Re Mohamad Wahib Fouad Safadi v Minister of Immigration and Ethnic Affairs [1981] FCA 179 (10 November 1981)

FEDERAL COURT OF AUSTRALIA

Re: MOHAMAD WAHIB FOUAD SAFADI
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G.144 of 1981
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.

CATCHWORDS

Administrative Law - Deportation of illegal immigrant - Application for review - Whether a breach of the rules of natural justice occurred - whether the decision to deport was an improper exercise of power - whether prohibited immigrant was person aggrieved.

Administrative Decisions (Judicial Review) Act 1977 s.5

Migration Act 1958

HEARING

SYDNEY
10:11:1981

DECISION

Mohamad Wahib Fouad Safadi ("the applicant") seeks a review of the decision of the Minister for Immigration and Ethnic Affairs ("the Minister") of 14 October 1981 wherein the Minister ordered that the applicant be deported from Australia ". . . in pursuance of the power conferred upon me by section eighteen of the Migration Act 1958".

The application is brought under provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). The section most relevant is 5(1)(a), 5(1)(e) and 5(2) which I set out:

"5.(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:

(a) that a breach of the rules of natural justice occurred in connexion with the making of the decision;

(b) . . .
(c) . . .
(d) . . .

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
. . .

(2) The reference in paragraph (1) (e) to an improper exercise of a power shall be construed as including a reference to -

(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power."

The applicant was born in Lebanon in 1946. He arrived in Australia on 13 February 1981 and was granted an entry permit on that day. The entry permit was limited to expire on 30 March 1981 and it was therefore a temporary entry permit. No further permit was granted to the applicant. On 10 July 1981 the applicant married an Australian citizen. On 12 September 1981 the applicant was arrested as a prohibited immigrant under the provisions of s.38 of the Migration Act.

It is clear that after 30 March 1981 the applicant was a prohibited immigrant and, inter alia, liable to prosecution under s.27(1) (ab) of the Migration Act.

Prior to his arrest it appears that the applicant knew that certain representations which had been made on his behalf, seeking authority for him to remain in the country, had been unsuccessful. Affidavits in support of the application have been filed but no affidavit has been sworn by the applicant.

After the applicant's arrest representations were made to the Minister by the solicitors acting for him in a letter of 16 September 1981. It appears that a Mr. Meredith, who was said to be the officer in charge of the case in the department, had a conversation on 23 September 1981 with Mr. Bilinsky, a member of the firm of solicitors acting for the applicant. A note in the departmental file of this conversation made by Mr. Meredith reads: "Mr. Bilinsky rang. Told him submission was still under preparation. He does not wish situation to arise where his client is deported before he has a chance to make further reps. I assured him this would not occur and reiterated that as soon as Min's office 'phoned me re decision, I would 'phone him and also that he would receive written reply to reps before any deportation, if d/o was signed by Minister".

On 1 October 1981 the applicant was released from custody and he then cohabited for the first time with his wife and continued to cohabit until the deportation order was made.

On 15 October 1981 a letter was written to the applicant's solicitors informing them of the Minister's decision. On the same day the applicant was arrested.

Counsel for the applicant relied on a number of grounds. He argued that the order was defective because it did not set out the date when the applicant entered Australia nor did it specify the date upon which his permit expired.

I do not accept this submission although it would have been better if those details had been included. It is quite clear that the order of deportation was made pursuant to the powers in s.18 of the Migration Act.

The applicant also argued that there had been a denial of natural justice in that no hearing was afforded to the applicant before the Minister gave his decision. When the Minister signed the deportation order he had before him a submission from the Acting Assistant Secretary Control Branch of the Department of Immigration and Ethnic Affairs dated 12 October 1981, an apprehension report, the letter of 16 September 1981 from the applicant's solicitors and a letter from a member of the House of Representatives of 17 June 1981. The submission concluded with a recommendation that the applicant be deported. It dealt, inter alia, with the applicant's marriage and pointed to differences in statements by the applicant and his wife concerning the relationship between them prior to the marriage and the submission suggested that doubt was thrown upon the motives for the marriage. The applicant submitted that the marriage was genuine and that I should so decide and that the Minister had failed to take into account that the marriage was genuine. It was submitted that the Minister had failed to consider the hardship of the applicant and his wife. It was submitted that the Minister had exercised his discretion in accordance with a policy set out in certain news releases without regard to the merits of the case. It was submitted that the exercise was so unreasonable that no reasonable person could have come to the conclusion to which the Minister came. It was submitted that the applicant had a reasonable or legitimate expectation that he would receive an entry permit under the provisions of s.6A(1)(b) of the Migration Act. It was submitted that, under the policy in the news releases, a person who had a genuine marriage will be allowed to remain in Australia. It was also submitted that, flowing from the conversation with Mr. Meredith, the applicant had a reasonable or legitimate expectation that he would be heard either before a deportation order was made or before he was actually deported.

