Re Aleksander Faingold, Espira Faingold and Pavel Faingold v Walter Zammit and the Minister of Immigration and Ethnic Affairs [1984] FCA 1; 1983 Immigration 1 FCR 87 (20 January 1984)

FEDERAL COURT OF AUSTRALIA

Re: ALEKSANDER FAINGOLD, ESPIRA FAINGOLD AND PAVEL FAINGOLD
And: WALTER ZAMMIT AND THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. 279 of 1983
Immigration
1 FCR 87

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Lockhart(1) and Sheppard(1) JJ.

CATCHWORDS

Immigration - appellants entered Australia at proclaimed airport without passports or entry permits - appellants refused entry permits and detained pending execution by airline of requirement that they be taken out of Australia - stay refused by single judge - test to be applied in determining whether stay should be granted - whether authorised officer could reasonably have formed belief that appellants were seeking to enter Australia in circumstances in which they would become prohibited immigrants - whether appellants entitled to natural justice - whether authorised officer failed to take into account relevant considerations - Migration Act 1958, ss.6 and 36A; Administrative Decisions (Judicial Review Act) 1977, s.5

Immigration - Appellants entered Australia without passports or entry permits - Appellants refused entry permits and detained pending removal from Australia - Whether authorised officer could reasonably have formed belief that appellants were seeking to enter Australia in circumstances in which they would become prohibited immigrants - Administrative law - Review of decision of authorised officer and Minister - Stay refused by single judge - Test to be applied in determining whether stay should be granted - Whether authorised officer failed to take into account relevant considerations - Natural Justice - Whether respondents required to give reasons - Migration Act 1958 (Cth), ss 5, 6 and 36A - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 13 and 15. The appellants arrived at Melbourne Airport from Greece without passports or documents authorising their entry into Australia. Prior to their arrival in Australia, the appellants had sought permission to reside in Australia, which permission had been refused. On their arrival on 9 December 1983 the first respondent, an immigration officer, stated that the appellants would be kept in a detention centre and then sent out of Australia.

Section 6(1) of the Migration Act 1958 (Cth) provides that "an immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant". The immigration officer in apprehending the appellants acted in purported pursuance of s. 36A (2) of the Migration Act 1958 (Cth) which empowered him to do so where he reasonably believed each of the appellants to be a "person . . . seeking to enter Australia in circumstances in which he would become a prohibited immigrant". The appellants sought, pursuant to the Administrative Decisions (Judicial Review) Act 1977, to review the original decision to refuse the appellants' application for permission to enter Australia; the decision not to grant the appellants entry permits, whether temporary or otherwise; and the decision that the appellants be held in custody and then removed from Australia. On 13 December, 1983 a single judge, whilst not dealing with the substantive application, refused to grant an application pursuant to s. 15 of the Administrative Decisions (Judicial Review) Act 1977 for orders, which if made, would have enabled the appellants to remain in Australia pending the hearing of the principal application. The appellants appealed from this decision.

Held: (1) The single judge was not in error in applying the test propounded by Gibbs C.J. in The Australian Coarse Grain Pool Pty Ltd v. The Barley Marketing Board of Queensland (1983) 57 ALJR 425 in determining whether the relief should be granted and in any event in practical terms this test is not very different from the test formulated by Keely J. in Perkins v. Cuthill (1981) 52 FLR 236.

(2) There was no warrant at all for the view that the authorised officer was not entitled reasonably to believe that the appellants were seeking entry into Australia in circumstances in which they would become prohibited immigrants. Accordingly, the appellants failed to demonstrate that there was a serious question to be tried.

(3) The rules of natural justice do not apply when decisions, pursuant to s. 36A of the Migration Act 1958 (Cth) are being made.

Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396;

R. v. MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461;

Minister for Immigration and Ethnic Affairs v. Haj-Ismail [1982] FCA 51; (1982) 40 ALR 341, referred to.

