Re Gonaseelan v Minister of Immigration & Ethnic Affairs [1985] FCA 41 (22 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: GONASEELAN
And: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
No. G 28 of 1985
Administrative Law

COURT

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

CATCHWORDS

Administrative law - stay of decision to deport - applicants South African Residents - claim for refugee status refused by Minister - type of case which needs to be established to justify the grant of interlocutory relief - Bowen C.J. in Collins v. Minister for Immigration and Ethnic Affairs followed - no arguable case that Minister failed to take into account relevant considerations, or that his decision was unreasonable - interlocutory relief not to be granted merely because a statement of reasons under s.13 Administrative Decisions (Judicial Review) Act not given

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

HEARING

SYDNEY
22:2:1985

ORDER

1. Application refused.

2. No order as to costs.

DECISION

This is an application under the Administrative Decisions (Judicial Review) Act, 1972, to review the decision of the respondent made on or about 10 February 1985 that the applicants be deported from Australia. At the commencement of the proceedings I gave leave to add the female applicant as an additional applicant in the proceedings.

2. The matter before the Court today is an application for interlocutory relief under s. 15 of the Administrative Decisions (Judicial Review) Act, pending the final hearing of the application. The facts of the matter have been well traversed on the hearing of the application and it is necessary that I make fairly extensive reference to them.

3. The male applicant, who is the husband of the female applicant, was born in South Africa of Indian parents in 1948. He and his wife have two children aged 11 years and 6 years. The family arrived in Australia on 14 February 1983 and were granted temporary entry permits on arrival for a period of three months. Apparently further temporary permits were granted to them and the last one of those has expired.

4. In July or August 1983 their illegal presence in Australia was brought to the attention of the Department of Immigration and Ethnic Affairs and they were thereupon arrested and detained at the Villawood Detention Centre. Subsequently, after they were interviewed by officers of the Department, they applied for a change of status to that of refugee, or alternat ively, to be treated under s.6A(1)(e) of the Migration Act 1958 upon the basis that there were strong compassionate or humanit arian grounds for the grant of entry permits to them.

5. The bases of the claims for refugee status and for consideration under s.6A(1)(e) were, first, that the applicants had in the past been subjected to discriminatory denial of fundamental freedoms and basic human rights whilst in South Africa and, second, that their 11 year old daughter required continuing medical treatment, which treatment was not available in South Africa. The male applicant claims that on two occasions prior to his arrival in Australia he was detained by the security forces of the South African Government because of his involvement in political activities in that country.

6. The application for change of status was considered by the Determination of Refugee Status (DORS) Committee which recommended refusal of the application.

7. In November 1984 the male applicant, and I assume also the female applicant, applied to the Minister for a reconsideration of the earlier decision refusing the application for a change of status. However, on 22 December 1984 the Minister determined that the previous decision should stand.

8. A request was made pursuant to s.13 of the Judicial Review Act for a statement of the Minister's reasons for that decision. A statement of reasons was furnished to the applicant either yesterday or today. Because of the way the argument was developed I think it is desirable that the statement of reasons should be set out in its entirety.

"STATEMENT OF REASONS

I, Christopher John Hurford, Minister of State for
Immigration and Ethnic Affairs, having received a
request dated 8 February 1985 from T.V. Martin &
Co, Solicitors, on behalf of Ray Gonaseelan (the
Applicant), for a statement of reasons for my
decision of 22 December 1984, made pursuant to
sections 6 and 6A of the Migration Act, not to
grant permanent resident status to the Applicant,
make the following statement setting out my
findings on material questions of fact, referring
to the evidence or other material on which those
findings were based, and giving the reasons for my
decision.

A. MY FINDINGS ON MATERIAL QUESTIONS OF FACT.

1. The Applicant is a citizen of South Africa.

2. The Applicant arrived in Australia on 14
February 1983 as a visitor. On arrival he was
granted a temporary entry permit valid for three
months, without permission to work.

3. The Applicant claims that he was subjected to
persecution and ill-treatment by the South Africa
government. In particular he claims that he was
detained for fourteen days by the South Africa
Security Police following students protests at a
school at which he was teaching. He alleges that
during this period of detention he was fed only
bread, sugar and water, was kept awake for periods
of up to 72 hours and interrogated concerning his
political beliefs, and was denied medical
attention.

