Yilmaz v Minister for Immigration & Ethnic Affairs

Re: YILMAZ & OTHERS
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G.433 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Administrative Law - Immigration - Deportation of prohibited non-citizens - Application for stay of implementation of decisions to deport pending final hearing of Application - Whether there exists any serious question to be tried in relation to legal validity of decisions - Time when decision taken - Content of Ministerial policy - Effect of deportation on infant children of first and second applicants, being Australian citizens - Effect of failure of deportment to respond to two particular applications for entry permits.

Migration Act ss. 6, 6A, 7, 18

Administrative Decisions (Judicial Review) Act 1977 ss. 5, 7, 15

HEARING

SYDNEY

#DATE 18:12:1984

ORDER

The application for a stay of the implementation of decisions made by the delegate of the Minister on 29 October 1984 to deport the first and second named applicants be dismissed.
The first and second named applicants pay to the respondents his costs of the application for a stay.

JUDGE1

There are before the Court applications on behalf of the first named applicant and the second named applicant for an order under s.15 of the Administrative Decisions (Judicial Review) Act 1977 staying the implementation of decisions made by the delegate of the Minister on 29 October 1984 to deport the first named applicant and the second named applicant from Australia to their native Turkey.

It appears that the first and second named applicants, who are husband and wife, entered Australia on 24 March 1981 pursuant to a temporary entry permit valid for one month. Each of the temporary entry permits was subject to a condition "employment prohibited". No further temporary entry permits have been granted to either of these applicants since their entry into Australia. Apparently they had no contact with officers of the Department of Immigration and Ethnic Affairs since the time of their entry until 18 October 1984 when the first named applicant, Mr Yilmaz, was located by officers of the department working in a shop at Chatswood.
Both Mr and Mrs Yilmaz were interviewed on 19 October when a record of interview was taken and it appears from what was then said that both of the applicants had engaged in paid employment whilst they were in Australia.
During the period that they have resided in Australia two children have been born to them. The elder child, Taygan Yilmaz, was born on 21 September 1982 in Melbourne. He is the third named applicant to the proceedings. The younger child, Alkan Yilmaz, the fourth named applicant, was born on 16 Augusst 1984 in Sydney. Both children reside with their parents. They have no other relatives in Australia.
Following the interviews with an officers of the department on 19 October Mr Yilmaz sent to the department a bundle of references as to his good character and conduct and his usefulness in employment. On 26 October a deportation case summary was prepared in respect of each of the first and second named applicants by Mr I Heath, an officer of the department. A recommendation was made that a deportation order be signed. Such an order was signed on 29 October by Mr W J Gibbons, the delegate of the Minister. Subsequently there was correspondence between solicitors acting for the applicants and the department but no change in the departmental view occurred.
On 7 December 1984 an application was filed in this court pursuant to the Administrative Decisions (Judicial Review) Act seeking review of the decision of 29 October 1984.
On 10 December 1984 there came before Sheppard J an application for a stay of the deportation order, the deportation being then imminent. It emerged during the hearing on that occasion that an application had been made to the delegate pursuant to s.13 of the Administrative Decisions (Judicial Review) Act for a statement of the reasons actuating the decision of 29 October but that no statement of reasons had yet issued. This apparently was the result of the fact that the request had been mislaid within the department. His Honour took the view that the applicants should have the benefit at least of a statement of the reasons behind the decision before any action was taken for their deportation and he granted a stay of the deportation until 17 December and directed that a statement of reasons be furnished not later than Thursday, 13 December. In fact the statement of reasons was not supplied until the morning of Friday, 14 December, and when the matter came before me yesterday, 17 December, I acceded to an application made on behalf of the applicants for an adjournment of one day to allow them to put on certain further material. Affidavits were filed pursuant to that opportunity and the matter has been argued very fully on their behalf by counsel today.
The question which I have to determine is whether, to use the language of Gibbs CJ in Australian Coarse Grain Pool Pty Limited v. Barley Marketing Board of Queensland (1982) 46 ALR 398, there is a serious question to be tried as to the applicants' entitlement to relief in the principal application. There can be no doubt that all matters related to the balance of convenience point in their favour. The disruption to their family life if they were to be deported pending eventual determination of the matter would be considerable whereas there is nothing said, on the other hand, as to any detriment which would occur to Australia or to the proper administration of the law if there were a stay of the deportation until such time as any serious question which might arise could ultimately be determined.
