Re Derek James Greaves v Minister of Immigration and Ethnic Affairs [1987] FCA 46 (19 February 1987)

FEDERAL COURT OF AUSTRALIA

Re: DEREK JAMES GREAVES
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G6 of 1987
Administrative Law

COURT

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

CATCHWORDS

Administrative Law - Deportation of prohibited non-citizen - Judicial Review - Natural Justice - Failure to consider relevant circumstances/consideration of irrelevant circumstances - Improper/unreasonable exercise of discretionary power conferred on the Minister by the Migration Act.

Migration Act 1958: ss. 6A, 18, 31A.

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

HEARING

SYDNEY
19:2:1987

Counsel and Solicitors for the Applicant: Mr. J. Hilton instructed by messrs. Warren McKeon Dickson, Miranda by their city agents, Messrs. Lakos Buntman Bard, Sydney 2000

Counsel and Solicitors for the Respondent: Mr. cowdery instructed by Mr. Orr, Australian Government Solicitor, St. James Centre, Sydney 2000

ORDER

That the deportation and other orders and decisions made against the Applicant on 7 January 1987 be quashed, other than the decision to revoke the orders and decisions of 19 December 1986. That the matters be referred to the respondent Minister for further consideration of the orders and decisions, in accordance with the Reasons for Judgment hereon.

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

DECISION

Pursuant to section 5(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"), the Applicant seeks a review of certain orders of the Respondent's delegate made pursuant to the Migration Act 1958 ("the Migration Act") on 19 December 1986 and 7 January 1987 including an order for his deportation from Australia. When filed, the Application was also brought by Jane Francis Kennedy, the fiancee of the Applicant, but by consent she was dismissed from the Application at the commencement of the hearing. The Applicant was arrested on 6 January 1987 pursuant to the deportation order made on 19 December 1986 and brought urgent proceedings before Mr. Justice Beaumont sitting in vacation for a temporary stay of the order pending the application for review. On the afternoon of 7 January 1987 after the proceedings before Mr. Justice Beaumont had taken place and his Honour had ordered a stay of the deportation order signed on 19 December 1986, the Minister's delegate purported to vacate the orders made on 19 December 1986 on the basis of certain errors of fact then made. He purported to make a fresh order for deportation on that day but gave an undertaking that the Applicant would not be deported pending this hearing.

2. The facts of this matter are quite strange. The Applicant arrived in Australia on 2 May 1982 and was granted a two month temporary entry permit. His arrival here came about because his mother, Mrs. Elizabeth McFarland, an Australian citizen who had been separated from her husband for some years, sought assistance from her two sons who were in England, the younger of whom was the Applicant. Mrs. McFarland was in ill health and in difficult financial circumstances. The Applicant was then married and he arrived in Australia with his wife. Both of them held British passports. The temporary entry permits granted to Mr. and Mrs. Greaves had a condition that neither of them do any work while they were in Australia.

3. In the events which occured, the Applicant in fact remained in Australia, separated from his wife and obtained employment. From his earnings he gave assistance to his mother. Late in 1982 a man named Vaughan and Mrs. McFarland apparently made application to sponsor the Applicant for permanent residence in Australia. The Department of Immigration & Ethnic Affairs appears to have lost or misplaced this application, and the accompanying application for permanent residency lodged by the Applicant and his then wife. With but periodic exceptions, the Department does not seem to have taken any particular steps to require the Applicant's departure from Australia until 26 February 1986 when he was arrested as a prohibited non-citizen and detained at the Villawood Detention Centre for about three weeks. He was then released on certain undertakings given to the Court after lodging an application to this Court to review the orders which were then in existence. It appears that between the time of his arrest and 13 March 1986, the Applicant sought a further temporary entry permit, a resident entry permit, permission to leave pursuant to section 31A of the Migration Act and permission to leave voluntarily. It seems that all of these applications were refused and his deportation was ordered on 13 March 1986. The Applicant sought a review of these decisions which was heard by Mr. Justice Sheppard. In his decision on 16 April 1986, his Honour found that the Applicant was not directed to leave Australia nor was he required to leave Australia until that deportation order was made. Mr. Justice Sheppard ordered that the decisions to refuse the other requests of the Applicant and to order his deportation should be set aside and remitted to the Minister or his delegate for further consideration according to law.

