Re Minh Ter Sheng v Minister of Immigration and Ethnic Affairs [1986] FCA 27 (17 February 1986)

FEDERAL COURT OF AUSTRALIA

Re: MINH TER SHENG
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG 15 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Gray J.

CATCHWORDS

Administrative law - judicial review - interlocutory application - deportation order - whether denial of natural justice - whether deportation to particular place required - whether release from detention.

Administrative Decisions (Judicial Review) Act 1977, s. 5.

Migration Act 1958, s. 7, s. 6A, s. 18, s. 20, s. 21A, s. 22, s. 5, s. 6, s. 27.

Dallikavak v. Minister for State for Immigration and Ethnic Affairs (1985) 60 A.L.R. 471

Sean Investments Pty. Ltd. v. MacKeller (1981) 38 A.L.R. 363

Kioa v. West (Full Court, High Court of Australia, 18th December 1985, unreported)

Znaty v. Minister of State for Immigration [1972] HCA 14; (1972) 126 C.L.R. 1.

HEARING

MELBOURNE
17:2:1986

ORDER

Until the hearing and determination of the proceeding or further order, the Respondent, the Minister for Immigration and Ethnic Affairs, be and is hereby restrained either personally or by his servants or agents from deporting the Applicant from Australia in reliance upon the decision of Keith Thomas Owen, a delegate of the Minister, that the Applicant be deported, dated 28th January 1986.

The costs of the interlocutory application are reserved.

Liberty is reserved to either party to apply on seven days' notice in writing to the other party.

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

See also Order 37 rule 2(3).

DECISION

On 31st January 1986, the applicant filed an application pursuant to the Administrative Decisions (Judicial Review) Act 1977, seeking to review a decision of a delegate of the respondent, the Minister for Immigration and Ethnic Affairs, that the applicant be deported from Australia. On the same day, service of the application and the accompanying affidavit was effected on the respondent. An application was made that afternoon, seeking an interlocutory order, restraining the deportation of the applicant. The applicant had been told that he would be deported on Sunday, 2nd February. At the time when the application was first made, the applicant was not able to show a serious question to be tried concerning the validity of the respondent's decision. By his counsel, he sought an order preserving the situation until he could prepare a case. Because it appeared that short notice had been given to the applicant's legal advisers of the intention to deport the applicant, a statement of reasons had been given to the applicant only that afternoon, and short notice of the proceedings had been given to the respondent, it seemed appropriate that an interlocutory order should be made, restraining the deportation for a short period, to enable the case to be presented properly. Reference is made to the views of Jenkinson J. at pages 2-6 of his Honour's Reasons for Judgment in Dallikavak v. Minister of State for Immigration and Ethnic Affairs (Full Court, Federal Court of Australia, Northrop, Jenkinson and Pincus JJ., 6th August 1985, not yet reported).

2. The matter came on for the hearing of a further interlocutory application on 7th February 1986. Counsel for the applicant then invited me to find that there was a serious question to be tried. Counsel for the respondent drew my attention to the more liberal test put forward by Jenkinson J. in Dallikavak's case, but in view of the opportunities which the parties had then had to prepare and present their cases, it is appropriate to require at least that there be a serious question to be tried, before granting an interlocutory injunction.

3. The decision of which review is sought is a decision of a delegate of the Minister dated 28th January 1986, expressed in terms that the applicant "be deported from Australia". The applicant is said to be aggrieved by the decision because he has been denied a temporary entry permit, he has been denied an entry permit, he has been denied "resident status", and he is to be deported from Australia. The grounds contained in the application are that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purportedly made, that the decision involved an error of law, and that the decision was otherwise contrary to law.

4. It appears from the material before the Court that the applicant was born on 28th December 1961 in Vietnam. In 1975, he fled Vietnam with his family, and went to the Philippines. After a short stay there, the family migrated to Taiwan. There the applicant remained with his brother, while the rest of the family moved to Hong Kong. After approximately five years in Taiwan, the applicant spent some time with his family in Hong Kong, before coming to Australia.

5. The applicant acquired a passport in Taiwan, which describes him as a national of the "Republic of China". He lived in Hong Kong on a series of temporary permits. He came to Australia on 1st December 1984, and was issued with a temporary entry permit for three months, subject to the condition that employment was prohibited without the written permission of an authorised officer. The applicant did not apply for a renewal of that permit.

6. On 8th January 1986, the applicant was apprehended by officers of the Department of Immigration and Ethnic Affairs at a place in Springvale, where he was then living. He was placed in custody at the Immigration Detention Centre at Maribyrnong. On the following day, he was interviewed.

