Re Thomas William Malloy v the Minister of Immigration and Ethnic Affairs [1986] FCA 2 (15 January 1986)

FEDERAL COURT OF AUSTRALIA

Re: THOMAS WILLIAM MALLOY
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G10 of 1986
Administrative law

COURT

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

CATCHWORDS

Administrative law - application for stay of deportation order - applicant not given opportunity to answer statements made adverse to him - whether a serious question to be tried.

Administrative Decisions (Judicial Review) Act 1977: s. 15.

Migration Act 1958: s. 18.

HEARING

SYDNEY
15:1:1986

ORDER

The execution of the deportation order made against the applicant on 31 December 1985 be stayed until the hearing of this proceeding or further order.

The matter be listed for directions at 9.30 a.m. on Tuesday, 4 February 1986.

The costs of today's application for the stay be the applicant's costs in the proceeding.

Each party is at liberty to apply on two days notice save in relation to the return of the applicant's passport in which case application to restore to the list may be made by either party on any reasonable notice.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an application to stay the execution of a deportation order made 31 December 1985 against the applicant Thomas William Malloy. Mr. Malloy is a citizen of the United States of America and is 33 years of age. He married Annabelle Jane Rossiter, an Australian citizen, in the United States of America on 12 August 1976. There are two children of the marriage, both sons, now aged nine and seven. Both are Australian citizens. There is in evidence before me the submission prepared by the Department of Immigration and Ethnic Affairs for the respondent Minister for Immigration and Ethnic Affairs dated 31 December 1985 recommending amongst other things that the grant of permanent residence to Mr. Malloy be refused and that the Minister sign an attached order for deportation of Mr. Malloy.

2. In that submission various statements are made. There is before me evidence which establishes the accuracy of certain of those statements but, as is a common place in cases of this nature, much of the material contained in the submission is not otherwise the subject of evidence and is therefore not to be treated as evidence of the truth of those facts. However, it is sufficient for present purposes if I state certain of the contents of the submission on the basis that that constituted a portion of the material that was before the Minister when the decision was taken to deport Mr. Malloy and when the anterior decision was taken to refuse him permanent residence status.

3. It is necessary to refer to the facts in a little detail notwithstanding that this is essentially an interlocutory application. On 6 April 1982 Mr. Malloy and Mrs. Malloy and their two children entered Australia. Mr. Malloy entered here as a visitor and was granted a temporary entry permit valid for a stay of six months. His wife and children of course entered as Australian citizens. Both Mr. and Mrs. Malloy departed Australia thereafter and returned at different times. Mr. Malloy returned on 7 November 1983 as a visitor and upon entry was granted a temporary entry permit valid for a stay of six months.

4. The submission recites that on 10 November 1983 Mr. Malloy applied for the grant of permanent resident status in Australia and on 15 November 1983 applied for permission to engage in employment in Australia. On 17 November 1983 Mr. Malloy and his wife attended the Canberra regional office of the Department of Immigration and Ethnic Affairs, to which I shall refer as the Department, and were interviewed. The submission states that their relationship was assessed as genuine and Mr. Malloy was approved for the grant of permanent residence subject to his meeting appropriate requirements. A little later he was granted permission to engage in employment whilst his application for permanent resident status was being processed. He would otherwise have been unable to engage in employment here.

5. On 16 January 1984 Mrs. Malloy attended the Canberra regional office and there made certain statements about Mr. Malloy relating to his treatment of her. She also made certain statements relating to an alleged previous medical history of his. On 23 January 1984 Mr. Malloy informed the Canberra regional office of the Department that he was separated from his wife and asked whether this would affect his application for permanent residence. On 31 January 1984 the Regional Director of the Department based in Canberra refused his application for permanent residence and Mr. Malloy was informed of that decision in a letter of 2 February 1984. He was at that time also requested to leave Australia by 7 May 1984. That is the first of the decisions challenged by Mr. Malloy in the proceedings before this Court. There are three other decisions challenged by him in this proceeding. They are all challenged pursuant to the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act") and on various grounds to which I shall refer a little later.

6. On 16 February 1984 solicitors acting for Mr. Malloy applied for a review by the Immigration Review Panel of the decision refusing him permanent residence; the solicitors set forth in the application the reasons why resident status should be granted. They included the following: (i) that it was alleged Mrs. Malloy had left Mr. Malloy without notice and deprived him of the opportunity to contribute to his children's welfare; (ii) that his wife obtained custody orders in his absence; (iii) that his access to the children of the marriage was confined by order of the Family Court to the Australian Capital Territory; (iv) that the children and he got on well together and that he should not be deprived of access; and (v) that he only sought resident status as an opportunity to form a proper relationship with the children.

