Re Yunus Ates v the Honourable Mr John Charles Hodges, Minister of Immigration and Ethnic Affairs and the Commonwealth of Australia [1983] FCA 31; (1983) 67 FLR 449 Vg (3 March 1983)

FEDERAL COURT OF AUSTRALIA

Re: YUNUS ATES
And: THE HONOURABLE MR JOHN CHARLES HODGES, MINISTER OF STATE FOR IMMIGRATION
AND ETHNIC AFFAIRS AND THE COMMONWEALTH OF AUSTRALIA [1983] FCA 31; (1983) 67 FLR 449
VG No. 3 of 1983
Administrative Law - Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Smithers J.(1)

CATCHWORDS

Administrative Law - deportation order - application for Order of Review - nature and purpose of Minister's duty - duty to consider all the circumstances as a matter of reality not as formal exercise - failure to take into account a relevant consideration - extent to which applicant's deportation would prejudice pending claim for compensation in Victorian Supreme Court.

Administrative Decisions (Judicial Review) Act 1977 ss.5(1)(e), 15 and 16.

Migration Act 1958 s.18.

Immigration - Deportation order - Application for an order of review - Nature and purpose of Minister's duty - Duty to consider all the circumstances as a matter of reality not as formal exercise - Best interests of Australia - Failure to take into account a relevant consideration - Extent to which applicant's deportation would prejudice pending claim for compensation in Victorian Supreme Court - Interlocutory order - Migration Act 1958 (Cth), s. 18; Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(a), 15 and 16. A delegate of the respondent had made an order under s. 18 of the Migration Act 1958 (Cth) that the applicant be deported from Australia and pending deportation be held in custody. The applicant sought an order of review in respect of that decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 on the ground that the decision-maker had failed to take into account relevant considerations and had taken into account irrelevant considerations and sought an interlocutory order that pending the hearing he be released from custody.

Held: (1) The Administrative Decisions (Judicial Review) Act 1977 (Cth) was not intended to impose duties upon decision-makers additional to those to which they are otherwise subject according to law.

(2) The Migration Act 1958 (Cth) envisaged that the respondent would consider in relation to a prohibited migrant his particular circumstances in so far as they may be affected by making or deciding not to make an order for deportation.

(3) The applicant had a reasonable case of establishing that such consideration as was given by the delegate to his personal circumstances and the effect of the making of the order on him lacked reality as it appeared that the delegate had regard almost as the sole, and certainly as the dominant matter, to the fact that the applicant was a prohibited immigrant.

(4) The delegate had failed to consider the prejudice the applicant would suffer in his personal injuries claim or why it was said his presence in Australia would be imperative and the fact that the applicant had probably become a prohibited immigrant unwittingly.

(5) The Migration Act 1958 (Cth) must be administered in the best interests of Australia broadly regarded which embraces, on occasion and according to circumstances, the taking of decisions by reference to a liberal and compassionate outlook appropriate to a free and confident nation and conscious of its reputation as such.

(6) Application granted.

HEARING

1983, February 21, 22, 23; March 3. 3:3:1983
APPLICATION.

The applicant in proceedings for an order of review of the decision of the delegate of the respondent to deport him sought interlocutory orders that pending the hearing he be released from custody.

G. Johnstone, for the applicant.

R. Huttner, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Nicholas O'Donohue & Co.

Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.
T.J.G.

ORDER

1. The operation of the decision dated 4 January 1983 of the Minister for Immigration & Ethnic Affairs to deport the applicant be suspended and the applicant be no longer kept in custody pursuant to that decision or pursuant to the deportation order.

