were then living together. This was untrue. It concerned matters of considerable importance to the respondent in deciding whether the applicant should remain in Australia or not. I do not have any confidence that the applicant, if released from custody, would observe any conditions that may be imposed as a term of his release. I reach this conclusion notwithstanding the evidence of the applicant's sister and his brother-in-law that, if the applicant is released from custody, they will do everything within their power to ensure that he complies with any conditions attaching to his release and will allow him to live with them and work for them in their business.
The period during which the applicant will be in custody will not be excessive. He is not being held in gaol with criminals. The evidence is that the Villawood Detention Centre is operated by the Department and that all the detainees are prohibited immigrants _ men, women and children. There is reasonable freedom of movement within the Centre. The people staying there seem to be, on the evidence, reasonably well looked after.
I am satisfied that the application for release from custody should be refused.
Before the commencement of the hearing of this application, the respondent told the applicant that he would not execute the deportation order without 48 hours prior notice to him. The respondent has offered to given an undertaking to the Court to the same effect. I do not think in all the circumstances of this case that any larger undertaking is called for at this stage.
Upon the respondent by his counsel undertaking to the court that the deportation order made by him against the applicant on 23 July 1982 will not be executed pending the determination of this application for an order of review without first giving to the applicant 48 hours notice in writing, the applicant's application for an order that the respondent be restrained from detaining the applicant or causing him to be detained pending final determination of the application or order of review is dismissed. Either party is at liberty to apply generally on two days' notice. I reserve the costs of this application.
3
0
0