7. The important facts which emerged from the interview related to the applicant's employment in Australia, the presence of members of his family in Australia, and his engagement to marry. It appears that the applicant obtained a job as a process worker with James Hardie Containers in Springvale, where he worked from September 1985 until his apprehension. He has a brother who is a permanent resident in Australia, and his parents are in Australia with temporary entry permits valid until March 1986. There is also a sister who is a prohibited non-citizen, having overstayed a temporary entry permit which expired on 24th May 1985. The applicant is engaged to be married to Hua Gia Hong, who was also born in Vietnam. She is a single woman, approximately six months older than the applicant, who holds permanent residency status in Australia, and lives at Sale. They had intended to be married while the applicant's parents were still in Australia.

8. On 13th January 1986, Ms. Hua was interviewed. It appears that she lives with her three brothers and one sister-in-law in Sale. On 17th January 1986, Ms. Hua was again interviewed, and asked to explain the fact that she had previously applied to sponsor a man from a refugee camp in Malaysia, whom she described as her fiance. She gave an explanation that she had intended to marry this man, but upon finding that he had taken up with another woman in the refugee camp in Malaysia, she ceased her efforts to assist him to come to Australia.

9. In a written submission dated 13th January 1986, the solicitors for the applicant sought to make out a case for the applicant to be allowed to remain in Australia. The submission dealt with the applicant's history prior to his coming to Australia, his decision to overstay his temporary entry permit (which was said to have been prompted by the fact that a brother who had married an Australian citizen was coming to Australia as a permanent resident), the genuiness of the applicant's intention to marry, the applicant's character and repute and suitability to settle in Australia, and difficulties which the applicant would have in returning to Hong Kong. It was stated that he would have to return to Taiwan, where he has no family or friends. Reference was made in the submission to "humanitarian grounds" and to "compassionate grounds".

10. On 28th January 1986, the delegate of the Minister had placed before him a submission prepared by an officer of the Department of Immigration and Ethnic Affairs, together with various annexed documents. The delegate adopted the findings on material questions of fact contained in that document, on the basis of the evidence set out in it, and adopted the reasoning set out in the part of the submission described as "assessment", as his own conclusion. This is apparent from his statement of reasons, supplied to the applicant's legal advisors on 31st January 1986.

11. Upon the expiration of his temporary entry permit, the applicant became a prohibited non-citizen, by virtue of s. 7(3) of the Migration Act 1958. Under s. 7(2), a further temporary entry permit may be granted in such circumstances. Section 6A(1) provides (so far as is relevant) as follows:

"6A. (1) An entry permit shall not be granted to a
non-citizen after his entry into Australia unless one or
more of the following conditions is fulfilled in respect
of him, that is to say-

. . .

(c) he is the holder of a temporary entry permit
which is in force and the Minister has
determined, by instrument in writing, that he
has the status of refugee within the meaning
of the Convention relating to the Status of
Refugees that was done at Geneva on 28 July
1951 or of the Protocol relating to the Status
of Refugees that was done at New York on 31
January 1967;

. . .

(e) he is the holder of a temporary entry permit
which is in force and there are strong
compassionate or humanitarian grounds for the
grant of an entry permit to him."

The power to order the deportation of a prohibited non-citizen is found in s. 18 of the Act. Section 20(1) provides that, where the Minister has made an order for the deportation of a person that person shall, unless the Minister revokes the order, "be deported accordingly". Section 21A, which was inserted in the Act by Act No. 117 of 1979, makes the deportee liable to pay to the Commonwealth an amount equal to the passage money and other charges payable in respect of his or her conveyance to a place outside Australia. Section 22 requires that a deportee be received on board a vessel (which is defined by s. 5(1) as including an aircraft) for conveyance to a place specified in the requirement.

12. As it was argued, the case for the applicant on the interlocutory application concentrated upon the ground specified in s. 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977, namely that the making of the Minister's decision was an improper exercise of the power conferred by s. 18 of the Migration Act 1958. It was suggested that the Minister's delegate had failed to take a relevant consideration into account, had exercised a discretionary power in accordance with a policy without regard to the merits of the particular case, and had exercised his power in such a way that the result of the exercise of the power was uncertain (see s. 5(2)(b), (f) and (h) of the Administrative Decisions (Judicial Review) Act 1977). When examined carefully, much of the applicant's argument really amounted to the proposition that the Minister's delegate should have placed more weight upon some factors than he appears to have done. For instance, it was said that a relevant consideration which was not taken into account was the hardship which would result to the applicant's fiance if the applicant were to be deported before their marriage could take place. It is clear, however, from an examination of the material before the Court, that the Minister's delegate was well aware of the expressed intention of the applicant and Ms. Hua to marry. It must have been apparent to the delegate that the immediate deportation of the applicant would prevent that marriage from taking place. In those circumstances, it is difficult to contend that the delegate failed to have regard at all to the hardship which might be caused to Ms. Hua. Indeed, what the material before the Court does disclose is that the delegate weighed various factors, including the intention to marry, and reached a conclusion after balancing all of those factors. That he did not specifically mention hardship to Ms. Hua is not evidence that he failed to take into account a relevant matter. As Deane J. said in Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR 363, at page 375:

"In a case such as the present, where relevant
considerations are not specified, it is largely for the
decision-maker, in the light of matters placed before
him by the parties, to determine which matters he
regards as relevant and the comparative importance to be
accorded to matters which he so regards. The ground of
failure to take into account a relevant consideration
will only be made good if it is shown that the
decision-maker has failed to take into account a
consideration which he was, in the circumstances, bound
to take into account for there to be a valid exercise of
the power to decide."

The applicant's argument, in respect of a number of factors, was really that the Minister ought to have reached a different conclusion, by giving more weight to the factors mentioned, and less weight to other factors to which reference was made in the documents relied on in the statement of reasons. An instance of this latter category of factors was Ms. Hua's previous attempt to sponsor her earlier fiance to come to Australia. It was sought, by affidavit of Ms. Hua, to explain in detail the circumstances of this earlier attempt at sponsorship, and to lead evidence of a communication, apparently not recorded in the files of the Department of Immigration and Ethnic Affairs, to the effect that she no longer wished to sponsor that person. This type of attack upon the decision of the Minister's delegate misunderstands the jurisidiction which the Court has under the Administrative Decisions (Judicial Review) Act 1977. The weight to be given to any particular factor is a matter for the Minister or his delegate. It is not open to the Court to say that the Minister or his delegate ought to have reached a different conclusion on the material which he or she considered.

13. No case was made out, therefore, for the making of an interlocutory order staying the applicant's deportation upon the footing that the Minister's delegate had failed to take into account relevant considerations.

14. It was also put that the Minister's delegate had applied as a matter of course the statement of policy on illegal immigrants, tabled in the House of Representatives in October 1985 by the Minister for Immigration and Ethnic Affairs (a copy of which was tendered in evidence), without due consideration of the merits of the particular case. At pages 9 and 10 of the statement of policy the following appears:

"Changed circumstances advanced in support of an
application to remain (e.g. development of ties in
Australia), but which arose or developed after the
expiry of an entry permit, normally will be given little
weight.

A temporary separation and the costs arising from return
home to apply for migration in the normal manner will
not normally be regarded as mitigating circumstances
accorded significant weight."

The Minister's delegate does appear to have adopted these considerations with reference to the applicant's intention to marry Ms. Hua. There is nothing to show, however, that he did so without consideration of the merits of the case; indeed, the material accompanying the statement of reasons indicates to the contrary. There can be no doubt that it is open to a decision maker to apply a broad policy to a particular case for decision. The fact that a decision maker finds a case to be a "normal" case, and not one to which the policy should not apply, does not mean that the policy has been applied blindly. In the present case, there is nothing to indicate that the Minister's policy was applied without consideration of the merits of the applicant's case. There is no ground for believing that, at the trial of this proceeding, the applicant will be able successfully to attack on this ground the decision to deport him.

15. In the course of argument, there emerged two criticisms of the decision to deport, which were not part of the applicant's case as it was originally put. The first of these raised a question whether the applicant had been denied natural justice when the delegate of the Minister purported to reject the possibility of granting the applicant a temporary entry permit, or an entry permit, without any application for such permits having been made, and without the applicant having been notified that these possibilities were being considered. The second matter concerned the failure of the Minister to assign any destination for the applicant as part of his deportation order.