(4) It is not a "relevant consideration" under s. 5 (2)(b) of the Administrative Decisions (Judicial Review) Act 1977 that the appellants had housing available to them and that the first appellant would have had a job to go to if allowed to remain in Australia.

Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363, referred to.

(5) The primary judge was not in error in not requiring the respondents to give reasons under s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for each decision in respect of which review was sought. The timetable provided under s. 36A of the Migration Act 1958 (Cth) for the removal of persons from Australia is of the most expeditious kind and to require the respondents to give reasons to delay matters would frustrate the intended operation of s. 36A.

HEARING

Melbourne, 1983, December 14; 1984, January 20. 20:1:1984
APPEAL.

Appeal from a decision of a single judge (Northrop J.) refusing to grant a stay of the appellants' removal from Australia pending the determination of an order of review of decisions, inter alia requiring the appellants' removal from Australia.

W. J. Martin and D. A. Doyle, for the appellants.

N. A. Moshinsky, for the respondents.
Cur. adv. vult.

Solicitors for the appellants: Rylah & Rylah.

Solicitor for the respondents: T. A. Sherman, Acting Commonwealth Crown

Solicitor.

J. J. ISLES.

ORDER

1. The appeal and the notice of motion be dismissed.

2. The appellants pay the costs of the appeal and the notice of motion.

Orders accordingly.

DECISION

On 14 December last we dismissed an appeal from a single judge of this Court and also a notice of motion. We did not then deliver reasons but said that we would do so in due course. What follows are our reasons for the decisions which we made.

On 9 December last the appellants arrived at the Melbourne Airport from Greece. Although they had travel documents, they had no passports and no other documents identifying them or authorising their entry into Australia.

The appellants are natives and nationals of the U.S.S.R. According to the evidence of the first appellant, the Government of the U.S.S.R. permitted the family to leave the Soviet Union for the purpose of taking up residence in Israel. The first appellant is Jewish; his wife and son are not. According to his evidence this led to difficulties for them in Israel with the consequence that they decided to leave Israel and reside in Greece. They arrived in Greece towards the end of 1980. In May 1981 they made an application to the Australian Embassy in Athens to enable them to migrate to Australia. The first appellant said that he was informed in October 1981 that the application had been refused.

A further application was made about November 1982 by a Mr. Gregory Tserniak apparently on behalf of the appellants. Mr. Tserniak lives in Melbourne. The application was refused by a letter written to Mr. Tserniak by the Regional Director of the Department of Immigration and Ethnic Affairs in Melbourne dated 20 September 1983. It is unnecessary to set out the terms of this letter.

Notwithstanding that their applications for permission to reside in Australia had been refused, the appellants apparently decided to come to this country in the hope that in some way they would, after all, be accepted as residents here, temporary or permanent.

Upon their arrival they were questioned by officers of the Department. They requested that they be given permission to live in Australia. They were told that they would be sent out of the country and in the meantime would be kept in a detention centre.

The action taken by the immigration officers was purportedly pursuant to s.36A of the Migration Act 1958. The relevant portions of this section are as follows:-

". . . . . . . . . . . . . . . . . .

(2) A person who disembarks from an aircraft at a proclaimed airport, whether or not that airport is the first port of call of the aircraft in Australia, being a stowaway or a person whom an authorized officer reasonably believes to be seeking to enter Australia in circumstances in which he would become a prohibited immigrant, may, at any time before he leaves the airport -
(a) if an authorized officer so directs; or
(b) if the master of the aircraft so requests and an authorized officer approves,

be taken into custody by an officer and kept in such custody, either at the proclaimed airport or elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorized officer directs.

(3) Where a person, not being a person exempted, by instrument under the hand of the Minister, from the requirements of Division 1A, who travels by aircraft from a place outside Australia to a proclaimed airport has sought and been refused an entry permit at that airport or at any other airport in Australia at which he has called in the course of that travel, he may, if an authorized officer so directs, be taken into custody at that firstmentioned airport or elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorized officer directs.

