Re Radouane Rifki v the Minister of Immigration and Ethnic Affairs [1983] FCA 7 (3 February 1983)

FEDERAL COURT OF AUSTRALIA

Re: RADOUANE RIFKI
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WA G4 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Administrative Law - deportation order - application for Minister to give reasons for decision under Administrative Decisions (Judicial Review) Act 1977 s.13(5) - application for stay pending hearing - power of Court under Federal Court of Australia Act 1976 s.23 to grant interlocutory injunction to restrain deportation by the respondent

Administrative Decisions (Judicial Review) Act 1977 ss.13(1),13(5)

Federal Court of Australia Act 1976 s.23

HEARING

PERTH
3:2:1983

DECISION

The urgency of this application requires that it be dealt with now.

The applicant seeks a review of what is alleged to have been a decision by the respondent on 26 January 1983 refusing to furnish to the applicant a statement of reasons for a decision made by the respondent on 16 November 1982.

That earlier decision was made pursuant to s.18 of the Migration Act 1958 and ordered the deportation of the applicant as a prohibited immigrant.

That earlier decision is not yet the subject of any application to this Court. Counsel for the applicant acknowledged that whether any steps are taken to review the earlier decision is dependent upon obtaining reasons for it, hence the present application. Counsel for the respondent did not dispute the proposition that a decision to deport made pursuant to s.18 of the Migration Act is a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies, hence a decision amenable to the jurisdiction of the Federal Court under the provisions of the latter Act.

The urgency of the matter is that the applicant is to be deported tomorrow, Friday 4 February 1983, an act which will have the consequence of returning him to Morocco whence he came.

Section 13(1) of the Judicial Review Act provides that where a person makes a decision to which this section applies, any person who is entitled to make an application to the court under s.5 in relation to the decision may request the decision-maker to furnish a statement in writing setting out his findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

The applicant contends that on 25 January 1983, through his solicitors, he sought a written statement of reasons for the deportation decision made 16 November 1982.

Section 13(1) of the Judicial Review Act must be read in conjunction with s.13(5). The latter sub-section empowers a person to whom a request for reasons is made under sub-section (1) to refuse to prepare and furnish a statement if in the case of a decision, the terms of which were recorded in writing and set out in a document furnished to the person who made the request, the request was not made on or before the 28th day after the day on which that document was furnished.

The respondent relies upon the department's letter of 16 November 1982 as recording the terms of the decision to deport the applicant hence argues that the request was not made within the time specified by s.13(5) of the Act.

The applicant contends that the letter of 16 November 1982 does not constitute a record for the purposes of s.13(5) and further argues that the sending of the letter dated 16 November 1982 to the applicant's solicitors was not the furnishing of that document to the applicant.

Those are matters about which there has been some discussion by Counsel but which have not yet been fully argued. The main thrust of counsels' submissions to date has been whether this Court has power to restrain the Minister from deporting the applicant until the determination of this application and, if it has that power, whether it should exercise it.

Section 15 of the Judicial Review Act empowers the Court to suspend the operation of a decision the subject of an application and to order a stay of any proceedings under that decision. Such an order is, of course, of no assistance to the applicant in relation to what is proposed to take place tomorrow. And that is because the decision presently before the Court is simply the decision not to furnish reasons.

But it has been argued by counsel for the respondent that the existence of s.15 is by implication an exclusion of any more general power in the court to restrain the deportation by the respondent. If any broader power exists, it is to be found in s.23 of the Federal Court of Australia Act 1976. (I express no view of the application of s.16 of the Judicial Review Act at the interlocutory stage.) Section 23 reads:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate".

In Piroglu v. Minister for Immigration and Ethnic Affairs (1981) 4 ALD 323, Northrop J. held that the Federal Court had power under s.23 of its Act to make an order in the nature of an interlocutory injunction to release the applicant from custody pending the hearing of an application under the Judicial Review Act to review a decision made to deport the applicant. The operation of the deportation order itself had already been suspended, it would appear, pursuant to s.15 of the Judicial Review Act. In the circumstances his Honour declined to grant the application but what is important for the purpose of today's proceedings is his Honour's acceptance of his power to make an order under s.23 of the Federal Court Act, notwithstanding the existence of s.15 of the Judicial Review Act.

In Brisbane Gas Co. Ltd. v. Hartogen (1982) ATPR 40-304 Fitzgerald J. was concerned with an application seeking interlocutory orders restraining the respondents from dealing with certain shares pending the hearing. It was argued that s.80 of the Trade Practices Act 1974 was the exclusive source of the Court's power to grant an injunction in proceedings under that Act.

Fitzgerald J. declined to accept that submission. Having considered the judgment of the High Court in Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission [1981] HCA 48; (1981) 55 ALJR 614, his Honour held that references in that judgment to s.80 of the Trade Practices Act constituting the Federal Court's exclusive charter to grant injunctions restraining or relating to contraventions of the Trade Practices Act were concerned with permanent injunctions sought by way of substantive relief. In his Honour's view nothing said in Thomson's case limited the power of the Federal Court to grant an interlocutory injunction pursuant to s.23.

I find the judgments of Northrop J. and Fitzgerald J. persuasive and propose to follow them. Borrowing the language of Fitzgerald J. :

"What is sought to restrain is conduct which it is said may, if engaged in, render nugatory any entitlement in the applicant to the substantive relief claimed and to any grant to the applicant of that relief". (at p.43,759).

I should mention the judgment of Bowen C.J. in Collins v. Minister for Immigration and Ethnic Affairs (No. N.S.W. G216 of 1982, delivered 26 November 1982). His Honour was there concerned with an application pursuant to s.15 of the Judicial Review Act for an order staying a decision of the Minister refusing to interfere with the deportation order which had already been made. As the Chief Judge pointed out, s.15 conferred no jurisdiction to stay the original deportation order that was made and any stay granted under that section would not affect the operation of the original deportation order. It does not appear to have been put to his Honour that he had power to make interlocutory orders pursuant to s.23 of the Federal Court of Australia Act.

What Bowen C.J. did say in that case was that he did not think "that the standards imported from other areas of the law are necessarily applicable in the administration of this Act". He left as an open question whether s.15 requires an applicant to make out a prima facie case in the sense laid down in a number of authorities.

Whether, in an application such as the present one, the traditional authorities apply is not a matter that was canvassed at any length before this Court. I do not suggest that so far the applicant has done more than make out an arguable case for his application to review the decision of the Minister not to furnish reasons. Questions of the proper construction of s.13(1) and (5) and its application to the facts do arise. The decision of Franki J. in Capello v. The Minister for Immigration and Ethnic Affairs [1980] FCA 152; (1980) 2 ALD 1014 may stand in the way of the applicant's ultimate success. But I do not read that decision as suggesting that there is no power to review an order for deportation under s.18 of the Migration Act or that such an application may never succeed.

But the matter of the balance of convenience is a compelling one. If the Minister proceeds with the deportation of the applicant tomorrow, the applicant will lose all prospect of proceeding with his present application and all prospect of seeking a review of the decision for his deportation. On the other hand if the Minister is restrained from proceeding with the deportation until the application is heard, it is difficult to see that the Minister will suffer any prejudice. I say this particularly having regard to the fact that the substantive application can be heard within a few days.

In the circumstances I am of the opinion that there should be an order restraining the Minister from deporting the applicant until a date which I shall discuss with counsel as an appropriate hearing date or until further order.