4. From what I can gather the Department received an application for resident status from the Applicant on 25 March 1986, that is approximately three weeks before Mr. Justice Sheppard's judgement, although his Honour's remarks do not give any indication that attention was drawn to it in the proceedings. On 11 September 1986 the Applicant applied for a further entry permit and for permission to engage in employment. On 19 December 1986 these applications, together with the application for resident status, were refused preparatory to the order of deportation made on that date which first gave rise to this application.

5. In the submission to the Minister's delegate made by the Department on 19 December 1986 prior to the deportation order, the earlier history of Mr. Greaves' applications and the circumstances of his having remained in Australia since 1982 were recounted in part. It was pointed out that Mr. Greaves had been under the impression that his application to remain in Australia was still in train, that he had no criminal record apart from speeding fines, that he believed that he would remain in Australia as his mother was an Australian citizen, and as he was anxious to marry his fiancee who was also an Australian citizen. It was pointed out that he had worked in Australia since his arrival largely in the motor trade and that he had therefore not been dependent upon anyone. His assertions were supported at the time by Mrs. McFarland and Ms Kennedy. The submission went on to point out that following upon Mr. Justice Sheppard's decision, he was told or it was decided that further consideration would be given to the Applicant's desire to depart Australia voluntarily if he was not granted an entry permit. Amongst the facts contained in that submission was an assertion (in paragraph 15) that when he was released from custody pending the hearing before Mr. Justice Sheppard, he had given an undertaking inter alia that he would report daily to the Department. It was asserted in the submission that he had failed to report as undertaken.

6. The delegate was also told that Ms Kennedy was absent from Australia from May 19 to July 28 1986. This is not contested by the Applicant who says that Ms Kennedy was at that time undertaking an overseas journey by way of a holiday which she had planned for a considerable time prior to leaving. Ms Kennedy in evidence before me corroborated that account. There was no contrary evidence, and I accept that it was a holiday and not a separation or break in the relationship.

7. On 20 June 1986, the Department wrote to Mr. Greaves as follows:

"As you are aware, on 16 April 1986 the Federal Court of

Australia set aside certain decisions made by the Minister's
delegate on 13 March 1986.

It is intended that the question of your continued stay in
Australia be put afresh to the delegate for decision.

Should the delegate decide that you may not stay in Australia
then the question of your voluntary departure from Australia
will be considered pursuant to s.31A of the Migration Act. Of
course it remains open to you to effect a voluntary departure
before the delegate arrives at a decision. You are therefore
invited to provide comprehensive submissions relevant to these
decisions for consideration by the delegate.

In the event that the delegate refuses to allow you to remain
in Australia or to depart voluntarily, a later submission will
be prepared regarding deportation. You will be advised prior
to such action to allow you the opportunity to present further
submissions. . . . "

8. A copy of this letter was sent to Mr Greaves' then solicitor. It is submitted on behalf of the Applicant that this letter clearly indicates that the Department proposed a consideration of the Applicant's position stage by stage. It is said that what this letter did was to request submissions as to whether he should be allowed to remain in Australia on the one hand or whether he should be permitted voluntary departure from Australia on the other. It is said that what the letter means is that if both of these applications were refused, the Applicant would be given an opportunity to make further submissions concerning his deportation.

9. That is certainly what the letter appears to say, although the writer of the letter ought to have given a little more consideration to the words used before despatching it. It seems to me to be obvious that if the Applicant was refused permission to stay or to depart voluntarily, there would be nothing more that could be put as to deportation. Deportation would appear to follow as a matter of course following the refusal of the earlier application.