2. The abovementioned order is made on the following conditions:

(a) That the applicant's brother provide security by way of equitable charge of his residential property to the satisfaction of the Registrar in the sum of $5,000.
(b) That the applicant every Tuesday and Friday report in person to the officer for the time being in charge of the police station at Coburg in the said State of Victoria between the hours of 9.00 a.m. and 11.00 a.m. or such other hours as to be agreed by the Senior Migration Officer in charge of Residence Control in Melbourne.
(c) That upon his release the applicant take up residence at 28 Anketell Street, Coburg and notify the said Senior Migration Officer 24 hours in advance of any subsequent change from this address and of his new address upon any such change.
(d) That the applicant appear in person at the hearing of these proceedings.

3. The applicant have leave to amend the grounds of review to include a pleading that in the exercise of his discretion the Minister failed to take into consideration a relevant consideration, namely, the extent to which the deportation of the applicant would prejudice the prosecution to trial of the applicant's claim for compensation in respect of the injuries suffered by him on 21 August 1981.

4. The application for injunction pursuant to the Court's general powers under the Federal Court of Australia Act 1976 be reserved.

5. Costs be reserved.

6. Each party has liberty to apply. Application granted.

DECISION

The applicant seeks an interlocutory order that he be released from custody pending the hearing of an application by him for an order under s.16 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). That application is made in respect of an order of the delegate of the Minister for Immigration & Ethnic Affairs dated 4 January 1983, made under s.18 of the Migration Act 1958 (the Act), that the applicant be deported from Australia and a decision that pending deportation he be held in custody.

Relief is claimed mainly on the ground that the making of the order was an improper exercise of the power to order deportation under s.18 of the Act in that the delegate failed to take into account relevant considerations and took into account irrelevant considerations and acted by reference to a fact which was not a fact. It appears that the ADJR Act is not intended to impose duties upon decision makers additional to those to which they are otherwise subject according to law.

The question arising in the proceedings therefore will be whether in making the order for deportation the delegate was in reference to the exercise of his discretion to make or not to make the order, under a duty to take into account or not so to take into account, the considerations which the applicant specifies. The nature of that duty can, I think, be gathered from the observations of Stephen J. in Salemi v. The Minister for Immigration & Ethnic Affairs [1977] HCA 26; (1977) 14 A.L.R. 1 at pp.28 and 29 which are to the following effect:-
"It now becomes necessary to examine more closely the precise position of the prohibited immigrant and, in particular, one such as the plaintiff who has become a prohibited immigrant by "overstaying" the limited duration of his temporary entry permit. He does not thereby commit any one of the numerous offences which the Act creates . . . However, by "overstaying" and thus becoming a prohibited immigrant, a person becomes subject to arrest without warrant and to detention in custody (s.38). If a deportation order is made the prohibited immigrant then becomes a deportee and the more stringent provisions as to detention which are provided for in s.39 become applicable to him.
The provisions of s.38(3), as well as the absence of any offence of being a prohibited immigrant, throw some light upon the function of the Minister in exercising the power conferred by the words "may order the deportation" in s.18. Under s.38(3) a prohibited immigrant who has been arrested is to be brought before a prescribed authority who inquires as to his status and, if satisfied of reasonable grounds for supposing him to be a prohibited immigrant, may authorize his detention "for such period, not exceeding seven days from the date of the authorization, as the prescribed authority is satisfied is reasonably required in order to enable the Minister to consider whether that person is a prohibited immigrant and whether a deportation order should be made in respect of him". A prescribed authority may extend this period of detention (s.38(4)) but at the end of the period the person so detained must be released (s.38(5)) unless in the meanwhile he is informed that a deportation order has been made against him (s.38(6)).
Certain conclusions follow from this examination of the Act. The terms of s.38(3) clearly contemplate that deportation is not to be the inevitable consequence of the apprehension of a prohibited immigrant. The Minister is to be given time to consider "whether a deportation order should be made in respect of him"; and that consideration will not be affected by any fear that in failing to order deportation the Minister will be countenancing a continuing offence - being a prohibited immigrant is no offence. However, one might suppose that if the Minister decides against deportation, he will usually then issue at least a temporary entry permit rather than leave the immigrant in question in the limbo represented by the status of an undeported but prohibited immigrant.

