Vazouez, F. v Minister of Immigration Local Government & Ethnic Affairs

[1991] FCA 133

-	IN THE FEDERAL COURT OF AUSTRALIA)
NEW SOUTH WALES DISTRICT REGISTRY) NO. G 606 of 1990
GENERAL DIVISION 1

Between: FRANCESCO VAZOUEZ

Applicant

and: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT & ETHNIC AFFAIRS

First respondent

RECEIVED	SECRETARY, DEPARTMENT OF I M M I G R A T I O N L O C A L
FEDERAL COURT OF

AUSTRALIA	GOVERNMENT 5 ETHNIC AFFAIRS
PRINCIPAL
REGISTRY	Second respondent COMMONWEALTH OF AUSTRALIA Third respondent

EX TEMPORE JUDGMENT

Einfeld J Svdney 18 Februarv 1991

This is an application which involves very great urgency. The time is now 5.15 pm on Monday 18 February. I am informed that at 1.30 pm today a Qantas aircraft left for Singapore carrying the applicant. His legal representatives are now before the Court seeking orders for his return to Australia when the flight lands in Singapore in a few hours time, at the expense of the Commonwealth. This would enable him to present to the Court an application for an order of review of what is asserted to be a decision of the Minister, apparently taken within the last several days, that a deportation order made on

14 November 1988 be affirmed or not revoked.
The applicant's lawyers were originally before the Court	! l ~
earlier in the day, seeking orders that would prevent the	1 ;
respondents from deporting the applicant from Australia on the	1 :
Qantas flight but I was told that the flight was too advanced in its preparations to depart. I was informed then that the applicant's removal from the aircraft was impossible in practical terms. As the inquiry was first made more than half an hour before expected departure, I find it difficult to believe that satisfactory arrangements could not have been made if the will was there. There was no application by the applicant's legal representatives for orders against Qantas. What evidence there was suggested that once the aircraft's doors were locked, there was nothing the respondents could do to have the applicant removed. Hence orders against them
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would have been futile. Because of a lack of evidence of the	l= I
safety implications, I could not have considered and was not
asked to make orders against air traffic controllers.	1
Now the applicant seeks urgent interlocutory relief and some
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draft orders have been presented. These seek orders that the

respondents, separately or together, take steps to ensure that	jj
the applicant is permitted to stay in Singapore for sufficient
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time to obtain a flight back from Singapore to Sydney; that an	I
air ticket be purchased at public expense so that thls could take place; that the applicant be permitted to enter Australia at Sydney airport, notw~thstanding his lack of an entry permit; and that he be held in custody under the control of the respondents after his arrival. There is also a proposed
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interlocutory order that the respondents do everything they can to ensure that the applicant is not returned to Cuba.
The applicant is in form also seeking an order restraining the execution of the deportation order and an order that the deportation order be set aside. I have some difficulties with those two concepts. The deportation order has already been executed. Because leave would be needed to attack the deportation order itself, having regard to the delay, at most this case can only involve an application to revlew the decision to affirm or not to revoke the deportation order.
All this has made the circumstances of this case remarkably complex for what should have been a fairly straight-forward matter. As the time is short and the matter has been previously before the Administrative Appeals Tribunal (the Tribunal) in 1989 for an adjudication on the evidence and before Davies J on 18 December 1990, I will not attempt now to state the facts in any detail. It will suffice to observe
that the applicant has had resident status in Australia for a	number of years, going back into the mid 1980s. He appears to
have gained this status as a result of having come here by transfer from the United States, to whlch he went or fled as a political refugee from Cuba.
In Australia over a number of years the applicant committed a number of assaults or malicious injuries, most often on women. As a consequence he served some two years in prison, following
conviction in 1987 on 14 counts of assault or malicious

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in jury. ~t or near the conclusion of his term of 1 .