I have invited counsel for the applicants to indicate the particular decisions or non-decisions which are argued to be vulnerable to attack on legal grounds, and thus susceptible to review under the Administrative Decisions (Judicial Review) Act. It is, of course, clear that I am not in any way concerned with the wisdom or otherwise of the decisions which have been made or as to the question of what should be the proper balance between those policy matters which might be thought to lead towards a decision to deport and those matters, chiefly personal to the applicants themselves, which might be thought to lead to the view that the applicants should be allowed to stay in Australia. Those are matters for the decision-maker himself; they are not matters for this Court.
The first of the decisions relied upon, and indeed it is the principal decision, is that of 29 October 1984. The reasons for that decision have now been furnished and the argument has focused upon various things that are there said; and in some cases not said.
The first matter that is put is that the decision was made with undue haste. It is said correctly that the first contact in recent times between the applicants and the department was on 18 Ocrober, that they were each interviewed on the morning of Friday, 19 October, and that the decision was made upon Monday, 29 October. That means that only a period of five clear working days elapsed between the time of the interviews and the time of the ultimate decision. There is no suggestion in the evidence that the applicants, or either of them, requested a deferment of the decision as to their future for any particular period or to allow any particular steps to be taken. There is no suggestion that either of them indicated that they proposed to submit further material to the department. They were informed that they had the opportunity of giving information to the department. They informed the interviewing officer that they understood that the purpose of the interview was to allow such further representations as to their positions as they desired. So far as she was concerned, it would I think have been a reasonable conclusion at the end of the interview that neither of the applicants proposed to submit anything further. They were apparently given an opportunity to write on the sheet of paper anything which they wished to convey, but neither of them availed themselves of this opportunity. The explanation which is given was that at the time the children were present and they were somewhat distracted. I can well understand this. However, from the point of view of the interviewing officer, I think the important thing is that not only was there no request for more time, but that it appeared that nothing further was to be provided.
If either of the applicants felt that they had failed to do themselves justice at the interview, it is to be expected that they might have submitted further material to the department. If such material was received prior to the decision being taken, provided it was relevant to the matter for consideration, there would be an obligation on the delegate to have regard to it.
Mr Yilmaz seems to have understood that he had this right, because, as I have mentioned, he did get together and submit to the department during the week which elapsed before the decision was made, a bundle of references in his favour. In the course of doing this, he had contact with a solicitor, Mr Peter Tesoriero. Apparently he understood that Mr Tesoriero was a solicitor, although it is fair to say that it does not appear that Mr Testoriero was ever engaged to act as a solicitor on his behalf. I think that the point is that Mr Yilmaz understood that he could submit further material, he had enough knowledge of his position and enough confidence in his handling of the matter to get together the material and submit it and, in the course of doing that, he did not suggest that any further time was required.
Under those circumstances, I can see no element of unfairness in the department drawing the matter together by a summary on Friday 26 October, and making the necessary decision on Monday 29 October. There was nothing before the decision maker or anybody else in the department to suggest that further information was desired to be put before the decision was made. The view may well have been taken that it was desirable to deal with the matter in an expeditious way. It seems to me to be inherently undesirable that a decision as basic to the future planning of a family as a decision whether or not they should be allowed to remain in the country should be delayed for any longer time than is reasonably necessary to allow the requisite material to be got together. Making the assumption that the rules of natural justice are relevant to this application, and in that regard I bear in mind that the current authorities in the High Court are to be contrary, it seems to me that there was no element of unfairness or denial of natural justice in respect of the time when the decision was taken.
The second matter referred to by counsel for the applicant is that the department sought to enforce too strictly the ministerial policy relating to the deportation of non-citizens who overstay their temporary entry permits into Australia. Indeed counsel went so far as to criticize the content of that policy. But, as I pointed out to him in argument, these are not matters that go to the question of natural justice and they are not matters for the Court. The policy may be good or bad: that is a matter for the Minister and ultimately for the Parliament. It is not for this Court to say that the policy is too strict on persons who are here illegally, or that it ought to be enforced in any particular manner. It is clearly relevant to the decision to be made for the policy to be considered. It is clearly relevant for the personal circumstances of the individual migrant to be considered. The weight given to these matters is for the decision maker.
The third matter relied upon was that in the course of his findings on material questions of fact, in the s.13 reasons, in para 10, the delegate made this statement:

"The applicants committed offences under section 27(1) and section 31B(2) of the Migration Act."