16. As to the question of denial of nature justice, it has been held by the High Court of Australia in Kioa v. West (18th December 1985, not yet reported) that a prohibited non-citizen is entitled to natural justice, or procedural fairness, before a decision to deport is made. At first sight, s. 18 of the Migration Act 1958 appears to have no connection with the powers contained in ss. 6, 6A and 7; it is not readily apparent that the Minister or a delegate considering whether to deport a prohibited non-citizen is obliged to consider whether to grant to the proposed deportee a temporary entry permit. In turn, unless the proposed deportee had a temporary entry permit, the Minister could not grant a permanent entry permit on the grounds specified in paragraphs (c) and (e) of s. 6A(1). As a matter of law, it would be possible for the Minister to decline to order the deportation of a prohibited non-citizen, without granting any form of entry permit to such person. Indeed, the possibility exists that action other than deportation may be taken against a prohibited non-citizen, e.g. prosecution for an offence of becoming a prohibited non-citizen upon the expiration of a temporary entry permit, pursuant to s. 27(1)(ab). It would be possible for the Minister or his delegate to decline to deport a prohibited non-citizen, without granting any form of entry permit, and simply to leave the prohibited non-citizen with the status of prohibited non-citizen, within Australia. For practical purposes, however, most prohibited non-citizens who wish to avoid deportation will apply for the grant of a further temporary entry permit, pursuant to s. 7(2) of the Act, either for the purpose of remaining in Australia only for the period of such further temporary entry permit, or for the purpose of making an application for a permanent entry permit, on one of the grounds specified in s. 6A(1), for which a temporary entry permit is a pre-requisite. In Kioa v. West, an application for a further temporary entry permit had been made by one of the persons whose deportation had been ordered. It was recognized in the judgments of the members of the High Court of Australia who heard that case that, for practical purposes, a decision of the Minister or his delegate to deport involved a rejection of any application for a temporary permit. On the facts of Kioa v. West, it was seen as unnecessary for there to be separate decisions with respect to deportation and a further temporary entry permit. Reference is made to the judgments of Gibbs C.J. at page 9, Mason J. at page 34, Wilson J. at pages 57-58, and Brennan J. at pages 87-88 of the print of the judgment.

17. In the present case, the applicant never made any application for a further temporary entry permit. Nor did he ever make any application pursuant to s. 6A(1) for any entry permit. It is true that his solicitors' submission raised questions of "humanitarian grounds" and "compassionate grounds", and he is described in the material which was the basis for the delegate's decision as a "refugee from Vietnam". That material also, however, makes it clear that no application for a temporary entry permit had been made. The applicant was never invited to make any such application. Nor was he invited to put forward material which might be specifically relevant to the grounds contained in s. 6A(1), especially those found in paragraphs (c) and (e). Notwithstanding this, the Minister's delegate appears to have relied upon the applicant's failure to fulfill any of the conditions of s. 6A(1), as part of the reasoning which led to the decision to order the applicant's deportation.

18. It appears to me to be arguable that, before ordering the applicant's deportation, on the footing that he could not rely upon any of the grounds contained in s. 6A(1), the Minister or his delegate was obliged to give the applicant a fair opportunity to state whether he wished to apply for a further temporary entry permit, and subsequently for an entry permit pursuant to s. 6A(1), and to put forward any material relevant to a grant of a further temporary entry permit, and the grounds contained in the sub-section. It is arguable that the failure to give such an opportunity amounted to a denial of natural justice. In Kioa v. West, at page 40 of the judgment print, referring to a deportation order, Mason J. said:

"And if the order is made in consequence of a refusal to
grant a further entry permit to him, the reasons on
which that refusal is based may require that as a matter
of fairness the person affected should have the chance
of responding to them."

The present case appears to be one in which the Minister's delegate has made a deportation order on the basis of a refusal to grant a further temporary entry permit, no application for which was made, without advising the applicant that this was the intention of the delegate, and without giving him an opportunity to make such an application, and to support it if he could do so. In my view, a serious question to be tried arises as to whether such a deportation order is not vitiated by a denial of natural justice.

19. The remaining question concerns the failure of the deportation order to contain any indication of the destination to which the applicant should be sent. The material relied on by the Minister's delegate contains some discussion of difficulties which the applicant would face in being sent to the various countries with which he has had some previous connections. As no decision appears to have been made concerning a destination for the applicant, this material must be taken to have been considered on the issue whether the applicant should be deported at all.

20. An important question arises as to the meaning of s. 18 of the Migration Act 1958. That section permits the Minister to order "the deportation" of a prohibited non-citizen. The question is whether the Minister can simply order that a person be deported, as was done in the present case, or whether he or she is obliged to order that a person be deported to a particular place.