imprisonment, the first respondent, the Minister for	i ~
Immigration, resolved to revoke his residency status and order
his deportation to Cuba. This was the order made on 14
November 1988 to which I have earlier referred. The applicant
thereafter remained in prison for more than a further two	1;-
years. During this time the department was apparently
considering other places to which he could be deported than	I ' I
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Cuba. Someone could have travelled several times to every country in the world in the time taken to "consider" this	1 . I
matter. It appears clear that either the applicant was forgotten or the department, while making some inquiries, sat
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back hoping for something to crop up.	It really is quite	I	~
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unconscionable that he should have been kept in prison in

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Australia for so long in such circumstances. An application	i
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for hls release must surely have been successful long ago.	i ;
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It appears that the Minister or representatives of the	1 >:

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Minister have been approached several times about the status	1.~~
of the decision-making concerning the applicant. Most recently, on 4 October 1990 the applicant's solicitor wrote to
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the Minister about the position and was told in reply by a	I
letter of the following day from the senior private secretary:	1:

The Minister has not yet made a decision on the question of revoking the deportation order made in respect of Mr Vazquez. He has instructed his Department to re-examine all other options as a matter of priority. This is now being done and I will inform you of the outcome of this re-examination and the Minister's decision as soon as possible.

The fact that the instructions to give priority to "other options", meaning another possible home for the applicant were given on 5 October appears to indicate that the letter of the applicant's solicitor of 4 October, which was sent by facsimile, was the factor which activated this first appearance of the need for any urgency in M r Vazquez' case. The concept of "re-examination" is significant. The applicant had been in administrative non-judicial detention for about 23 months at this time. What had been actually done by the department in thls period to resolve this matter was not stated.

On 25 September 1990 - that is, about two weeks before the correspondence to which I have just referred - a member of the Human Rights & Equal Opportunity Commission wrote to the second respondent about Mr Vazquez and asked various questions. The situation called for terseness and immediacy of response. Yet the letter was long and the reply was, in accordance with usual bureaucratic practice, therefore

delayed. During the course of his letter, the Commissioner said:

I t would appear from t h e i n f o r m a t i o n prov ided t o me

t h a t Mr Vazquez should n o t be d e p o r t e d t o Cuba

because h i s r e f u g e e s t a t u s has been conf irmed and no

o t h e r c o u n t r y i s l i ke l y t o a c c e p t him. Consequent ly

he i s b e i n g h e l d s u b j e c t t o a d e p o r t a t i o n o r d e r

which i s u n l i k e l y to be put i n t o e f f e c t .

All the premises were correct. The conclusion is now shown to be more hopeful than accurate. The reasons for this failure of optimism are demonstrated by other documents in evldence to whlch I shall come but the history of the matter and the continuing Incarceration of the applicant called for more than asking some questions and expressing a personal opinion. A simple request for immediate access to the departmental papers in the matter would have revealed the facts and, surely, energised further urgent action. Having in mind the Commissioner's opinion, it must have been clear when the letter was written that the applicant was being wrongfully

detained. Yet his immediate release was not sought.

The applicant was held in custody for a further 5 months after this letter and has now been arbitrarily deported without being given an opportunity to approach the Court for relief or the Human Rights and Equal Opportunity Commission for assistance. His human rights have been crudely demolished, with the human rights official in charge of the matter apparently impotent to do anything about the situat~on. ~t was all left to the promptness, truthfulness and compassion of

the applicant every one of these qualities.	the very department who for the previous 23 months had denied
The papers made available to me include a minute from the acting assistant secretary of the Refugees Asylum and International Branch of the Department to the Minister dated
16 November 1990 briefly setting out the facts up to that date
in relation to Mr Vazquez, and asking for the approval of the Minister to a reply to the human rights officer's letter. The purpose of this mlnute, as it was said, was:

To bring to your attention the proposed reply by the secretary to the Federal Human Rights Commissioner concerning the case of M r Francesco Vazquez.

(There is a slight variation between the stated title of the officer referred to and the relevant statutory provision: see Human Rights and Equal Opportunity Commission Act 1986 s.8.)