(4) Where a person is taken into custody under sub-section (1), (2) or (3), an authorized officer may, at any time within 24 hours after the person is so taken into custody, by notice in writing served on the master, owner, agent or charterer of the aircraft on which he travelled to Australia, require the master, owner, agent or charterer to remove the person from Australia at no charge to the Commonwealth.

(5) A master, owner, agent or charterer on whom a requirement has been served under sub-section (4) shall comply with the requirement within the period of 72 hours commencing at the time when the requirement was served on him or within such further period as an authorized officer allows, whether or not the person to whom the requirement relates is able or willing to pay, or agrees to pay, a charge in respect of his removal from Australia.

Penalty: $2,000
<. . . . . . . . . . . . . . . . . . . . . .

(8) A person shall not, for the purposes of this Act, be deemed to have entered Australia by reason only of his having been taken from a proclaimed airport for the purpose of being kept in custody at a place outside a proclaimed airport in pursuance of sub-section (1), (2) or (3)."

With s.36A needs to be considered s.6. Sub-section (1) of that section provides:-

"6. (1) An immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant."

Subsection (2) provides for the grant of an entry permit. Subsection (5) provides that an entry permit may be granted to an immigrant either upon his arrival in Australia or, subject to section 6A, after he has entered Australia. Entry permits may be temporary or may permit permanent residence. There may be made subject to conditions of various kinds.

But for the operation of s.36A a person entering Australia in circumstances such as the appellants arrived here would be a prohibited immirant by reason of the operation of sub-sec. 6(1). Section 36A, if it operates, would appear to prevent a person entering Australia, in such circumstances as did the appellants, from becoming a prohibited immigrant. That appears to be its intention and is the case in relation to these appellants who were taken in custody to a place outside a proclaimed airport; see sub-sec. 36A(8).

On 12 December 1983 the appellants made application pursuant to s.5 of the Administrative Decisions (Judicial Review Act) 1977 seeking the review of three decisions. The decisions were:-

(a) The decision of the Minister made on 20 September 1983 refusing their application for permission to enter Australia.

(b) The decision of the first respondent, who was said to be an authorised officer of the Minister, made on 9 December 1983, not to grant the appellants entry permits, whether temporary or otherwise;

(c) The decision of the first respondent made on 9 December 1983 that the appellants be taken into custody and requiring, pursuant to the provisions of sub-sec. 36A(5) of the Migration Act, Singapore Airlines Limited, to remove the appellants from Australia.

The grounds upon which review of the decisions was sought were in each case that the rules of natural justice had not been observed; the making of the decision was an improper exercise of the power conferred upon the first respondent or the Minister, as the case may be; there was no evidence or other material to justify the making of the decision; and the decision was contrary to law.

The application was dealt with by a Judge of this court on 13 December 1983. He did not deal with the substantive application, but disposed of an application made pursuant to s.15 of the Judicial Review Act for orders which, if made, would have permitted the appellants to remain in Australia pending the hearing of the principal application. This application was refused by his Honour but he thought that it was desirable that some further short period of stay be permitted. Accordingly, he ordered that an interim order which he had made on 10 December 1983 be continued until 5.00 p.m. on 14 December 1983, or until further order. He expressed the opinion that, if an appeal against his refusal to grant a longer period were lodged and a further extension of time sought, application should be made to a Full Court rather than to him. It was in these circumstances that the appeal from his Honour's order and the notice of motion earlier referred to came before us on 14 December 1983.

The notice of appeal was based upon a number of grounds which we shall later mention. The notice of motion sought a variation of his Honour's order that his earlier interim order be continued only until 5.00 p.m. on 14 December 1983. It was intended that this be the only application made to us on 14 December 1983, but it seemed to us that it was the appeal that raised squarely the question of whether the interim relief earlier granted should continue beyond 14 December 1983. In those circumstances the appeal itself, as well as the notice of motion, were the subject of argument before us. It was our opinion that, unless the appellants could make good their appeal, the relief which they sought would not be available to them.