The matters referred to in those sections are the failure to leave Australia at the expiration of the temporary entry permit, and the undertaking of employment in breach of a condition of the temporary entry permit. Counsel does not dispute that in fact there was a breach of each of those sections, but he takes exception to the fact that the delegate referred to the applicants having committed offences. He says that no such finding should have been made, and certainly not on the basis of information supplied by the applicants without the benefit of a formal caution or legal advice.
It seems to me that this argument misconceives the exercise upon which the delegate and the other officers of the department were engaged. They were not concerned with the prosecution of the applicants for a criminal offence, still less to reach any conclusion as to their guilt, or to impose any penalty. They were concerned in an administrative sense with the question of compliance with the requirements of the Migration Act. The paragraph does no more than set out in a summary form, and by reference to the relevant provisions of the Act, the material which had in fact been supplied by the applicants to the department as to their continued presence in Australia since the temporary entry permits expired, and as to their having engaged in paid employment. I do not think, even assuming that the rules of natural justice are applicable, that there is anything in this point.
The next submission by counsel relates to the youngest child. As I have mentioned, he was born last August and it appears from a note on the file of his mother that he was being breastfed at the time when the interview took place. It was said that the decision to deport the applicants was legally invalid because it failed to take into account a relevant consideration, namely that the younger child was still being breastfed. It was further said that, in an authority issued by the department to Qantas Airways, there was reference to the children accompanying their parents from Australia to Turkey.
I think that there is no doubt that the relevant officers of the department assumed that, if the parents were deported, the children would leave Australia with them: this emerges quite plainly from para 16 of the s.13 reasons. It is equally plain that the officers of the department realised that there was no legal power to deport the children because they were Australian citizens. Indeed, the file reveals a conversation between Mr Yilmaz and an officer of the department during which Mr Yilmaz said that if he and his wife were deported, his children would stay behind in Australia. The officer accepted that they had the right to take that course although she proffered the view, the legal correctness of which does not matter, that if the children remained without relatives they would have to become wards of the state. The important point was that the officers did understand that in the normal course of events it was likely that the children would go, and therefore there was no problem because the younger one was being breastfed. They also understood that if the parents chose to leave the children behind, then that was an option legally open to them, in which event the younger child would have to be weaned.
The next matter relevant to the children is that it is said that the delegate failed to take into account the likely prejudice to their Australian citizenship if they in fact departed from Australia and returned to Turkey with their parents. In para 16 of his reasons the delegate said this:

"The deportation of the applicants would not prejudice the children's Australian

citizenship."

Although counsel accepts that the mere deportation of the applicants, and the departure with them of the two boys, would not affect the Australian citizenship of the children, he says - and there is some material in the affidavit of the first applicant to support this - that it is the law of Turkey that young men at the age of 20 have to undertake service in the army. Apparently, once they turn 18, they are not allowed to leave Turkey until after completion of their national service. He says that if the boys return to Turkey with their parents, then it is likely that, for economic or other reasons, they will continue to reside in Turkey until they, the children, obtain the age of 18 years, that they will be likely thereupon to be required to undergo army service and that, upon recruitment into the army, they will be asked to swear an oath on a rifle in accordance with the requirements of Turkish military law or procedure.
The affidavit of the first applicant of 17 December indicates that he himself had to swear such an oath when he undertook his compulsory military service. The argument runs that if those events occur then the view may be taken that the boys, or one of them, have, in the words of s.17 of the Citizenship Act, 1948, by some voluntary and formal act acquired the nationality or citizenship of a country other than Australia. In that event, by force of that section, they or that one of them would cease to be an Australian citizen.
It seems to me that one has to make a series of significant assumptions in order to give any weight to that argument. The first assumption is that the boys or either of them are still resident in Turkey at age 18. That may or may not happen. They would have the right to return to Australia at any time before that age was reached. They may go to some other country. The second assumption is that there will still be compulsory military service in Turkey at that time. The third assumption is that they will in fact be called up and passed as medically fit for military service. The fourth assumption is that there will then still exist the same type of induction procedure that Mr Yilmaz underwent on commencing his military service some time ago.
Finally, it has to be assumed - I would have have thought contrary to reason - that an Australian court would regard an oath taken pursuant to a requirement of Turkish law, and as to which the oath taker has no choice whatever, as amounting to a voluntary and formal act whereby he acquired Turkish nationality. Without wishing to indulge in speculation as to whether or not either of the boys are likely to undergo military service in Turkey, it seems to me that the view that such a chain of events would lead to a loss of Australian citizenship is to read out of s.17 the reference to voluntariness. It is true that the delegate did not advert to the possibility of Turkish military service. He would have realized that if the boys returned to Turkey they would live in accordance with Turkish ways of life and be susceptible to Turkish law. I do not think there is any particular characteristic of military service which specifically should have been taken into account. I note there was nothing put before him in that regard. Decision makers are required to take into account relevant matters which are either known to them or which ought reasonably to be known to them. They are not expected to be omniscient. If persons in the position of the adult applicants in this case do not draw attention to particular matters likely to affect their children, then I do not think that there can reasonably be a complaint that those particular matters have not been taken into account. However, even if the position was that the decision maker had something before him which should have caused him to realise that military service would be required, I think he was quite correct in his ultimate conclusion that the deportation would not affect the continued Australian citizenship of the two boys. It therefore seems to me that there is no reasonably arguable basis for an attack on the decision of 29 October.