The minute states that approaches to the United States Department of Justice to find what was described as another home country for Mr Vazquez - meaning, in the language of ordinary folk, to obtain the agreement of the United States to the return of Mr Vazquez - had met what the minute describes as "a negative response". In other words, before 16 November 1990 the United States had refused to take him back. In view of his criminal record and the reasons Australia wanted to deport him, this is hardly surprising. Yet it is an affront to Australian standards of justice that the applicant was in custody while such a wild goose chase was being pursued for so long.

Equal Opportunity Commission to be signed by the second	The suggested reply to the letter of the Human Rights and
respondent is only before me in the form of a draft, but it carries a notation indicating that it was sent to the secretary for signature on 6 December 1990. Counsel for the applicant has infonned me, without challenge from the respondents, that this letter was in fact received by the relevant Commissioner some time in December. By the time of

its receipt, M r Vazquez had been in gaol at the end of h ~ s

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sentence on the crlminal convictions for more than two years.	l
It is difficult to th~nk of a more demonstrative breach of human rlghts for an individual than this. Yet both the department and the Commission were still silent about his release. The frustration and suffering of the applicant and the sense of helplessness felt by his lawyers in the interim can only be matters of speculation.
The second respondent's reply contains two significant parts. The first is:

In answer t o your quer i e s I should a d v i s e t h a t the

Minis ter has not yet made a d e c i s i o n on the quest ion

o f revoking t h e depor ta t i on order made i n r e s p e c t o f

Mr Vazquez and on 5 October i n s t r u c t e d the

Department	t o re-examine	o t h e r op t ions	a s	a	ma t t e r
o f p r i o r i t y .

This is in virtually identical terms to the equivalent part of

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the letter of 5 October to the applicant's solicitor from the	I
Minister's secretary. It shows that despite the passage of a

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further 2 months, nothing had been achieved. There is no	1 I
apology for the delay, no fixing of an expected time for the	i
completion of this saga, and still nothing about the	1
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applicant's release.	I
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The second part of the letter to the Commission was as follows
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(sic)	:

The Minister is not pursuing deportation to Cuba following the dAT's recommendation which indicated reservations about the possibility of unjust punishment if Mr Vazguez was deported to Cuba.

Consequently he is looking to the VS from whence l r i r Vazquez was resettled as an alternative country to which he may be deported.

Yet by the time of this letter, the "US option" had been specifically refused by the US authorities. This was a rank misleading of the Human Rights and Equal Opportunity Commission, if not worse. It is an offence (see Human Rights and Equal Opportunity Commission Act 1986 s.25) and is inexcusable. It does not appear to have been prosecuted. WO

months later, for all anyone knows, the applicant faces possible torture or even death, or if Cuba will not admit him, endless travel around the world looking for a home. Why was the applicant told, through the Commission, that deportation to Cuba was not being pursued? Why was he informed, through the Commission, that the USA was still being investigated as a possible alternative recipient country when this was apparently quite untrue? If the USA was being approached

why was such a futile exercise undertaken? Why was the	again to reconsider its previous rejection of the applicant,
Commission not informed? Was it to lull the applicant and his advisers into a false sense of comfort and assurance so that they would drop the challenge to the deportation order and refrain from other legal proceedings? Or was it to avoid another long letter from the Commission?

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All this certainly succeeded in achieving those goals, including deflecting the relevant Commissioner from the effective discharge of his obligations. No doubt he will want answers to these affronts to his authority, not to mention hls views in this particular case, although no request for an explanation appears to have emerged from him yet. The department was permitted to take two and a half months to reply to the letter, apparently without protest from the Commissioner, despite the applicant's continuing incarceration. There is not much point in having a solemn system of checks and balances to monitor bureaucratic excesses and human rights violations if they can just be ignored or diverted in this fashion. When this involves a wrongful denial of personal liberty, the seriousness of the matter is beyond polite or sedate expression.