10. Not only was a copy of this letter sent to the Applicant's then solicitor, as I have mentioned, but a letter with precisely the same substance was also sent to the solicitor direct, speaking of the Applicant in the third person. A copy of the letter to the solicitor was also sent to the Applicant so that the Applicant had available not one but two letters containing the assertions referred to. The solicitor, on the other hand, does not seem to have received either of the letters, as he wrote to the Department on 15 August 1986 following upon a telephone conversation with a Departmental officer on the same day saying that he had not seen the letter of 20 June. He might have said that he had not seen either of the letters of that day which were sent to him.

11. Through the good offices of Mr. Peter Coleman MP, member of the House of Representatives for the seat of Wentworth, the Applicant made a submission following upon and in response to the letter of 20 June 1986 and supported his submission with three references. Mr. Coleman's letter was dated 16 September 1986 and followed a reminder letter from the Department to the Applicant dated 4 August 1986 giving a further seven days to reply to the letter of 20 June. In the letter of 4 August 1986, a copy of the 20 June letter was said to be enclosed. This would have been the Applicant's third substantive copy of that letter. Mr. Coleman's letter of 16 September followed a telephone conversation between a Departmental Officer and one of Mr. Coleman's staff on 9 September 1986 in which the Department sought the utmost expedition in the submissions that were going to be made by or on behalf of the Applicant. For their part, Mr. Coleman's office advised the Department that the Applicant's former solicitor was no longer acting on his behalf. Notwithstanding receipt of that information only three days earlier, the Department wrote to the solicitor who was no longer retained on 12 September 1986 as follows:

"I refer to our letters of 20 June 1986 and 4 August 1986
concerning the question of Mr. Greaves continued stay in
Australia.

There is no record in the Department of a reply from you to
these letters. Consequently it is now proposed to place both
the matter of Mr. Greaves' continued stay and the question of
his deportation before a delegate of the Minister, in
accordance with the orders made by Sheppard J. in the Federal
Court Sydney on 16 April 1986. A submission addressing the
above will be put to a delegate seven days from the date of
this letter, or soon thereafter."

12. The Applicant says that he did not see this letter and has never received it. In the absence of any contrary evidence and having in mind the fact that four days later Mr. Coleman forwarded the Applicant's submission and supporting documents without referring to the letter of 12 September, I am prepared to accept that statement.

13. In the submission made to the delegate by the Department on 19 December 1986, the interpretation of the letter of 20 June 1986 advocated by the Applicant's counsel, is given a considerable boost. For part of paragraph 23 states as follows:

"DIEA, Sydney . . . invited submissions on the question of Mr.
Greaves' stay in Australia and voluntary departure and
indicated that should both be refused, a further submission on
the question of deportation would be invited."

14. The submission explains that the information given by Mr. Coleman's office on 9 September 1986 that Mr. Greaves' solicitors were no longer acting for him was not conveyed to Canberra until 16 September 1986, although it does not suggest that any allowance should be made as a consequence. Drawing attention to the letter from the Department's Canberra office of 12 September which concerns the question of his continued stay and his deportation, there is no reference to his 11 September applications for a further temporary entry permit and for permission to engage in employment.

15. It appears that the material forwarded by Mr. Coleman's office on 16 September was in fact prepared at least three weeks earlier. In this material the Applicant points out that he had divorced his former wife in May 1986 and wished to marry Ms Kennedy. He said that his mother was in hospital and that her medical condition was serious and required his constant attention. He said that he had property interests and debts which he was paying off and that he was considerably distressed.

16. The response to Mr. Coleman's letter of 16 September enclosing the Applicant's submissions and supporting material in reply to the letter of 20 June was a request to the Applicant to attend the Department for an interview. This took place on 27 November 1986 with a Departmental Officer named Suzanne Tatam. It seems clear from the content of this interview that Ms Tatam had available the letter of 20 June but that she did not then know of the letter of 12 September which the Applicant had also not seen. No part of the interview as recorded by Ms Tatam verbatim in longhand refers to the question of deportation at all. In a covering handwritten memorandum completed on the same day, Ms Tatam records that she explained to Mr. Greaves that the purpose of the interview "was to establish his current circumstances with particular regard to his relationship with Ms Kennedy". The note further records the Applicant's information that "he is still residing with Ms Kennedy and that they are planning to marry in January 1987".