7. Mr. Malloy stated in his review application that he and his wife separated on 9 July 1982. Mr. Malloy was informed in May 1984 that he was under no obligation to leave Australia at that time. On 22 June 1984 Mrs. Malloy was interviewed at the Canberra regional office of the Department and there made certain other statements about Mr. Malloy relating amongst other things to his financial obligations towards herself and the children and certain threats made by him.

8. On 3 July 1984 an officer of the review branch of the Department maintained the decision to refuse permanent residence. On 22 August 1984 the Immigration Review Panel considered Mr. Malloy's request for review and said:

"The panel feels that this is a case deserving

close examination (perhaps by a court) but at this
stage a personal interview with the parties would
be required."

9. In September 1984 an officer of the Department advised that in his view the Department could not instigate or attempt to influence the parties into court action and suggested that Mr. Malloy and his wife be reinterviewed and an assessment and decision made. On 15 November 1984 the Immigration Review Panel again considered the review application and requested that the appeal be re-presented "in the attendance of Mr. Malloy and his wife". It is said in the submission, paragraph 21, that Mrs. Malloy's statement of 16 January 1984, to which I have made a brief reference, was "explicitly discounted in consideration of the appeal".

10. On 15 November 1984 a Mr. Brian Essai of Canberra informed the Department of certain matters relating to a relationship between his daughter and Mr. Malloy, and of an alleged assault by Mr. Malloy upon the daughter from which she received severe injuries to her lip and teeth resulting in substantial cost to repair the damage done to her. The information provided by Mr. Essai also related to the signing of a hire purchase agreement for some $17,000 for the purchase of a motor vehicle, the agreement apparently having been signed by Mr. Malloy and Mr. Essai's daughter.

11. The drift of Mr. Essai's submission to the Department was, however, not that Mr. Malloy should be deported from Australia but rather he should not be deported pending certain criminal and civil charges against him being finalised. It appears that Mr. Essai is an officer of the Department himself and indeed an officer who works in the relevant section concerned with deportation matters.

12. On 27 November 1984 Mrs. Malloy's solicitors told the Department that she would not attend a meeting of the Immigration Review Panel. Mr. Malloy had in the meantime left Canberra for Queensland. It is not suggested that he took that course in any way to gain advantage in relation to the proceedings before the Immigration Review Panel. A colleague of Mr. Malloy, a Mr. Davis, apparently volunteered to appear at the Immigration Review Panel meeting on behalf of Mr. Malloy but this appears to have been done without the knowledge or authority of Mr. Malloy.

13. On 28 November 1984 the Immigration Review Panel reconsidered Mr. Malloy's appeal and recommended that it be upheld. The Panel said that to refuse him permanent residence would deny his children ongoing access to their father, a decision which could be justified only in extreme circumstances which did not exist. In its report the Panel also stated it had telephoned Mrs. Malloy and had been impressed by her statements in his favour and on behalf of their children. She had apparently specifically asked that her previous statements in respect of Mr. Malloy not be considered.

14. On 15 January 1985 the Canberra regional office of the Department was informed by an officer of the Australian Federal Police that Mr. Malloy was to be interviewed with respect to the alleged assault of Mr. Essai's daughter to which I have already made reference. Following advice to the Minister on 20 January 1985 that Mr. Malloy had been interviewed by the Australian Federal Police and that his prosecution was likely, the Minister deferred his decision in respect of the Immigration Review Panel's recommendation and requested more information concerning Mr. Malloy's relationship with his former wife and his sons.

15. On 16 April 1985 Mrs. Malloy attended the Canberra regional office of the Department and made certain statements about Mr. Malloy in relation to, amongst other things, alleged physical violence displayed by him, certain medical treatment received by him in the United States of America and an absence of financial assistance from him to her. Mrs. Malloy wrote the Department a letter which was received by it on 13 August 1985 stating that she had not received maintenance since October 1984 and during that time he had seen his children once only and telephoned them twice only. There is evidence before me which if accepted would tend to negate the veracity of that statement, but I say nothing whatever about that as it is not an issue that has been ventilated before me at this stage of the case.

16. On 22 August 1985 the Minister upheld the decision to refuse to grant permanent residence to Mr. Malloy. It is that decision which is the second decision under challenge in this case. That decision of course is one which therefore ran counter to the advice tendered by the Immigration Review Panel in November 1984. Mr. Malloy was informed of that decision in September 1985 and was directed to leave Australia within 21 days. Mr. Malloy apparently sought the intervention of his local member in Queensland, a Mr. Adermann, who on 26 September 1985 wrote to the Minister on Mr. Malloy's behalf requesting a grant of a further temporary entry permit and permission to work. Other submissions were made by Mr. Adermann in the letter on behalf of Mr. Malloy to which I need not refer.