The recommendations of the Tribunal made on 14 July 1989 were as follows:

( 1 ) I f the M i n i s t e r w i she s t o s t i l l a f f i r m h i s

o r d e r - t h a t i s h i s o r d e r f o r d e p o r t a t i o n - he

shou ld n o t do s o u n t i l h i s o f f i c e r s have made

s a t i s f a c t o r y arrangements t o s ecure a p lace t o

which the a p p l i c a n t may be depor ted w i thou t

danger o f u n j u s t punishment, i n s p i t e o f the

problems mentioned i n paragraph 11 o f h i s

p o l i c y . As the a p p l i c a n t came from the

Uni ted S t a t e s o f America perhaps t h a t c o u n t r y

w i l l t a k e h im back .

( 2 ) I f the Minister i s minded to permi t the

a p p l i c a n t	t o remain	i n A u s t r a l i a	he	should	do
s o o n l y when	he	i s s a t i s f i e d	t h a t	the	a p p l i c a n t

h a s submi t t ed t o appropr ia t e p s y c h i a t r i c

t r ea tmen t	and	i s	n o	l o n g e r	a	danger	to
A u s t r a l i a n	women.

, . .

In other words the Tribunal was putting the viewpoint, which by the statute may only be in the form of recommendations, that M r Vazquez should only be deported to a country where he

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would not suffer the danger of unjust punishment (presumably,	1-
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especially Cuba). If it is not possible to achieve that, lt !

was recommended that the Minister permit the applicant to

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remain in Australia, but only if he 1s satisfied that the	i ' I .%
applicant has submitted to psychiatric treatment to deal with	I
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his penchant to be violent and cruel to Australian women.	The	,
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involvement of Vazquez with Australian women is rather

colourfully detalled in the Tribunal's determination and I

shall not repeat it here. His personal appeal appears to have	l:.
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been fatal in more ways than one.	The description given makes	i
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understandable the ministerial dilemma in this case.	,
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My attention has been drawn to the published policy of the	i -
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Australian Government in relation to recommendations of the	! ,
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Tribunal that they should only be overturned in exceptional	!
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circumstances and only when strong evidence can be produced to

justify the decision. Indeed, the Minister is required by the	,
policy statement to table in Parliament at the first
opportunity a statement of his reasons for going behind a	I I
recommendation of the Tribunal.	I,
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The case already presented the Minister with a most difficult	I .
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choice. However, the precise terms of the Tribunal ' S recommendations confronted him with an anomaly that made the problem worse. It may be assumed that a political refugee

from Cuba may very well suffer the danger of unjust punishment if he is required to return to Cuba. Thus the first

recommendation of the Tribunal would certainly exclude	I.
admit him and as no other country appears to have been considered or to have contemplated accepting him, that only leaves Australia.
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However, the second of the Tribunal's recommendations told the	l
Minister that if the applicant refuses to undergo psychiatric	l ,
treatment, he should not be allowed to remain in Australia. As I understand from his counsel that the applicant has never
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acknowledged any psychiatric condition requiring treatment,
the Minister had absolutely no way whatever of complying with	1
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the recommendations. The explanation of his resolution of
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deportation to his country of origin. As the USA will not

this matter will no doubt be given to Parliament shortly. It

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has not been vouchsafed to me today.

Thus the case made now is that the Minister's assumed decision

deportation to Cuba today, both done, as counsel for the	to affirm the deportation and the applicant's actual
applicant asserts on instructions, without any notice even that the deportation to Cuba was being considered as a possibility, and against the express disavowal of such an intention to the Human Rights & Equal Opportunity Commission, ought to be reviewed by this Court under an application for order of review under the Administrative Decisions (Judicial Review) Act.

It should at once be observed that no review is sought of the deportation order made in November 1988. Apparently there was an application before the Court for such a review, but M r Justice Davies noted in his judgment of last December that it was not being proceeded with. It may not have been formally dismissed.

Counsel for the applicant says that the reason in effect why it was not proceeded with then was because, on the advice of the Minister's office, the future of Mr Vazquez was still being considered and no decision on the revocation of the deportation order had yet been made. As the matter was about to be reviewed afresh and deportation to Cuba had been specifically rejected, counsel said that there seemed to be no point in challenging the deportation order itself. In hindsight this decision, if otherwise correct, seems to have been based more on optimism than realism. The capacity of the decision-making process to be arbitrary, even whimsically so, was sadly, if understandably, underestimated.

