Re Hans Jurgen Blunk v the Minister of Immigration and Ethnic Affairs [1983] FCA 6; (1983) 66 FLR 6 (3 February 1983)

FEDERAL COURT OF AUSTRALIA

Re: HANS JURGEN BLUNK
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS [1983] FCA 6; (1983) 66 FLR 6
No. G 6 of 1983
Administrative Law

COURT

FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Administrative Law - prohibited immigrant - application to stay deportation order - application for release from custody pending final determination of order of review - matters to be considered- weak applicant's case - application refused

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

Migration Act 1958 ss. 6A(1)(b), 7(3), 18, 27(1)(ab) and 39

Administrative Law - Prohibited immigrant - Application to stay deportation order - Application for release from custody pending final determination of order to review - Matters to be considered - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 15 - Migration Act 1958 (Cth), ss. 6A (1)(b), 7(3), 18, 27(1)(ab), 39. The applicant entered Australia on a temporary entry visa endorsed with the words "employment prohibited". Prior to the expiry of that visa the applicant married an Australian woman. He subsequently applied for a change of status to that of a permanent resident and, on the same day, applied for a further temporary entry permit. He was granted a temporary entry permit, expiring on 5th January, 1982.

In December 1981 the wife gave information to the Department of Immigration and Ethnic Affairs to the effect that the marriage had been one of convenience only and designed to enable the applicant to stay in Australia. She stated that the marriage had irretrievably broken down and that she intended to apply for a dissolution of marriage.

On 15th January, 1982, the applicant was told by the department that his eligibility for change of status no longer existed as his marriage had irretrievably broken down. He was told he would have to leave Australia.

The applicant obtained work and had been in work for about twelve months (or longer) by the time of hearing.

The applicant's application for change of status was rejected by the Minister on 16th June, 1982. The applicant put a case to the Immigration Review Panel. The Minister's decision (after findings were made by the panel) was notified to the applicant by letter from the Minister on 14th December, 1982. The application was refused.

The applicant then brought proceedings before the Federal Court seeking a review pursuant to s. 5(1) of the Administrative Decisions (Judicial Review) Act 1977, the review being of the decisions of the Minister of 16th June and 14th December, 1982. He also sought an interlocutory order that he be released from prison and it was with this application that Morling J. dealt.

Held: (1) In dealing with applications for interlocutory relief by deportees in custody, it is always a most compelling consideration that an applicant is in gaol. The court should be quick to grant interlocutory relief in such a case unless there are strong grounds for his being kept in custody.

Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd. [1968] HCA 1; (1968) 118 CLR 618; Piroglu v. Minister for Immigration and Ethnic Affairs [1981] FCA 78; (1981) 55 FLR 99, referred to.

(2) An equally, if not more, important consideration is the circumstance that the applicant is now a prohibited immigrant under s. 7(3) of the Migration Act, and that his detention is lawful. Such a case is radically different from those in which a person is charged with a criminal offence but where that offence has not been proved.

Piroglu v. Minister for Immigration and Ethnic Affairs [1981] FCA 78; (1981) 55 FLR 99, applied.

(3) It is not possible to read s. 6A of the Migration Act 1958 so as to cast upon the Minister a statutory obligation to issue an entry permit to a person merely because he becomes the spouse of an Australian citizen.

(4) The application should be refused.

HEARING

Adelaide, 1983, February 3. 3:2:1983
APPLICATION

The applicant applied for an interlocutory order that he be released from custody pending the hearing of an application for an order to review an administrative decision.

P.J. Arthur, for the applicant.

W.A. Mesiti, for the respondent Commonwealth Crown.

Solicitors for the applicant: Duncan Groom Carabelas & Hannon.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor. P.H. MORRISON

ORDER

1. That the application for interlocutory relief be dismissed.

2. That the matter be stood over to 9:30 on 8 February 1983 for directions.

DECISION

This is an urgent matter as the applicant seeks an interlocutory order that he be released from the prison in which he is presently detained. It is therefore highly desirable that I should determine it as expeditiously as possible. As I have formed a firm view about the outcome of the proceedings, I propose to express that view without reserving my decision. I am much indebted to Mr Arthur for his thorough and able submissions and I should say at once that he has put every argument available to be advanced in support of the application.