In his judgment, which was given ex tempore, his Honour made brief reference to the facts which we have earlier recounted. He referred to the definition of "immigrant" in s.5 of the Migration Act. Because the appellants wished to stay permanently here he concluded that each of them was an "immigrant" within the meaning of s.5. He referred to the provisions of s.6. and s.36A and concluded that the appellants were not prohibited immigrants because they had not entered Australia within the meaning of the Act: see sub-sec. 36A(8).

His Honour then considered what test he should apply in determining whether the relief sought should be granted. He thought that the appropriate test was that recently propounded by Gibbs, C.J. in The Australian Coarse Grain Pool Propietary Limited v. The Barley Marketing Board of Queensland (1982) 57 A.L.J.R. 425. His Honour there decided, notwithstanding what was said in Beecham Group Limited v Bristol Laboratories Pty. Limited [1968] HCA 1; (1968) 118 C.L.R. 618, that the proper approach in considering whether an interlocutory injunction should be granted is to enquire whether there is a serious question to be tried, and then to determine the matter of the balance of convenience: see p. 425.

Applying this test, the learned primary Judge, after analyzing the submissions made to him, expressed substantial doubt as to whether there was a serious question to be tried. If there was, he was of the view that the balance of convenience required the refusal of the relief which was sought.

In their first two grounds of appeal the appellants challenged his Honour's application of The Australian Coarse Grain Pool case because this was not a case involving an application for an interlocutory injunction. In the submission of counsel for the appellants the appropriate test was whether the Court considered that reasons or circumstances existed which made it just that the Court should make the order sought. That was the test formulated by Keely J. in Perkins v. Cuthill (1981) 34 A.L.R. 669. His Honour was there dealing with an application under s.15 of the Judicial Review Act for a stay. He said (p. 671):

"In my opinion s.15(1) (a) requires an applicant to satisfy the court that reasons or circumstances exist which make it just that the court should make the order sought, but it is not necessary for the applicant to show that those reasons or circumstances are in any sense "special" or "exceptional". Of course the discretion must be exercised judicially and not arbitrarily."

In our opinion it will be difficult for an applicant to show that reasons or circumstances exist which make it just that the Court should make the order sought unless it is demonstrated that the applicant has a point of substance to argue which, if successful, will result in judgment in his favour. In this respect it does not appear to us that the two test are, in practical terms, very different.

We pass to the next ground which was that, if the appropriate legal test required the appellants to show that there was a serious question to be tried, they had demonstrated that there was. We have earlier set out the provisions of sub-sec. 36A(2). The principal question which the appellants wished to argue was whether the first respondent, as an authorised officer, could reasonably have formed the belief that the appellants were seeking to enter Australia in circumstances in which they would become prohibited immigrants. As we understood the argument, it was that he could not reasonably have formed that belief because the appellants were seeking to enter Australia, not in circumstances in which they would become prohibited immigrants, but in circumstances where they would become immigrants to whom entry permits were granted with the result that they would be lawfully here.

Counsel disclaimed that he was introducing any subjective element into this part of the subsection but in his argument it seemed to us that his challenge to the ability of the first respondent to form the relevant belief was based on the subjective intention of the appellants. Our view in this regard was reinforced by reference to an affidavit sworn by the appellants' solicitor in support of the motion. Amongst other things the solicitor said:

"The Appellants seek to argue, as appears to be the case, that they were not seeking to enter Australia in circumstances in which they would become prohibited immigrants but rather to enter Australia lawfully."