Thus this application for an order of review would be the	first time in which the rights and wrongs of the deportation
order could be considered, even if under the framework of a review of the recent assumed decision to affirm or not to revoke the deportation order.
There is nothing before the Court at the moment to say that there was in fact a decision to affirm or not to revoke the
deportation order at all. In fact llttle evidence in the
strict sense has been put before the Court in this application although the respondents must have quite an amount available. All the letter of the senior private secretary of the Mlnister of 5 October and the letter of the second respondent to the Human Rights and Equal Opportunity Commlssion in December 1990 suggest is that the Minister was intendinq to make a decision as to whether to revoke the deportation order.
I am informed by counsel for the applicant, on instructions,
that neither the Minister's secretary nor the Minister himself has notified the applicant's solicitor or, as far as counsel knows, the applicant himself, even to this very day, of the outcome of the re-examination. The legal representative of the respondents thought that there may have been some notification, although no evidence was produced to this effect. If she is wrong, this is truly outrageous. Davies J has already made some observations about the lengthy delay of the reconsideration. I can only underline and reaffirm what
after his Honour was speaking, there is still no explanation his Honour has said with the added observation that 3 months
of what the "re-examination" entailed. However, the inference which counsel asks to be drawn from the deportation of the applicant today is that there has been such a decision and that it was negative to the applicant. The suggested implication is overwhelming in the circumstances.
My present task is not to decide the application but to examine whether the applicant has an arguable claim for judicial review. The first ground of the appl~cation to review thls decision is that it must have manifested an error of law concerning the applicant's refugee status under the Geneva Convention on Refugees, an important human rights convention which Australia adheres to and generally complles with. Without reasons of any kind, it is very difficult to find that the decision was or may have been activated by an error of law in relation to refugee status. Counsel's task is also difficult but no suggested error has been identified.
No point was made that once admitted as a refugee, a person cannot be deported under any circumstances, although I must say that it has always been my impression that the Convention firmly implles that there should not be a deportation to the country from which refuge was originally granted unless perhaps if the political circumstances or complexion of the country concerned had changed. That has not happened in Cuba.
matter. For now it is sufficient to record that I was not Time does not allow me a detailed consideration of this asked to find an error of law on the basis that the applicant's refugee status had been wrongly revoked, interpreted or understood.
On the contrary, from all the documents available to me, it seems clear that the Minister has always accepted the refugee status of the applicant. It thus does not seem likely that

the decision to affirm the deportation order is vitiated by any error of law in revoking that status or misunderstanding its legal ramifications and consequences. In fact, as I have to be in the business of drawing inferences from the documents, the final decision to deport was apparently made out of concern by the Minister for the personal safety of the Australian people, presumably, in particular, Australian women who may come into contact with the charms of M r Vazquez if he is again free to display them within the country.

The second ground of the application is that the declsion was unreasonable. At least 3 reasons are presented. The first is that the Refugees Convention was misconstrued and I have dealt with that argument. The second is that the Minister failed to apply the protective provisions of the Convent~on to the applicant despite the policy of the Australian Government to do so. I have effectively dealt with that by saying that I do not think that refugee status played any role in the decision of the Minister, so far as I can tell from the scanty material