The applicant seeks an order of review pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 in respect of decisions made by the respondent minister on 16 June 1982 and 14 December 1982. The decisions were to refuse requests made by the applicant that he be given resident status in Australia. I shall refer to the nature of these decisions in more detail later in these reasons.

At this stage of the proceedings, the applicant seeks interlocutory relief staying proceedings under the minister's decisions. He also seeks interlocutory orders that he be released from Adelaide gaol where he is now being kept and that he be admitted to bail. If I had been persuaded that the applicant was entitled to interlocutory relief, I would have granted relief in a form somewhat different from that in which it is sought. I do not think that the granting of bail would be appropriate in proceedings of this kind; rather, I think the remedy would be an order, in appropriate terms, restraining the minister from detaining the applicant. However, nothing turns on this matter because, had I been minded to grant interlocutory relief, I am confident an order could have been framed which would have met the circumstances of the case.

The proceedings arise in the following way. The applicant, Mr Blunk, entered Australia on 5 June 1981, being then in possession of a valid temporary entry permit. The permit was valid for a stay of three months. It seems, on the evidence presently before me, that had Mr Blunk _ who hails from West Germany _ applied to the authorities to enter Australia as a migrant, he would have been rejected because of his occupation as a clerk. No doubt it was for that reason that when he applied for his entry permit he applied for a permit for purposes of tourism only. The permit was endorsed 'employment prohibited'.

After he had been in Australia for some time, Mr Blunk married Karin Hannelore Antoun in Adelaide on 10 August 1981. This lady was and is an Australian citizen. On 13 August 1981 he submitted an application for change of status to that of a permanent resident and applied on the same day for a further temporary entry permit. He was granted a further temporary entry permit valid for a stay until 5 January 1982.

On 18 December 1981 the applicant's wife called at the office of the Department of Immigration and Ethnic Affairs in Adelaide and informed an officer of the Department that she intended seeking a divorce from her husband. She said that she had already changed her name by deed poll back to that of Antoun. She claimed that a next-door neighbour had brought the applicant to her when his visitor's entry visa was about to expire and suggested that marriage to the applicant was the only method by which he could remain in this country. She told the departmental officer that she had been lonely and that she saw marriage as offering her another chance of happiness. After eight days she agreed to marry the applicant. She claimed that she separated from her husband when he left her at her request on 26 October 1981. She further claimed that the marriage had irretrievably broken down and that she was intending to apply for a dissolution of the marriage as soon as she was able to do so.

I stress that the above is a hearsay version of Mrs Blunk's account of the marriage, and whether it is correct or not remains to be ascertained when these proceedings go to a hearing on the merits.

Mr Blunk obtained employment with the Australian National Railways at Mallala, and the evidence indicates that he has been engaged in that employment for at least 12 months and probably longer. On 15 January 1982 he called at the Adelaide office of the Department of Immigration and Ethnic Affairs and spoke to an officer who informed him that, because his marriage had irretrievably broken down, his eligibility for a change of status no longer existed, and he would have to leave Australia.

On 21 April 1982 the then Minister of State for Immigration and Ethnic Affairs, Mr Macphee, wrote to Senator Bolkus who, I assume, was seeking to assist the applicant, and informed him that as the applicant was a prohibited immigrant he should leave Australia immediately. The Minister informed the senator that if there were other considerations or additional factors which would materially strengthen the applicant's application to remain in Australia as a permanent resident, the applicant could prepare a case for special consideration by the Immigration Review Panel. A leaflet setting out the functions of that panel was forwarded to the senator.

Subsequently the applicant did avail himself of the opportunity of putting his case to the Immigration Review Panel. In his submission to the Panel he gave his account of the marriage. If his account is to be accepted, the marriage was not illusory; he saw his wife quite frequently before the marriage ceremony; he lived with her as man and wife for some time after the marriage, and, according to him, it was the circumstance that his place of employment was a railway camp at Mallala which seems to have led his wife to come to the view that their marriage was over. He said he was upset by her change of attitude and attempted to see her to persuade her to a different point of view. Apparently she has not responded to his overtures. He says he entered into the marriage out of genuine regard and affection for his wife and that he had no reason to believe that his wife married him for any reasons other than ordinary love and affection. I have not heard oral evidence from either the applicant or his wife and it is not for me on the hearing of this application to express any view one way or the other as to the genuineness of his statements as to the marriage. For the purposes of this application, I propose to accept his account of the reasons for the marriage and also that he genuinely wishes to make it work.