17. Then on 18 October 1985 the Department received a letter from Miss Anne Hewsley of Brisbane in which she said Mr. Malloy had proposed marriage to her. She also made other statements in the letter which tended to, if true, cast aspersions upon Mr. Malloy.

18. On 18 November 1985 Mr. Malloy was convicted before the Canberra Court of Petty Sessions of the offence of assault occasioning actual bodily harm, the assault being the one to which I have already referred. He was placed on a bond with $250 surety to be of good behaviour for twelve months. Later that day, with his solicitors accompanying him, he attended the Canberra regional office of the Department and made statements about matters relating to his former wife and his children which, if true, would tend to negate certain statements to the contrary made by her. He also stated that he was presently engaged to marry a woman.

19. Mr. Malloy was interviewed at the Sydney regional office of the Department on 28 November 1985 in which he made a number of statements, which I need not refer to in any detail, but which are summarised carefully in paragraph 35 of the submission to the Minister.

20. On 12 December 1985 Mr. Malloy and a Margaret Louise Baker attended the Sydney office of the Department and said that they first met in August 1985, had commenced living together soon thereafter, and that they intended to marry each other.

21. Most of those statements which I have mentioned are taken from the submission to the Minister. I have not treated them as statements of fact but rather as statements which were before the Minister when the relevant decisions were made by him.

22. Mr. Malloy himself has sworn an affidavit and given oral evidence today. Some of that evidence confirms statements made in the submission to the Minister and some of it joins issue with statements which appear to have been made by his former wife to the Department. It seems that it is the intention of Miss Baker and Mr. Malloy to marry on Saturday next, 18 January 1986, and there is evidence that their marriage is not intended to be one of convenience for the purpose of obtaining an advantage with respect to the immigration laws of Australia.

23. Mr. Malloy's United States passport is held by the Department. It was sent to the Department by him voluntarily in September of 1985 and he says that notwithstanding his request to the Department to return it, the Department has refused to do so. He says it is necessary that he have the passport for his forthcoming marriage on Saturday.

24. Mr. Malloy says that when, in November 1985, he was in Canberra he visited the Department and was requested by an officer of the Department to see another officer of the Department in Sydney, which he says he later did. Those two occasions would appear to relate to two interviews to which reference is made in the ministerial submission. Mr. Malloy says that was the only time that he ever had interviews with any member of the Department relating to his applications to remain in Australia and that both of them took place after he received the letter from the Department in September 1985 informing him, amongst other things, that his appeal for a review of the refusal of his application for resident status had been refused.

25. There are four decisions under challenge. The solicitor for the Minister has submitted that the appropriate principles applicable to the grant of stays of deportation orders pursuant to s. 15 of the Judicial Review Act, which it is common ground is the basic source of jurisdiction and power in this case, are those that have been established in the sphere of interlocutory injunctive relief, in particular, the principles enunciated by Gibbs C.J. in the Australian Coarse Grain Pool Pty. Limited v. Barley Marketing Board of Queensland (1983) 47 ALJR at 425, namely, that before granting interlocutory relief the court must be satisfied that there is a serious question to be tried and that the balance of convenience lies in favour of granting that relief. See also Faingold v. Zammit (1984) 1 FCR 87; Collins v. Minister for Immigration and Ethnic Affairs, a decision of Bowen C.J. which appears to be unreported, 26 November 1982, where the Chief Judge said in relation to an application for a stay of a deportation order:

"This involves showing that they 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; 118 CLR 618 or whether it is
sufficient to show an arguable case as mentioned in
Capello v. Minister for Immigration and Ethnic
Affairs (1980) 2 ALD 1014 might be a question.
Each case I think will depend upon its own
circumstances in the exercise of discretion."

I respectfully agree with those observations of his Honour.

26. There has been, of course, some conflict in the courts, including decisions of the High Court itself, as to the extent to which the principles of natural justice relate to decisions to deport made under the Migration Act. However, in Kioa v. Minister for Immigration and Ethnic Affairs, a judgment of the High Court of Australia, 18 December 1985, the Court by majority held that the principles of natural justice do operate in relation to deportation orders in certain circumstances and to some degree. It is unnecessary for me to attempt to define those circumstances and that degree. However, in the course of his reasons for judgment Mr. Justice Mason said:

"this is not to say that fairness will necessarily,
or even generally, require that an applicant for a
further entry permit be given an opportunity to be
heard even where deportation may follow from its
refusal. The grant of an entry permit is a matter
of discretion. Indeed, the cancellation of a
temporary entry permit is expressed to be a matter
of absolute discretion (s. 7(1)). In the ordinary
course of granting or refusing entry permits there
is no occasion for the principles of natural
justice to be called into play. The applicant is
entitled to support his application by such
information and material as he thinks appropriate
and he cannot complain if the authorities reject
his application because they do not accept, without
further notice to him, what he puts forward. But
if in fact the decision-maker intends to reject the
application by reference to some consideration
personal to the applicant on the basis of
information obtained from another source which has
not been dealt with by the applicant in his
application there may be a case for saying that
procedural fairness requires that he be given an
opportunity of responding to the matter."