refugee would be forcibly repatriated to the country from	available. Whilst it would surely be a rare case that a
which he had sought refuge, it is not suggested that this is a breach of Australian law or that it represents a brake on the Minister's statutory power to deport.
The third aspect of suggested unreasonableness is that the decision departed from the recommendations of the Tribunal. My feeling about that is that the Minister had to depart from the recommendations of the Tribunal because ~t was not possible to carry them out literally and deal with the problem. As I have shown, he could not have dealt with the applicant's case merely by complying with one or both of the Tribunal's recommendations. I thlnk that it was open to the Minister to carry out hls obligations and duties by trying to balance the danger for the applicant of deportation to Cuba on the one hand against the exposure of the Australian people to danger from the applicant's personal activities whilst in this country on the other. In the circumstances, deportation could not be said to be an unreasonable departure from the recommendations of the Tribunal, if it was a departure at all.
The third ground of the application is that the Minister failed to have regard to the diminished responsibility of the applicant at the time of the commission of the criminal offences which were the bases of the deportation order. There is a threshold problem with this argument because counsel for the applicant informed me that his client did not admit to any
medical treatment. I am informed that there was some evidence diminished responsibility or psychiatric condition calling for
before the Tribunal both ways in relation to whether he did or did not have any psychiatric condition such as to have supported a finding of diminished responsibility, with the applicant's evidence being in effect that he did not, whereas other evidence suggested that he did. But this was in truth a matter to be argued and resolved at the criminal trial. In view of the applicant's disavowal of a mental disability, it would seem odd if it was raised as a defence at his trial. But if it was, it seems to have been disregarded by the jury. I have not been told whether it played any part in the sentencing of Mr Vazquez. It would be rare that such a matter could be re-tried or re-assessed in an application for judicial review.
It is also difficult for the applicant to call this ground in aid on another basis. It does not appear to be suggested, and it seems unlikely, that diminished responsibility could have played any role in the Minister's reconsideration of the deportation order actually being sought to be reviewed here. I can see little relevance to deportation that could be attributed to a diminished responsibility at all, let alone when rejected by both the jury, the trial Judge and the applicant himself. Perhaps in some circumstances it might be a ground to review the deportation order itself but that is not what is before the Court.
Despite the reasons given for the non-pursuit of that matter, it strikes me as being extraordinary that in all the very long
time the applicant has been in prison awaiting deportation, there was no attempt to seek an order of review of the deportation order, that when the matter did come before Davies
J it was not pressed, and that even now the original
deportation decision is in truth, as opposed to in form, not being expressly challenged. I understand the reason why it was not pressed before Davies J but that it was apparently not
kept on foot produces some consequences. One is that it would be difficult to obtain leave to review it so far out of time. Another is that the Minister cannot now be attacked for failing to consider certain matters that would possibly have been relevant at the time the deportation order was originally made.
The other orders sought in the application are against the second respondent for ordering or causing the deportation to take place today, and against the third respondent for co-operating in its execution.
There appears some doubt about the second respondent's involvement in the matter. From the bar table, I have been informed by the legal representative of the respondents that the deportation order was merely executed and that the secretary made no separate decision in the matter. If so, and this is not challenged, there seems nothing of the second respondent's to review.
this matter other than by officers of the Immigration I can see no evidence of the Commonwealth's implication in
Department. It has been said that that the applicant is being accompanied to Singapore by a Qantas security officer, but the Commonwealth would not have liability or be answerable for any acts of that person. The applicant's counsel declined my invitation earlier today to join Qantas as a respondent. I cannot see how an arguable case appears likely to be established against the Commonwealth.

If an arguable case can be mounted against the first respondent, should the applicant be returned to Australia by the mechanism suggested, the next question would be where the balance of convenience lies. Were the applicant still in Sydney, I do not doubt for a moment that some interlocutory orders would be made to ensure that the matter could be brought before the Court. This is because where a hearing can be provided with relative ease, the test for arguability is likely to be somewhat less strict.

On the present balance of convenience, there are a number of discretionary matters that have to be taken into account. On the one side there is primarily the cost and inconvenience of bringing the applicant back from Singapore and keeping him here. There is a problem about how and by what authority he would be admitted to Australia. On the other side there is the fact that the department has acted in this matter, to say the least, without a great deal of meritorious and decent attention to the fundamental rights of the applicant and his