4. The Applicant also claims that his daughter
was refused emergency medical treatment at a
hospital which is reserved for the treatment of
white patients only. The Applicant's daughter
suffered from fluid pressure on the brain, a
condition which the Applicant alleges necessitates
frequent emergency treatment using a brain scanning
machine. Following the refusal of the "whites
only" hospital to treat his daughter the Applicant
claims he was forced to drive 35 kilometres to find
another hospital which had the appropriate equip
ment. He also claims he was again detained by the
security police following this incident.

5. On 28 July 1983 the Applicant made an
application for refugee status. On the same day he
completed a questionnaire and was interviewed by
William Maloney, an officer of my Department.

6. As a result of this interview and also on the
basis of other investigations, Mr Maloney and other
officers of my Department formed the view that the
Applicants claims of persecution were unfounded.
In particular a certificate of service purporting
to show that the Applicant had been employed by the
South African Department of Internal Affairs as a
teacher was strongly suspected to be a forgery.

7. On 17 October 1983 the Determination of
Refugee Status Committee considered the Applicant's
case and recommended that he should not be granted
refugee status. On 11 July 1984 Mr Royal Muir, a
delegate of the Minister, accepted this
recommendation and determined that the Applicant
was not a refugee within the terms of the
Convention Relating to the Status of Refugees and
the Protocol thereto.

8. The Applicant submitted further material in
support of his case, including an article from a
South African newspaper. He claimed that he feared
further persecution should he return to South
Africa because of the anti-apartheid views he had
expressed while in Australia. A number of
representations from other persons and groups on
behalf of the Applicant were also received.

9. On 21 November 1984 the Determination of
Refugee Status Committee again considered the case
and unanimously affirmed its previous recommend
ation against the grant of refugee status.

B. THE EVIDENCE OR OTHER MATERIALS ON WHICH MY
FINDINGS ARE BASED

10. In making the above findings I had before me
the following material:

a) Application for refugee status by the
Applicant dated 28 July 1983.

b) Statutory Declaration made by the Applicant
on 3 August 1983.

c) Questionnaire completed by the Applicant on
28 July 1983.

d) Record of interview between William Francis
Maloney, an officer of my Department, and the
Applicant, conducted on 28 July 1983.

e) Minutes of Determination of Refugee Status
Committee meeting of 14 October 1983.

f) Submission to Mr Royal Muir from M.J. Cleary
dated 3 July 1984 recording Mr Royal Muir's
decision of 11 July 1984.

g) Two letters from the Applicant, one dated 6
September 1984, one undated, with attached
report on the condition of the Applicant's
daughter and copy of "Amandla" National
Anti-Apartheid Newsletter Issue Number 3,
October 1984.

h) Article from 'Post' (a South African
newspaper) September 19-22, 1984, relating to
the Applicant.

i) Minute Summary of Determination of Refugee
Status Committee meeting of 21 November 1984.

j) Application for resident status by the
Applicant dated 18 September 1984.

C. THE REASONS FOR MY DECISION

11. I accepted the recommendation of the Deter
mination of Refugee Status Committee and determined
that the Applicant was not a refugee within the
terms of the Convention Relating to the Status of
Refugees and the Protocol thereto.

12. The Applicant is not eligible for consider
ation for the grant of permanent resident status
under subparagraph 6A(1)(a), (b), (c) or (d) of the
Act. I therefore considered whether there were
strong compassionate or humanitarian grounds for
the grant of an entry permit to him pursuant to
subparagraph 6A(1)(e).

13. I considered that the Applicant had not
substantiated his claim to have suffered
persecution in South Africa. In particular I did
not accept the Applicant's claim that he had been
employed as a teacher in South Africa and that he
had been jailed because of political protests by
students at the school where he was teaching.

14. I considered that it was unlikely that the
Applicant would be singled out for particular
persecution or gross denial of his fundamental
freedoms and basic human rights should he return to
South Africa notwithstanding the media attention
that Mr Gonaseelan had attracted to his circum
stances both here and in South Africa. I accepted
that the Applicant's daughter had been refused
treatment at a 'whites only' hospital in South
Africa. However I considered that adequate health
care would be available to the Applicant's daughter
in South Africa, notwithstanding the racially
segregated nature of the hospital system in that
country.

15. Accordingly I determined that there were no
strong compassionate or humanitarian grounds for
the grant of permanent resident status to the
Applicant. I therefore decided not to grant
permanent resident status to him.