The remaining matters can be dealt with more shortly. They are not complaints of decisions made but rather of failure to make a decision. The first matter is that on 9 November 1984 Mrs Yilmaz lodged with the department an application for a temporary entry permit. For some reason which does not appear, that application was not formally dealt with. The complaint is made under s.7 of the Administrative Decisions (Judicial Review) Act that there was a failure to make a decision within a reasonable time, entitling the second applicant to a review. That submission would have had some weight but for the subsequent events. On 14 December 1984, an application was made on behalf of Mr and Mrs Yilmaz for the grant of a temporary entry permit. This application was made in a letter submitted on their behalf by their solicitors Messrs Casula and Company. The application was dealt with promptly and it was refused, as is indicated by a letter from the department to the solicitors dated 17 December 1984. In that letter Mr Heath, on behalf of the department, stated that the delegate considered the question of issuing further temporary entry permits to the applicants on 29 October 1984 and that he had decided, for the reasons given, not to issue such permits. It does in fact appear from the s.13 reasons that the matter of a temporary entry permit was in the mind of the delegate at the time of his decision of 29 October. I think that the letter of 17 December can only be read as amounting to a refusal of the renewed application of 14 December and a statement that the reasons for the refusal are the same as the reasons for the decision of 29 October. Although, as a matter of administrative tidiness, the application of 9 November 1984 should have been dealt with, nothing can turn on this. It is clear that the delegate put his mind to the question of the grant of a temporary entry permit more recently than that date and decided to adhere to the view that he took on 29 October.
The other suggested omission is the failure of the delegate to make a decision to grant a permanent entry permit, as sought on behalf of each of the first and second applicants, by a letter from their then solicitors, Messrs Bruce Lane and Company, on 9 November 1984. As counsel pointed out, the practical situation is that no permanent entry permit can be granted unless there is in force a temporary entry permit. I speak of the practical situation because s.6A of the Migratin Act, which empowers the issue of a permanent entry permit, does include some exceptions which are not applicable to the present case. The position then is that, unless and until a temporary entry permit is granted, the only possible response to the request for a permanent entry permit must be in the negative. Once again, it might have been tidy for a letter to have been sent by the department to the applicants, or to one or other of the firms of solicitors who have acted for them in regard to the matter, to point out this fact, but I do not think there was any question of their having been misled about the situation. It would be futile to grant review of the failure to make a decision in regard to the permanent entry permit in the absence of some basis or impugning the validity of the decision to refuse a temporary entry permit.
I have reached the conclusion that there is no serious issue to be tried in support of the application for review of any of the decisions or of the conduct of the respondent in respect of non-decisions in relation to which complaint has been made. As I have indicated, considerations relating to the balance of convenience are all in favour of the applicants. Had I thought that there was any legal point which had any prospect whatever of success in this Court, I would have exercised my discretion so as to stay the implementation of the order until such time as the application could be determined on its merits. However, I do not think that there is any such question. In those circumstances it would be an incorrect exercise of my discretion to stay the implementation of the order simply to allow the applicants a continued opportunity to remain in Australia. The application for a stay must be dismissed. I order the applicants to pay the costs of the respondent of the application for a stay.

[1984] FCA 482

18 DECEMBER 1984