This argument ignores the fact that the appellants, whose application to migrate to Australia had earlier been refused, came here and were refused entry permits. In those circumstances they were in fact seeking to enter Australia in circumstance in which they would become prohibited immigrants. But for the operation of s.36A, sub-sec. 6(1) would have operated to make them prohibited immigrants upon their entry to Australia. The fact that they did not wish to be here unlawfully and wished to have entry permits issued to them is of no relevance. For that reason we concluded that there was no warrant at all for the view that the first respondent was not entitled reasonably to believe that the appellants were seeking entry to Australia in circumstances in which they would become prohibited immigrants. It followed that insofar as any decision based on s.36A was concerned, the appellants not only failed to demonstrate that there was a serious question to be tried; there was simply no legal basis for taking the view that s.36A did not operate in the circumstances of this case.

Other matters relied upon by counsel for the appellants were that there had been a breach of the rules of natural justice and that the first respondent had failed to take into account a number of relevant considerations when making the decision. Upon the basis of a number of authorities there is no warrant for the view that the rules of natural justice apply when decisions pursuant to s.36A are being made. The authorities to which we refer include Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 C.L.R. 396, The Queen v. MacKellar; ex parte Ratu [1977] HCA 35; (1977) 137 C.L.R. 461, Minister for Immigration and Ethnic Affairs v. Haj - Ismail [1982] FCA 51; (1982) 40 A.L.R. 341 and Minister for Immigration and Ethnic Affairs v. Gaillard (29 August 1983, unreported).

The relevant considerations which it was said had not been taken into account were that the appellants were not without means, they had housing available to them through Mr. Tserniak and the first appellant would have a job to go to. These submissions ignore decisions of this Court on the way in which para. 5(2)(b) of the Judicial Review Act should be interpreted. We refer principally to Sean Investments Pty. Limited v. MacKellar (1981) 38 A.L.R. 363, per Deane J. at pp. 374-5, affirmed on appeal (1982) 42 A.L.R. 676.

We are conscious that our decision in practical terms disposes of the appellants' application for the review of decision (c) earlier set out. But notwithstanding that the appellants will be out of the jurisdicition when the substantive application comes on for hearing, there is nothing to prevent them proceeding with it insofar as decisions (a) and (b) are concerned. We would say, however, that what we said earlier in relation to natural justice and the failure to take into account relevant considerations applies with equal force to these decisions.

Grounds 4 and 5 of the notice of appeal challenge the findings by the primary Judge that, if there were a serious question to be tried, the balance of convenience nevertheless required the Court not to interfere with the action which had been taken. We were not satisfied that his Honour fell into error in making that finding.

Ground 6 was that the primary Judge should have allowed an application for an adjournment to enable further evidence to be produced. We rejected this ground primarily for the reason that it was not apparent to us that any other relevant evidence could have been obtained. The nature of the evidence which the appellants wished to adduce appears from affidavits filed in support of the motion. It was in our opinion not evidence which was relevant to action taken under s.36A or to any application for the review of decision (c).

Finally, it was said that the primary Judge was wrong in taking the view that the respondents were not required to give reasons under s.13 of the Judicial Review Act for each of the decisions, review of which was sought. We do not find it necessary to reach a conclusion on this matter. We fail to see how the giving of reasons could affect the views we have expressed in relation to the operation of s.36A of the Migration Act on the circumstances of the case.

We emphasise that the timetable provided by the section requires action of the most expeditious kind. Notice must be served on the airline within 24 hours after the person is taken into custody (sub-sec. (4)) and the airline is required to comply with the notice within 72 hours from the time of service of the requirement on it (sub-sec.(5)). The airline is liable to pay the Commonwealth a fair sum for the cost of keeping and maintaining a person while he is in custody in compliance with sub-sections (1), (2) or (3) (sub-sec. (7)). If one were to allow a request for reasons (assuming the respondents be obliged to give them) to delay matters, the intended operation of s.36A would be frustrated. In the absence of there being demonstrated some basis upon which it might reasonably be considered that the conduct of the Minister or one of his officers under the section was unlawful, it seemed to us that one ought not to allow a request for reasons to prevent the operation which the section was intended to have.

For all these reasons we decided to dismiss the appeal. The matters raised in the motion involved no different considerations and for this reason, we decided to dismiss it also. Both the appeal and the motion were dismissed with costs.