I pass now to consider the submission in relation to s.5(1)(a) of the Act.

Following what I believed to be the law as set out in Salemi v. MacKellar (No.2) [1977] HCA 26; (1977) 137 C.L.R. 396 and in R. v. MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 C.L.R. 461 I held in Capello v. Minister for Immigration and Ethnic Affairs [1980] FCA 152; (1980) 2 A.L.D. 1014 that, notwithstanding the provisions of s.5(1)(a) of the Act, the power conferred on the Minister by s.18 of the Migration Act was not subject to an obligation to observe the principles of natural justice.

My view was adopted by Northrop J. in Piroglu v. Minister for Immigration and Ethnic Affairs (18 June 1981 unreported). Ellicott J. in Haj-Ismail v. Minister for Immigration and Ethnic Affairs (25 August 1981, unreported) expressed the view that, at least in an ordinary case, the right to be heard did not exist and at p.37 he said: "In the ordinary case where a person enters as a visitor for a limited period there can be no question in my view that that person would not be entitled to an opportunity to be heard, before the further permit is refused, or if he becomes a prohibited immigrant, before a deportation order is made". I understand that judgment is under appeal by the Minister.

I am of the opinion that the applicant is not entitled to any relief on the ground specified in s.5(1)(a) of the Act.

The application was also based on s.5(1)(e) of the Act as construed pursuant to s.5(2). I have set out the main submissions advanced by the applicant. I do not consider any submission by the applicant has been made out. I will deal in some detail with certain of them.

It was submitted that the deportation order was an improper exercise of the power in s.18 of the Migration Act particularly on the grounds that the exercise was alleged to be in accordance with a previously stated policy without regard to the merits of the case, and that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power. I consider that nothing has been shown to support either of these grounds.

It is clear that this Court has no power to substitute its views for the views of the Minister or to decide whether it would have come to the same decision as the Minister reached. 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.

There is nothing before me to suggest that, if it be relevant in connection with a deportation order made under s.18 of the Migration Act, any person who, whilst a prohibited immigrant, marries an Australian citizen could hold a reasonable expectation that because of that marriage, he would receive a permit under s.6A(1)(b) of the Migration Act.

I am satisfied that the statement of Mr. Meredith did not relate to a period before the deportation order was made. The note which I have set out refers to what would be done ". . . if d/o was signed by Minister". Once a deportation order is signed by the Minister it is made.

It was also submitted that some opportunity should have been granted to make further submissions after the deportation order was made but before the applicant was in fact deported and that this flowed from the statement of Mr. Meredith. Even if this be so this application has been brought and there is power to seek a revocation of a deportation order under s.20 of the Migration Act and some time has lapsed since the order was made. As I have said, I reject each of the applicant's submissions.

Counsel for the Minister raised other basic questions. He submitted that a prohibited immigrant did not fall within the words: "A person who is aggrieved by a decision to which this Act applies . . . " in s.5(1) of the Act.

The question whether an applicant is a "person who is aggrieved" by a decision within the meaning of s.5(1) was considered by Ellicott J. in Tooheys Ltd. v. Minister for Business and Consumer Affairs (19 August 1981, unreported). I accept, with respect, the analysis made in that case at pp.28-29. His Honour said that the expression " . . . should not in my view be given a narrow construction" and that "I am satisfied however that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public". I consider that a prohibited immigrant in respect of whom a deportation order has been made is clearly a "person aggrieved" within s.5(1) of the Act.

Counsel for the Minister also submitted that none of the provisions of s.5 of the Act applied to a decision by the Minister under s.18 of the Migration Act and that section gave the Minister a completely unfettered power. I do not agree with this submission. As I have said I consider that the provisions of s.5(1)(a) are not applicable because, as I said in Capello, (supra): "The rules of natural justice are not inflexible. I consider that s.5(1)(a) of the Act was not intended to create fresh obligations in regard to natural justice where they did not previously exist". The High Court had clarified the position in relation to natural justice in the exercise of the power in s.18 of the Migration Act. However, schedule 2 of the Migration Act exempts certain decisions under that Act from s.13 of the Act. Schedule 2 does not remove any decision under the Migration Act from the provisions of the Act. I consider that the Act vests a right in a person aggrieved to apply for review of a decision made under s.18 of the Migration Act where the power under that section is shown to have been improperly exercised within the terms of s.5(1)(e) of that Act. In such a case the Court may exercise its powers under s.16 of the Act.

In the matter before me I consider that no case has been made out under s.5 and, in particular, no improper exercise of the power conferred by s.18 of the Migration Act has been shown.

I therefore dismiss the application. I will hear any submissions upon the question of costs and in relation to the stay ordered on 16 October 1981.