CHRIS HURFORD
21ST FEBRUARY 1985"

9. I should pause at this stage to note that there may have been some misapprehension on the part of the applicants' legal advisers as to the nature of the statement of reasons furnished by the Minister. In a telex dated 8 February 1985 the applicants solicitors requested:

"Urgent preparation of Minister's statement of
reasons under section 13 ADJR Act re his decision
of 22 December 1984 refusing application for
refugee status."

10. The view was apparently taken that the reasons furnished by the Minister would also extend to a statement of reasons for his decision to deport the applicants. Had I been of the opinion that any prejudice had been suffered by the applicants by reason of their misapprehension of the nature of the Minister's reasons, I would have considered an application for an adjournment of the matter. But as will appear from what I subsequently say, I do not think that any good purpose would be served by an adjournment.

11. On 14 January 1985 the regional director of the Department wrote to the male applicant in these terms:

"I am writing to confirm that the Minister for
Immigration and Ethnic Affairs reconsidered your
application for the grant of refugee status on 22
December 1984. On the same date he also considered
your appliction for change of status to permanent
resident under section 6A 1 (e) of the Migration
Act.

In reconsidering your application for the grant of
refugee status the Minister took into account the
unanimous recommendation of the DORS Committee,
made at its meeting on 21 November 1984, that its
previous recommendation against the grant of
refugee status be maintained and affirmed.

The Minister agreed with the Committee's recommend
ation. He also decided that your application for
change of status under Section 6 A 1 (e) was not
one for approval. In doing so he was aware that
this Department recognises that the non-white
population of South Africa is subject to discrimin
atory laws and regulations associated with the
system of apartheid. However, he agreed that there
is nothing in your history which would suggest that
the South African authorities would single you out
for gross and discriminatory denial of fundamental
freedoms and basic human rights.

As there is no right of further review of these
decisions and as the temporary entry permits of
yourself and family members expire on 23 January
1985, you are required to make arrangements to
leave Australia without delay."

12. In another letter of 25 January 1985, written to the applicant, the following was said:

"I refer to my letter of 14 January in which you
were advised that you should leave Australia by 23
January 1985 when your temporary entry permit
expired.

You originally entered Australia as a visitor in
February 1983. Contrary to your undertakings, you
did not depart before the expiry of the temporary
entry permit granted to you. Instead you continued
to reside and work in Australia without lawful
authority.

After you were located by officers from this
Department you applied for recognition as a
refugee. Your application was fully considered by
the Determination of Refugee Status Committee and
on its advice was rejected by the former Minister
for Immigration and Ethnic Affairs, Mr Stewart
West.

You appealed against that decision and your case
was reconsidered by the present Minister, Mr Chris
Hurford, who rejected your appeal after receiving a
further advice of that Committee.

At the same time the Minister also considered your
application on your claimed strong compassionate or
humanitarian grounds. The Minister, as you were
advised previously decided to refuse that
application.

Because of the expiry of your temporary entry
permits last granted to you and your family pending
decision on your various applications, you are now
prohibited non-citizens under S.7 of the Migration
Act 1958. You have therefore committed an offence
under S27 of the Migration Act 1958 and it is my
intention to refer the question of your prosecution
to the appropriate authority.

I serve upon you a Statutory Requirement to Leave
Australia within fourteen days.

Non-compliance with this requirement is punishable
by a fine not exceeding $1000 or imprisonment not
exceeding six months.

Should you not depart Australia within that time,
the question of your enforced departure will be
addressed by the Minister or his delagate."

13. That letter was accompanied by a written requirement to leave Australia. Thereafter there was other correspondence from the applicants' solicitors in which application was made for a change of status under s.6A(1)(e) of the Migration Act. In particular, on 31 January 1985 the applicants' solicitors wrote to the Minister enclosing an application for change of status under s. 6A(1)(e) and requesting consideration of it "in the light of the circumstances which have changed since you last considered the merits of an application for permanent residency by Mr Gonaseelan".

14. These changed circumstances were set out in a statement which was annexed to the letter. I shall not refer in any detail to the contents of the annexure. It referred to a hunger strike which Mr Gonaseelan had embarked on to attract publicity to his desire to avoid deportation to South Africa, to what was alleged to be insufficient consideration of the compassionate and humanitarian grounds raised by Mr Gonaseelan in an interview with an officer of the Department and to other matters such as medical reports on the applicants' daughter's condition and her prospects of receiving adequate medical attention in South Africa.