Rights and Equal Opportunity Commission.	legal representatives and to its own obligations to the Human
I have had cause to mention this in other cases, as have other Judges of the Court, but it really is something less than worthy of a great department of state to spirit a deportee out of the country without notice, let alone a refugee and permanent resident back to his original country. Nothing seems to be known about Cuba's willingness to accept him, but if admitted there at all, he faces fear and the possibility of danger and persecution or worse. This behaviour is especially improper ln the face of previous undertakings in wrlting to notify the person concerned or his legal representatives before such steps were taken and an unequivocal commitment to a public official in the person of a member of the Human Rights and Equal Opportunity Commission, to whom the department was obligated to answer, that he would not be repatriated to Cuba, whatever else happened. Even if some notification of a change in these positions was given, it does not appear that the notification was given in clear enough terms and in sufficient time and to the right people to enable the applicant to bring a case before the Court.
If this matter fell to be determined on discretionary bases, I would unquestionably come down on the side of the applicant, despite the considerable expense involved. In a country which prldes itself on its civilised and orderly behaviour, and which boasts of a human rights record and approach second to none, it seems to me that the administration should be held
overbearing actions regardless of the legal and natural responsible for expenditure caused by high-handed and justice rights of a person lawfully in Australia at the time.
I therefore return to the chances of the applicant's being able to mount a successful challenge to the assumed decision not to revoke the deportation order. People who come to Australia know at the time they migrate here that complying with the laws of the country is a necessary prerequisite to their remaining here. People who obtain permanent residence

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but either do not seek or do not have citizenship, even if

only because the relevant waiting or qualification time has	, ,
not passed, know that they are effectively here on probation.
Those who commlt serious and violent offences resulting in
prison sentences of the size of two years know that they are
putting at real risk and minimising their chances of being	l I-.
able to remain here.	i , ~
Moreover, I agree with the solicitor for the Minister that	1
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this case cannot be said to be one to which the Minister has
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not given careful attention and close personal considerat~on.
The delays and conduct of his officials are intolerable but it
does not appear that there has been any lack of detailed	j:  i '
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application when the Minister's personal attention has been
required. The Minister made the assumed decision. In doing
so it seems that he considered every possible option, although
a ridiculously long period of time was taken to supply him	i  '
with the available choices. Moreover, he does not seem to have been adequately advised that the consequences of his
decision to proceed with deportation required presenting the	applicant with reasonable notice of what was to happen to him
after so long a delay.
That the Minister's representatives should have behaved so reprehensibly does not relieve me of the need to take into account the fact that it is for the Minister to balance these various considerations. Nothing in the statute or in the recommendations of the Tribunal takes away from the Minister the responsibility of determining where the balance must be

drawn between, on the one hand, the awful consequences that might befall this man if he is re-admitted to Cuba and the harrowmg life of peregrination he might face if he is not, and on the other, the misfortunes that might befall Australia and Australians if he is allowed to remain here. Especially is this the case if he is or may be suffering from some medical condition whlch he does not acknowledge and therefore does not wish to attempt to have treated. This is a balance which the Minister alone has to flnd, based upon all the considerations that he can reasonably take into account. Here it seems he was very much alone, having regard to the lack of assistance he received from his department, his personal staff and the Tribunal.

From reading the material, I have no doubt that the Minister has paid close regard and attention to the risks that might come to the applicant if he is repatriated to Cuba. In these circumstances I do not think that the blame for coming down against his continued residence in Australia can be laid at

the feet of the applicant himself who chose a lifestyle which the Minister's door. It must be laid fairly and squarely at	has made the Minister's ultimate declsion virtually
inevitable.
I repeat that it is most improper for people to be removed
from Australia without being glven an adequate opportunity to test their legal rights. Australian law does not permit government departments to act in such a way that people have justiciable facts and decisions created for them by acts of

finality for the testlng of which before the Court a reasonable opportunity is not given. Parliament has specifically provided legislation for that purpose. If the acts and procedures are right in law, no one need fear the outcome in Court. If public justiflcatlon or explanation of the acts or procedures is deliberately frustrated, the assumption may be that there was something to hlde or avold. This is not how the rule of law operates to regulate affairs in free countries.

However, I have an obligation in this case to look beyond the forms to determine whether an arguable case for some form of relief would exist if the proposed case is brought before the Court. I have come to the conclusion that such a case 1s so unlikely and so far fetched as to make its successful presentation negligible or very remote. For those reasons I dismiss the application.

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