In his decision of 16 June the minister said, inter alia:

'Your application has been considered by the Minister for Immigration and Ethnic Affairs under section 6A(1)(b) of that Act which does allow for the grant of residence to the spouse of an Australian citizen. However, Mrs Blunk has provided information which leads the department to believe that your marriage is one of convenience, undertaken for the sole purpose of gaining resident status for yourself in Australia. In those circumstances the Minister for Immigration and Ethnic Affairs has decided not to approve your application for resident status.

As your temporary entry permit has expired, you are now a prohibited immigrant. You should make arrangements to leave Australia and should notify this office within three days of the date of this letter of your departure plans. These should provide for departure within three weeks.

Whilst the Minister is satisfied from the information presented that you are not entitled to the grant of resident status, should there be other compelling factors which would materially substantiate and strengthen your application, you may wish to present a case to the Immigration Review Panel for special consideration. I have enclosed a leaflet and a form of Request for Review if you wish to do this.'

It will be remembered that it was after the sending of that letter by the minister to the applicant that he did indeed submit his case to the Immigration Review Panel.

The minister's decision of 14 December 1982 was in the form of a letter addressed to the applicant's solicitors. The letter read, in part, as follows:

'Mr Blunk's case has been considered by the Immigration Review Panel. The panel had before it his Request for Review and attachments thereto, together with information from the department concerning the legislation, policy and other criteria applicable to persons who enter Australia as visitors and subsequently seek to remain permanently.

I have examined the information presented by you and Mr Blunk and studied the findings of the panel. However, I have decided that the decision to refuse his application is to be maintained.

Mr Blunk should now make arrangements for his departure from Australia within 21 days of the date of this letter. However, if he possesses a valid entry permit authorizing his stay beyond that date, he need not depart until that permit expires.

I should mention that if he does not depart either within the 21 days specified in the previous paragraph or before the expiry of any valid temporary entry permit he may hold, provision exists under the Migration Act to enforce his departure by ordering his deportation.'

It is indisputable that the applicant is a prohibited immigrant. Section 7(3) of the Migration Act provides, inter alia, that upon the expiration of a temporary entry permit, the person who was the holder of a permit becomes a prohibited immigrant unless a further entry permit applicable to him comes into force upon the expiration of the earlier permit. Section 18 gives the minister power to order the deportation of the applicant. The minister has exercised that power and has signed a deportation order dated 25 January 1983. By virtue of s.27(1)(ab) of the Act, the applicant is deemed to be guilty of an offence and s.39 authorises his arrest and detention. In fact, the applicant was arrested on 28 January and placed in Adelaide Gaol pending his deportation.

I turn now to consider the grounds of his application for an order of review. He claims that he is entitled to an order of review of the minister's decisions on the grounds that:

(a) a breach of the rules of natural justice occurred in connection with the making of the decisions;

(b) the making of the decisions was an improper exercise of the power conferred on the minister;

(c) the minister's decisions were induced or affected by fraud; and

(d) there is no evidence or other material to justify the making of the decisions.

Mr Arthur made it clear that no allegation of fraud was made against the minister; rather it was suggested that Mrs Blunk had been guilty of conduct in the nature of fraud in making her representations to the minister.

There is some authority for the proposition that in dealing with applications for interlocutory relief by deportees who are held in custody, the court should apply the well known principles referred to in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 168 C.L.R. 618. See Nural Tiroglu v The Honourable Ian Macphee, Minister for State for Immigration and Ethnic Affairs and the Commonwealth of Australia (18 June 1981) per Northrop J. I am not at all sure that this proposition is always applicable in proceedings of this kind. In my opinion it is always a most compelling consideration that an applicant is in gaol and I think the court should be quick to grant interlocutory relief in such a case unless there are strong grounds for him being kept in custody.