15. It is plain that the application and the statement were placed before the Minister, because in a telex dated 8 February 1985 from the Department to the applicants' solicitors it was said that all matters raised in the application had been fully considered by the Minister and that no new material has been presented to warrant reopening the decision.

16. The deportation orders were issued on 10 February and served on the applicants on 13 February. The operative part of the order served upon the male applicant was in the following terms:

"WHEREAS GONASEELAN also known as RAY GONASEELAN
being a non-citizen, entered Australia on the
fourteenth day of February 1983

AND WHEREAS the said GONASEELAN is a prohibited
non-citizen by virtue of section 7 of the Migration
Act 1958 in that he was the holder of a temporary
entry permit which has expired and no further entry
permit applicable to him came into force upon that
expiration or has been granted to him since

NOW I, CHRISTOPHER JOHN HURFORD, the Minister of
State for Immigration and and Ethnic Affairs,

DO HEREBY ORDER, pursuant to section 18 of the
Migration Act 1958, that the said GONASEELAN be
deported from Australia"

17. As I have said, the applicants seek orders under s.13 of the Judicial Review Act that the operation of the deportation orders be stayed. Before I turn to consider the arguments advanced in support of the application, it is convenient to refer to the type of case which needs to be established to justify the grant of interlocutory relief. In Collins v Minister of Immigration and Ethnic Affairs (26 October 1982, Bowen C.J., unreported), the Chief Judge said, in relation to an application for a stay of a deportation order:

"This involves showing that (the applicants) have an
application on foot which has at least some
reasonable prospect of success and showing reasons
why a stay should be granted. I do not think that
the standards imported from other areas of the law
are necessarily applicable in the administration of
this Act. Whether s.15 requires an applicant to
make out a prima facie case in the sense laid down
in Beecham Group Limited v Bristol Laboratories Pty
Limited [1968] HCA 1; (1968) 118 C.L.R. 618 or whether it is
sufficient to show an arguable case as mentioned in
Capello v Immigration and Ethnic Affairs [1980] FCA 152; (1980) 2
A.L.D. 1014 might be a question. Each case, I
think, will depend upon its own circumstances in
the exercise of discretion."

18. In his thorough and careful argument counsel for the applicants submitted that there were four grounds upon which the grant of interlocutory relief was justified. First, it was submitted that the material before the Court disclosed that the Minister had not considered any material submitted to him by or on behalf of the applicants subsequent to 21 November 1984. It was said that material submitted to the Minister since that date contained relevant material which should have been con sidered by him. This submission was based upon para. 5(1)(e) of the Judicial Review Act as expanded by para. 5(2)(b).

19. It is important to note that for such an argument to succeed it is necessary for the applicants to be able to identify a particular "relevant consideration" which the Minister failed to take into account. Notwithstanding the very thorough way in which the point has been argued, I am not persuaded that there is an arguable case that the Minister failed to take into account any relevant consideration. It seems plain to me that every consideration which was urged upon him as being relevant was considered by him, both at the time he decided not to grant permanent resident status to the applicants and when he made the deportation orders.

20. If one has regard to the Minister's statement of reasons it will be seen that he referred to matters such as the alleged persecution and ill-treatment by the South African government of the male applicant, the medical condition of the applicants' daughter and the problems which she may suffer in receiving adequate treatment should she return to South Africa with her parents, the application for refugee status and the publicity given in South Africa to the applicants' campaign to avoid deportation. In my view, it is impossible to say, in view of the contents of the Minister's statement of reasons and in the light of all the evidence, that he did not take into account all relevant factors.

21. I have already referred to the correspondence and telexes which passed between the Minister and the applicants prior to the making of the deportation orders. Had I thought that the applicants' case would have been improved by the making of a further request under s.13 for an additional statement of reasons referrable to the deportation orders, I would have considered adjourning the matter to enable such a request to be made and answered.

22. It seems to me that the matters which the Minister took into account before he made the deportation orders and his reasons for making those orders appear clearly from the material which is before the Court and which was within the knowledge of the applicants.