21. In determining this question, of paramount importance is an examination of the provisions of the Act in which s. 18 appears. As has already been pointed out, s. 20(1) requires that a person whose deportation has been ordered "be deported accordingly". No express power is granted by the Act to any person to make a decision, subsequent to the decision to deport, as to the destination of a deportee. It is unthinkable that the Parliament intended that a deportee should simply be removed from Australia, and nothing more. Such an intention would permit the dropping of a deportee into the ocean outside the territorial limits of Australia. Section 22 of the Act appears to be based on the assumption that the deportee will be bound for a specific destination; it allows for a requirement to be addressed in writing to the master, owner, agent or charterer of a vessel, requiring the deportee to be conveyed to a specified place. It would be odd if such a provision were held impliedly to give rise to a power in some officer of the Department of Immigration and Ethnic Affairs, or some other person, to choose the specified place. In the absence of clear statutory authority to make a decision as to destination, the possibility might exist of more than one officer of the Department making a decision, and of such decisions being inconsistent with each other. Another important consideration is that s. 21A of the Act now requires the deportee to pay to the Commonwealth an amount equal to the passage money and other charges payable in respect of his or her conveyance "to a place outside Australia". The amount for which a deportee may become liable will depend upon the distance from Australia, and ease of access, of the place to which he or she is sent. A decision as to the destination of a deportee therefore affects the property of the deportee; it is the kind of decision which arguably attracts the principles of natural justice. These considerations all tend to support the proposition that the power to order deportation in s. 18 is a power to order that a prohibited non-citizen be removed from Australia and sent to a specific place, rather than that such a person simply be removed from Australia.

22. It was argued by counsel for the respondent that the Court would be precluded by authority from taking this view. Reference was made to the decision of the High Court of Australia in Znaty v. Minister of State for Immigration [1972] HCA 14; (1972) 126 CLR 1. In that case, the Minister had ordered that a prohibited immigrant, who wished to be allowed to leave Australia and go to Japan, should instead be deported to Morocco. It was argued in the High Court that this decision was invalid, because the Minister did not have the power to specify a place to which a prohibited immigrant should be deported. This contention was rejected by a majority of the High Court. Nothing said in the judgments of the High Court appears to me to touch the question whether the word "deportation" in the context of the Act as it presently stands involves as one of its elements the choice of a particular place to which a person will be deported.

23. Counsel for the respondent referred to the statement of Barwick C.J. in R. v. Forbes; Ex Parte Kwok Kwan Lee [1971] HCA 14; (1971) 124 CLR 168, at page 175, that " . . . in my opinion there is no unexpressed condition to which ss. 18 and 20 (of the Migration Act 1958) are subject." That statement was made in the context of a case in which it was argued that the Minister could only make an order for the deportation of a prohibited immigrant within a reasonable time after the expiry of the prohibited immigrant's temporary entry permit. The question with which I am concerned is not one of the existence of implied conditions precedent to the exercise of the power to deport, but a question of the essential elements of the exercise of that power. Counsel also drew attention to Ferrando v. Pearce [1918] HCA 47; (1918) 25 CLR 241 and R. v. Home Secretary; Ex Parte Duke of Chateau Thierry (1917) 1 KB 922, as cases in which orders for deportation, in which no destination was specified, were upheld as valid. Each of those cases depends, of course, upon the context in which the power to order deportation is found in the relevant statute. In the first mentioned case, the High Court seems to have assumed (wrongly as Znaty's case shows) that the Minister would not have had power to order deportation to a specific place. I do not regard either case as standing in the way of the argument at the present time, and in the context of the present Act.

24. In R. v. Secretary of State for Foreign Affairs; Ex Parte Greenberg (1947) 2 All ER 550, at page 555, in discussing the question of the extra-territorial operation of a legislative provision for deportation, Jenkins J. said, "I think that one can go further, and say that the word "deportation" has implicit in it the taking of the person in question from the country from which he is deported to some other place . . . ". I regard it as seriously arguable that the purported order for the deportation of the applicant was wholly invalid, as it failed to specify a destination to which he would be taken.

25. My conclusion, therefore, is that serious questions do arise as to the validity of the decision to deport the applicant. Counsel for the respondent did not attempt to argue that the balance of convenience lay otherwise than in the applicant's favour. Plainly, it is more convenient for the applicant to remain in Australia until the hearing and determination of this proceeding than it would be for him to attempt to litigate against the Commonwealth as a deportee, with no right to re-enter the country. For these reasons, an order should be made restraining the respondent, until the hearing and determination of the proceeding or further order, by himself, his servants or agents, from acting upon the decision of the delegate of the Minister made on 28th January 1986, for the deportation of the applicant.

26. The applicant also applied for his release from detention, pending the hearing and determination of the proceeding. The grant of such an order is exceptional: Piroglu v. Minister for Immigration and Ethnic Affairs (1981) 4 ALD 323, Unlugenc v. Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569. Evidence was given by affidavit that the applicant would have a home, and be encouraged in complying with any conditions as to reporting, if he were released. No particular reason was shown, however, as to why he should be released. I do not, therefore, propose to order his release from detention.

27. The costs of the interlocutory application will be reserved. I shall also reserve liberty to apply.