. . .
In short, I conclude that, in the case of an "overstayed" prohibited

immigrant such as the plaintiff, the Act recognizes that deportation will not be the automatic sequel to apprehension but that, on the contrary, there will be cases in which the Minister will decide not to deport, despite the existence of the status of prohibited immigrant. The Act requires that in each case the Minister should give consideration to whether or not in all the circumstances the prohibited immigrant should be deported but does not contemplate any form of independent inquiry nor any actual hearing before the Minister himself.
If, then, it be the task of the Minister to consider for himself the circumstances of the case and to form his own conclusion as to whether or not a deporation order should be made, it might be supposed that the Minister would not consciously deny himself access to information bearing upon that question which a prohibited immigrant was anxious to supply and of some at least of which the Minister might be unaware. The information which might thus be furnished by the prohibited immigrant would, no doubt, be likely to be limited to his own personal situation; to the particular effect upon him of the making of a deportation order, perhaps involving some feature of special hardship. But there is no reason to suppose that matters such as these are not proper for the Minister to pay regard to, together with others, in arriving at the decision which the Act calls on him to make."

It is to be observed that the present state of the law differs from that referred to by his Honour in that as from October 1979 it became an offence for an immigrant to become a prohibited immigrant upon the expiration of his temporary entry permit. The offence carries a penalty of a fine of $1,000 or six months imprisonment, see s.27(1) of the Act. But I do not think that this factor would undermine his Honour's conclusions that the Act does not contemplate that deportation is the inevitable consequence of the apprehension of a prohibited immigrant, that the Minister is required to consider whether a deportation order should be made in respect of a prohibited immigrant that should the Minister decide against making an order for deportation, the status of being a prohibited immigrant may be brought to an end by appropriate Ministerial or departmental action, and that the Act requires that in each case the Minister should give consideration to whether or not in all the circumstances the prohibited immigrant should be deported.

The duty to consider the question in the context of all the circumstances is of course quite a separate matter from the question of whether natural justice should be afforded to the immigrant or whether the Minister is required to act reasonably or even fairly. For the purposes of this application I do not enter upon either of these questions. I do conclude, however, that just as it is presumed that Parliament does not intend injustice or authorise it (per Barwick C.J. in Salemi's Case, (supra) at p.5), it does intend that the Minister shall consider, in relation to the immigrant, his particular circumstances in so far as they may be affected by making or deciding not to make an order for deportation. Such a minimum requirement appears to me to be inherent in the conferring of the discretion in the context of the Act. And it is to my mind equally clear that the consideration required of the Minister is consideration as a matter of reality, not merely as an arid formal exercise. Such reality is unlikely to exist if there is no proper appreciation of the true nature and purpose of the exercise.

These conclusions, do not, in my opinion, conflict with what was said in The Queen v. Australian Broadcasting Tribunal Ex Parte 2HD Pty. Ltd. [1979] HCA 62; (1979) 144 C.L.R. 45 at p.50, to which I was reffered, namely,
"The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute."
The conclusions in question would seem to flow from the nature and purpose of the discretion conferred upon the Minister by the Act.

In this case it appears to me that the applicant has a reasonable case of establishing that such consideration as was given by the delegate to his personal circumstances and the effect of the making of the order would have and did lack reality. It would seem that the delegate did not appreciate the nature and extent of his duty to take those circumstances into account.

The impression created by the stated reasons for the decision is that the delegate regarded, almost as the sole, and certainly as the dominant matter the fact that the applicant was a prohibited immigrant. Thus, in paragraph 11 of his reasons for the decision he states that the applicant became a prohibited immigrant upon the expiration of his temporary entry permit and no further entry permit had come into force, and in paragraph 12 that in that situation "his continued stay in Australia could not be countenanced.".