Nevertheless, it does seem to me that it is necessary in proceedings of this kind to have some regard to the applicant's prospects of success in the proceedings. No doubt the applicant's evidence has been put together with some haste because of the urgency of the matter but I must say that, as at present advised, I would have thought that the only conceivable ground upon which the current proceedings could succeed would be the first ground that I have enumerated above, namely that there was a breach of the rules of natural justice in the making of the decisions. But on the evidence in its present form even the first ground will be very difficult to substantiate. Mr Arthur argued that the applicant had not been given an opportunity by the minister to reply to his wife's allegation that the marriage had irretreivably broken down. However it seems to me that although there may have been some informality in the manner in which the applicant was informed of the considerations which were being urged against his application by his wife, he nevertheless had an adequate opportunity to present his case to the minister. On the information presently before the court it does not appear to be a strong applicant's case.

An equally, if not more, important consideration is the circumstance that the applicant is now a prohibited immigrant. The provisions of the Act to which I have referred make it clear that the detention of the applicant is lawful. A case such as this is radically different from a case in which a person is charged with a criminal offence but where that offence has not been proved. In such a case the granting of bail is very common indeed. As Northrop J. pointed out in Nural Tiroglu v The Honourable Ian Macphee (supra) a case of the present kind is much different from a case in which a person is held in custody pending his trial. His Honour said in that case:

'The policy of the Migration Act is clear. Prohibited immigrants should not be left at large in the community pending deportation unless the minister or an authorised officer exercises his discretion in accordance with section 39.' I respectfully agree with his Honour's observation.

However, I must confess to having considerable sympathy for the applicant. So far as the evidence shows, he is not a member of the criminal classes. There is evidence that the German police are 'looking for' the applicant. Information to that effect was given to an officer of the Department by the Consulate General of the Federal Republic of Germany but, in spite of a request by the officer for details of that statement, nothing has been forthcoming. I therefore entirely disregard this matter in reaching my decision.

Nevertheless, the fact is that the applicant is a prohibited immigrant. He has no entitlement to stay or work in this country. Being a prohibited immigrant he is subject to the sanctions imposed by the Migration Act. Nor can I say that the minister is unreasonable in requiring the applicant to be kept in custody pending his deportation. There is nothing in the evidence to suggest that the applicant will abscond but it would not be unreasonable for the minister to take the view that he might do so.

A further difficulty in the way of granting the interlocutory application is that even if the applicant succeeds on the final hearing it does not follow that he will cease to be a prohibited immigrant. Mr Arthur argued that a person who is the spouse of an Australian citizen is entitled as a matter of law to be granted an entry permit pursuant to s.6A(1)(b) of the Migration Act. He contended that if the minister reconsiders the applicant's request for an entry permit he will be obliged as a matter of law to grant it because the applicant is indubitably legally married to an Australian citizen. If this is correct, it would follow that the minister would also be obliged to order the release of the applicant from prison.

I cannot accept this argument. It is not supported by any authority, and I do not think it is possible to read s.6A so as to cast upon the minister a statutory obligation to issue an entry permit to a person merely because he becomes the spouse of an Australian citizen.

For these reasons I refuse the application for interlocutory relief. However, this is clearly a case which should be heard expeditiously and I shall give appropriate directions to ensure that the matter comes to trial at the earliest opportunity.

I note that the minister by his counsel undertakes that no step will be taken to deport the applicant from Australia without giving at least 72 hours notice to the applicant's solicitors.

I would hope that if this case takes any length of time to come to trial the minister will take further steps to inform his mind as to the risk of the applicant absconding. If he comes into possession of information which leads him to believe that there is no risk of that happening then he will no doubt consider whether he should exercise his power under s.39(7) of the Migration Act to order the release from prison of the applicant.

I will stand the further hearing of the matter over until 9.30 a.m. on Tuesday, 8 February. Whilst I do not formally direct the Minister to furnish a statement of the reasons for his decisions under s.13 of the Administrative Decisions (Judicial Review) Act, I would expect, on the facts of this case, that such a statement will be given to the applicant's solicitors by 2 p.m. on Monday, 7 February.

If Mr Arthur desires his client to be in Court next Tuesday I or the Registrar will make an order requiring him to be brought to Court.