23. For the reasons I have given, I do not think the first ground argued by the applicants' counsel has been made out.

24. It was next submitted that the Minister's decision to deport the applicants was based on conclusions for which there was no reasonable basis. This submission founded upon para. 5(1)(b) of the Act as expanded by para. 5(2)(g). In support of this submission much reliance was placed upon events which occurred in January 1985. These included the writing of the letter of 31 January to the Minister by the applicants' solicitors and to media reports concerning the applicants. With all respect to this submission, I do not think there is any basis for saying that the Minister's decision to exercise the power of deportation was so unreasonable that no reasonable person could so exercise the power - vide para. 5(2)(g) of the Act. It is not for this Court to say whether the Minister accurately assessed the weight of all matters that he needed to take into account in deciding whether or not to exercise his power.

25. It needs to be remembered that the applicants were permitted to enter Australia upon the basis that they would stay for only three months. They have been here for two years. Their entry permits were extended, apparently, more than once. I do not overlook in the slightest degree the intense antipathy which the applicants apparently have (and may well reasonably have) to the prospect of life in South Africa. It is plain from what the Minister has said in his letters to the applic ants that he has considered that matter. There is no basis for this Court to find that his decision to deport the applic ants was so unreasonable that no reasonable person could have made it. No doubt there are difficult political and social conditions exisiting in many countries of the world. But that cannot, in my view, lead to the result that it is unreasonable for the Minister to return a citizen of any particular country to the country from which he had come to Australia.

26. The third argument advanced in support of the application was based upon the circumstance that the Minister apparently proposes to deport the applicants to South Africa. Indeed, I was informed that he proposes to require them to leave tomorrow for that country. It was said that, having regard to the evidence before the Court and the Minister, it would be unreasonable for him to select South Africa as the place to which the applicants should be deported. I cannot see any substance in this argument. Indeed, given the applicants' refusal to leave Australia of their own volition there is no country other than South Africa to which they can be deported unless some other country is willing to accept them.

27. During the course of argument I indicated to counsel for the applicants that if they could make arrangements to be received by some country other than South Africa I would favourably entertain a short adjournment of the present proceedings to enable them to proceed to another country. However, the applicants were unable to say with any certainty that any country other than South Africa would accept them.

28. The fourth argument was that some of the documents referred to in para. 10 of the Minister's statement of reasons had not been provided to the applicants. This submission was made under the misapprehension that the statement of reasons was a statement of reasons for the deportation order but, as I have already said, that was not the case. The basis of the argument was that the failure of the applicants to be furnished with copies of those documents left them in the situation where they had no opportunity to reply to whatever may have been said in them. This is really an argument that the applicants were denied natural justice when the Minister made his deportation orders. However, there is much authority that the principles of natural justice do not apply to the exercise of the power to deport under s.18 of the Migration Act - see Salemi v MacKellar, (No. 2) (1977) 137 C.L.R. 397; 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) 40 A.L.R. 431; and Smith v Minister for Immigration and Ethnic Affairs 53 A.L.R. 551.

29. It is true that, in Haj-Ismail, the Court left open the question whether there might be quite exceptional cases, the facts of which would oblige the Minister to observe the rules of natural justice when considering whether to exercise the power to deport under s.18. This matter was referred to in Karunakaran v Minister for Immigration and Ethnic Affairs, the judgment in which was handed down this morning. Nothing is said in that judgment which would afford any basis for an argument in the present case that there were special facts in the present case that gave rise to any expectation on the part of the applicants that they would not be deported from Australia.

30. For the reasons I have given, I do not think that the applicants have made out a case that they have at least some reasonable prospect of success on the application. For that reason I dismiss the application.

31. I should add that when this matter was before the Court last Friday I heard argument as to whether the applicants were entitled to interlocutory relief until such time as they had been furnished with a statement of reasons under s.13 of the Judicial Review Act. Cases such as Capello v Minister for Immigration and Ethnic Affairs [1980] FCA 152; (1980) 2 A.L.D. 1014; Canberra Labor Club v Hodgman (1982) 47 A.L.R. 781, and my own decision in Sharma v Minister for Immigration and Ethnic Affairs (28 December 1984, unreported) tell against the granting of inter locutory relief merely because a statement of reasons under s.13 has not been given. It is true that, in Rifki v Minister for Immigration and Ethnic Affairs (1983) 46 A.L.R. 301, Toohey J. granted interlocutory relief in a case where no statement of reasons had been given by the Minister but I do not take his Honour as deciding that the mere absence of reasons will in every case justify the granting of interlocutory relief.

32. The application is, therefore, refused. As the respondent does not seek an order for costs, there will be no order as to costs.