Reading those two paragraphs it may be inferred that the delegate took the view that the expiry and non-renewal of the entry permit was the end of the matter. But, of course it was at that point that his consideration of the immigrant's personal circumstances should have commenced. It would be reasonable to infer that the delegate did not understand this. It is perhaps not surprising that this may have been so. The Act is expressed in terms apt to deal with the necessity to deal swiftly and decisively with prohibited immigrants. The national interest so requires. Such persons may impose upon Australia high risks of serious, anti-social behaviour concerning the safety of the population. For such cases the strong arm provisions of the Act are essential and are perhaps the most exercised. But the Act does not ignore the prohibited immigrant who is of a different class. The present applicant is an example, a young man of good character in respect of whom there is reason to think that, so far as he was concerned, his becoming a prohibited immigrant was fortuitous and due to the language and educational inadequacies of himself and his brother. It is in respect of such a person that the duty to consider whether an order for deportation should or should not be made is in point, and his personal circumstances and his legitimate interests as they are likely to be affected by a deporation order, are most relevant.

In this case the circumstance of paramount importance in considering the applicant as a person is that he was seriously and permanently injured on 21 August 1981 when he was struck by a motor vehicle whilst crossing a road, and that those injuries have caused great pain, much distress, left him with pain and limitation of movement of his left hip, early signs of secondary arthritis and with long term prospects of returning to a useful type of physical work which are described as "not very bright". Arising out of this disturbance of his bodily condition he claims to have a right at common law for damages to compensate him for his injuries and loss of prospects. Such compensation is what the law may award to him offset his economic and personal disaster. But such compensation is to be had only on the establishment of his legal right in the Courts of Victoria. Such facts as appear indicate that the defendant does not admit liability. As a result the prospect is of a case before a Judge or Jury in which the issues of negligence and contributory negligence and extent of damages may be hotly contended. The conduct of such a case in the absence of the main witness, namely the applicant, would be to court disaster. The delegate may well not have known all this, but he had been told by the applicant's solicitors that the applicant's presence in Australia pending negotiations for settlement was desirable, and that their instructions were, that if no reasonable settlement sum offer is made for damages, they were instructed to issue proceedings immediately and, that it is "imperative that the applicant remain in Australia until such time as his common law claim is finalised . . . ".

This common law claim was, in the circumstances, an aspect of the man himself. It was said to promise a possible verdict of $250,000. And even allowing for the exigencies of litigation it was obviously a matter of superlative importance to the applicant that his right of action be respected and taken into account and the possibility of its frustration or prejudice by his absence in Turkey be taken into account. I say obviously because if the effect on the applicant of his deportation is considered at all, the circumstances of his injury, his potential right of action for damages and the effect on the pursuit of that right in the Courts of his absence from Australia, are so closely related to such considerations that reference to each of such matters can be seen to be vital to it.

In a sense the officer advising the delegate did take those matters into account. In doing so however he rejected the statement of the applicant's solicitors that it was imperative that the applicant remain in Australia until his claim was finalised. He sought information on the point from the State Accident Insurance office, the insurer of the defendant to the personal injury claim. He asked whether it was necessary for the applicant to be in Australia for his claim to be finalised. He received an answer in the negative, and this, without more was accepted as establishing that there was no reason for the applicant to be in Australia to finalise the claim even if contested. The fact that the question was asked indicates that the officer regarded the question as relevant to the making of a deportation order. But the circumstance, that in the face of the assertion by the solicitors to the contrary the officer was satisfied to act on what the insurers said, throws great doubt on the reality of such consideration as he gave to the matter.

A moment's consideration would have revealed to him that in a matter concerning the rights of the applicant against the defendant, in which the defendant's insurers were the real defendant, and whose financial interests were in total conflict with those of the applicant, it was odd to make the only enquiry of those insurers. It would also have revealed to him that there was a great gulf between there being, in theory, no need for the applicant to be in Australia for him to finalise his claim, and the prejudice or even frustration that such a claim might suffer if the applicant were not avaiilable to give evidence at the trial. The really significant point was this latter one. Yet this question was not asked.