27. Counsel for the applicant has submitted that there are various grounds which underlie the applicant's challenge to the decisions in question here, any one of which would be sufficient to sustain the making of an order staying the operation of the deportation order in the present case.

28. I do not find it necessary in a case of this kind to deal at length with any of those submissions. I will, however, deal with one submission briefly which seems to me, as at present advised, to be the nub of the case. I do not suggest that other submissions may not ultimately succeed. All I say is that, as I see it at the moment, there is one point which controls the case, namely, that when the second decision under challenge was made (ie. the decision of the Minister upholding the decision taken many months before refusing the applicant the grant of permanent resident status) on 22 August 1985, and confirmed on 31 December 1985 at or about the same time as the order for deportation was signed, that decision was taken by the Minister notwithstanding the recommendation of the Immigration Review Panel made in November 1984 that Mr. Malloy's appeal be upheld. The Minister is, of course, free to accept or reject recommendations of that Panel but for presently relevant purposes it appears on the evidence before the Court that, although the former wife of the applicant on a number of occasions made statements to the Department, all but one of which were adverse to him, he was not given any or any real opportunity to reply to them, and I am not satisfied that at least some of those statements by Mrs. Malloy were not taken into account by the Department. There is material suggesting that some were deliberately excluded from consideration, but it does not appear that that exclusion applied to all matters raised by Mrs. Malloy adverse to her former husband.

29. The Immigration Review Panel itself was of the opinion that both Mr. and Mrs. Malloy should have an opportunity to be interviewed and state their case but for reasons which I think it is unnecessary for me to go into at this stage of the case, Mr. Malloy was not consulted. No doubt on the final hearing of the case that question will be a live issue and will be explored. I have no view of any kind as to the reasons which prompted the attitude that was taken by the Department and the Minister or whether those reasons were sound.

30. It is sufficient for present purposes to say that in my opinion there is a serious question to be tried on the hearing of the matter, namely, whether the principles of natural justice applied to the decisions taken by the Minister in August 1985 confirming the earlier decision refusing permanent resident status to Mr. Malloy and the decision some few months later confirming that decision and ordering the deportation of Mr. Malloy. That question in turn involves the consideration of the applicability of the Kioa judgment of the High Court and is plainly an arguable question. If the Kioa judgment does operate to apply the principles of natural justice to those decisions, then another serious question arises for trial, namely, whether Mr. Malloy was denied natural justice by not having an opportunity to put his case. I have no concluded view on that question at all, but it appears on the material before me that, whatever the reasons may be, he was not given that opportunity. Again, I emphasise that the reasons may or may not be sound, but a reasonably arguable case has been established sufficient to warrant the matter going to final hearing with the protection of a stay order in the meantime.

31. I think it is also seriously arguable that if the decisions to which I have just referred are bad in law then the deportation order would itself be bad in law because, plainly enough, if permanent resident status had been granted to Mr. Malloy there would have been no deportation order made against him. They are all related decisions.

32. I am satisfied that, although the evidence is a little scanty as to whether or not there has been an actual request made by Mr. Malloy for the return of his passport, in fact it has been decided by the Department that the passport be not returned. The solicitor for the Minister in answer to a question from myself offered what may be a perfectly sound reason for that course, namely, the difficulty of deporting someone when there is no available passport and thus no country willing to receive him.

33. On the other hand, Mr. Malloy has sworn that he needs the passport for the purposes of his forthcoming marriage in a few days time, no doubt so that there is some authentic evidence available of his birth, citizenship and other relevant matters. I think the proper course to take in relation to the passport is not to order that it be returned to Mr. Malloy but to reserve liberty to apply to the applicant if suitable arrangements are not made between Mr. Malloy and the Department this week, whereby the marriage authorities would have before them the evidence they require to enable the marriage to be celebrated. Whether that be the presentation of the passport itself or a copy certified by the relevant Commonwealth Government department, I know not, but it is plain from the attitude taken by the solicitor for the Minister that this will be no stumbling block and that the Department will co-operate in this regard.

34. The Court makes the following orders:

1. That execution of the deportation order made against the
applicant on 31 December 1985 be stayed until the hearing of
this proceeding or further order.

2. That the matter be listed for directions at 9.30 a.m. on
Tuesday, 4 February 1986.

3. That the costs of today's application for the stay be the
applicant's costs in the proceeding.

4. That each party be at liberty to apply on two days notice save in relation to the return of the applicant's passport in which case application to restore to the list may be made by either party on any reasonable notice.