Having made an enquiry of the defendant's insurers it is more than suprising that he did not make an enquiry of the applicant's solicitors as to why they regarded it as imperative that the applicant should remain in Australia to finalise his claim. Such an omission indicates that to the officer's mind it was adequate for him to take merely some procedural step on the matter of the importance to the applicant of being in Australia to pursue his claim. An officer really considering the substance of the effect of deportation on the fate of the applicant's compensation claim could not have failed to realise that the matter went deeper than was indicated in the answer of the State Insurance Office. Common sense would have prompted him to ask the applicant's solicitor why, to pursue his claim the applicant's presence in Australia was imperative. Of course a person not really interested in considering the applicant's personal difficulties, and therefore not in reality "considering" them in the context of the question whether the Minister should be influenced by them and possibly refrain from making the order, might well be satisfied to "go through the motions" and leave it at that.

The answer to all this may lurk in his advice to the delegate concerning the matter of the applicant's claim. It indicates that in the officer's mind the applicant's capacity to pursue his legal claim was to be considered only as going to the question as to whether or not it affected the applicant's "ineligibility to remain here". If that was what was involved what was done might well have been more than enough. That of course would be a misconception.

There is ground for thinking that the Delegate may also have been under such a misconception. Thus in his statement under s.13 he refers to the car accident as a result of which he "apparently suffered certain injuries". Anybody interested in them could hardly have failed to appreciate that they were very serious injuries. And that was an important consideration. The delegate notes that the appliant's solicitors advised that as a result of the accident they were instructed to issue a personal injury claim on the applicant's behalf. Then certain correspondence and the advice of his officer are referred to. Nowhere save in this way does he indicate any interest in the litigation. As pointed out above the grounds of his decision refer merely to the existence of the applicant's status as a prohibited immigrant. It is clear that the delegate was insufficiently interested to himself ask, "why do they say that to finalise the applicant's claims, his presence in Australia is imperative"? I find it hard to think that a Delegate considering, as a matter of reality rather than form, the situation of the applicant in relation to his important claim would have failed either himself to realise the prejudice the applicant would suffer in the litigation, or to enquire why it was said on his behalf that his presence in Australia would be imperative. It would be strange, if interested in the problem, he would not have realised that to rely on information obtained from the applicant's adversaries on the matter was fraught with peril and indeed hardly the right thing to do on the part of a department desirous of acting justly. This could be written much more strongly.

There are other matters which indicate that the applicant's circumstances could affect a decision to deport or not to deport. In this case the foregoing observations have to be considered against the background that the applicant is a young person of good character and that it is quite likely that his status of prohibited immigrant was acquired to some extent unwittingly and at a time when it was his belief that an application for an extended permit was under consideration. It was in connection with an intention to apply for such extension and a change of status that on 3 August 1981 he paid the $50 fee to the Department. The acceptance by the Department of his fee together with the stamping of his passport and delivery of a receipt marked "Ch. of Status . . . $50" might well have had significance to the applicant which it did not have to the Department. In any event it was a departmental act that ought not to have been ignored. However, it is not mentioned in the official report to the Minister's Delegate or by him. It is more than likely that this feature and some error on the part of his brother had left the applicant believing his status was acceptable to the respondent and without a realization of his new status as from 7 August 1981. It was but 14 days after this that he received his injuries and for some time thereafter he was obviously unable to attend to business.

It is apparent that the serious injuries which the applicant suffered went to the integrity of his whole body and are likely to prejudice greatly the use of it for all of his life in the only money earning activity before him. This being something that happened in Australia, and there being a legal right to seek compensation designed to make up to him this life long disability, it is clear that in a real consideration by the Minister or his delegate of the circumstances of the applicant as bearing on his deportation, the practical effect upon his rights of being out of the country while his case is brought to trial would loom large in their minds. On the evidence before me however, the clear inference is that it did not.

Of course, prima facie a prohibited immigrant may be deported on that ground alone. But in the administration of good government there is not only room, but a legal duty, to consider, even, on occasion with compassion, the circumstances of particular cases. The prima facie strictness of the law is designed to achieve population security and national security. That strictness is to be justified also on the basis that, in the area of entry to this country, the law may be seen to be strictly enforced. But in this case there is no security or even economic consideration. There is in all probability no deliberate attempt to subvert the law. On the other hand the applicant is a person who has suffered a grievous ill the only recompense in respect of which probably depends on his presence in Australia to conduct his case. The law must be administered by the Minister in the best interests of Australia. So to do extends to Australia's interests broadly regarded and embraces, on occasion and according to circumstances, the taking of decisions by reference to a liberal and even compassionate outlook appropriate to a free and confident nation and conscious of its reputation as such. Thus in an unusual case such as this, where disaster has befallen a prohibited immigrant and time is sought to enable him properly to arrange his affairs and to take action to obtain such redress as the law allows in relation to his permanent disability, such a concession does not seem outside the bounds of proper administration of the Law. To my mind it is hardly to be doubted that if as a matter of reality consideration were given to the circumstances, there would be more evidence of it. To give him time will not involve any risk to the community on any security, political or economic consideration. Of course once it appears that he will be in Australia for the trial the chances of an early settlement are immeasurably increased.

Accordingly, it is my view, that the applicant has a reasonable chance of establishing at the hearing of this application, that in the exercise of his discretion the Minister's delegate failed to take into account a relevant consideration, namely the extent to which the applicant's deportation would from the point of view of practicality and reality prejudice the applicant's chances of obtaining proper redress at law in Victoria for the past and future pain, disability and loss which the applicant has suffered and will permanently suffer. In this event s.5(1)(e) of the ADJR Act would be satisfied.

I give leave to amend the grounds of review already pleaded if this be necessary to support this view at the hearing. In the circumstances, therefore, it is proper for me to exercise the powers conferred on the Court by s.15 of the ADJR Act. Nothwithstanding that an undertaking has been given by the respondent that the applicant will not be deported pending the hearing of these proceedings I think that to support an order releasing the applicant I should suspend the operation of the existing deportation order. I therefore order that, until the hearing of these proceedings or further order, the applicant be released from custody as a deportee. I make this order on the following conditions, namely,
(a) That the applicant's brother provide security by way of equitable charge of his residential property to the satisfaction of the Registrar in the sum of $5,000.
(b) That the applicant every Tuesday and Friday report in person to the officer for the time being in charge of the police station at Coburg in the said State of Victoria between the hours of 9.00 a.m. and 11.00 a.m. or such other hours as to be agreed by the Senior Migration Officer in charge of Residence Control in Melbourne.
(c) That upon his release the applicant take up residence at 28 Anketell Street, Coburg and notify the said Senior Migration Officer 24 hours in advance of any subsequent change from this address and of his new address upon any such change.
(d) That the applicant appear in person at the hearing of these proceedings.

I also order that liberty be reserved to each party to apply as he or it may be advised. I reserve the costs of the proceedings.

I reserve the applicant's claim for an injunction pursuant to the Court's general powers under the Federal Court of Australia Act 1976. I give liberty to apply in respect thereof if circumstances arise in which such an injunction were thought to be necessary.

I suspend the operation of the decision dated 4 January 1983 of the Minister for Immigration & Ethnic Affairs to deport the applicant and I order that the applicant be no longer kept in custody pursuant to that decision or the order for deportation made in respect thereof.

As to the balance of convenience I would explain that of course in my view the balance of convenience is all one way. To keep the applicant under detention until the hearing of these proceedings will be of no benefit whatever to Australia or the Australian community. To release him will restore to him a precious measure of liberty and will relieve him of the obligation to pay $50 a day for being accommodated by the Crown.