17. On the other hand, Ms Tatam added at the end of the memorandum that "the contents of the interview wouldbe sent to central office where a submission addressing the questions of residence, t.e.p., voluntary departure and deportation would be addressed". Mr. Greaves has given evidence that Ms Tatam did not mention deportation to him. He says that he is sure that if deportation had been mentioned, he would have remembered it. Ms. Tatam, on the other hand, says that it was mentioned and although she relies on her notes for recollection of what was said, she believes she could recollect the conversation without the notes.

18. In cross-examination, Ms Tatam said that the 27 November interview with the Applicant was requested of her by a superior in Canberra by telephone on 19 November for the purpose of updating the Applicant's situation as an aid to the decisions to be made there soon. She says that she assumed that the matters of residence, temporary entry permit, voluntary departure and deportation would be dealt with together. As I have previously observed, this would have been a most reasonable assumption if the 20 June letter had not indicated that they would not be dealt with together.

19. Ms Tatam says that the November interview was designed to ascertain if there had been any change in the Applicant's situation since his previous interview and that she thought she remembered raising the matter of deportation because that is what she usually does. When it was pointed out to her that the paragraph of her handwritten memorandum which refers to deportation followed a recording that the applicant had undertaken to present his passport and notice of intent to marry to her office in the following week, and that it appeared to be unlikely that deportation would be mentioned in and after such a context, she demurred.

20. I think it is most unlikely that deportation would have been mentioned after such a reference, particularly as Ms Tatam says that she had the letter of 20 June but did not have the letter of 12 September. Whilst I can readily understand that she would have assumed that deportation would be dealt with at the same time, I doubt on the evidence that she did mention it, as her memorandum appears to suggest. The paragraph of the memorandum which contains reference to deportation is ungrammatical and clumsy and does not seem to be the type of thing that would have been said. Her recollection was in my view based more on assumption and general practice than on an actual recall. Deportation is a most serious matter and hardly appropriate for a throw-away line at the end of a reasonably lengthy interview dealing with other much more positive matters. I can well understand that Ms Tatam's recollection has been confused by her pressure of work and the number of cases she is handling at any one time.

21. Thus the state of affairs that existed at the end of the interview of 27 November was that the Applicant was entitled to believe that he was not under an imminent threat of deportation or even that his deportation was being considered. Even if it was mentioned, the Applicant would have been entitled to believe from the nature of the interview that the other matters were first to be considered and that the question of deportation would be considered later following the promised opportunity to make the further submissions permitted at that time.

22. On 4 December 1986, the Applicant's new solicitor received a letter from the Department after a telephone conversation with a Departmental Officer on the same day. The letter seeks information concerning the Applicant's recent employment activities and followed a visit by Departmental Officers to the premises of Purnell Motors Pty. Ltd, a vendor of motor vehicles at Arncliffe. The letter also sought particulars of Mr. Greaves' plans to marry on 24 January 1987, that being the date which he had given to Ms Tatam in the interview of 27 November 1986. The Departmental letter "reiterates" the Department's view that the "best way to resolve (the matter) is for Mr. Greaves to attend for an interview. . .". By the use of the word "reiterate", I assume that this view was also put in the telephone conversation between Mr. Greaves' solicitor and the Department on 4 December 1986. The letter makes no reference to deportation at all. Indeed its contents are such that any reasonable person reading it would be entitled to assume that deportation was not under active consideration at the time the letter was prepared.

23. The Applicant's solicitor wrote in reply on 9 December. Apart from taking issue with some of the details of the telephone conversation, it does not supply any other information the Department had been seeking in its letter of 4 December. Indeed, on the same day, the solicitor wrote to Mr. Greaves seeking replies to the matters sought in the Department's letter. The solicitor says that he spoke with Ms Tatam on 16 December when she telephoned him. He says that in that conversation Ms Tatam indicated that the Department was awaiting the Applicant's answers to the questions so that submissions could be put to the Minister concerning his application for permanent residency status. He says further that she imposed no time limit on the provision of the answers to the questions or mentioned any consequences of failing to reply within any stated or unstated time. He says that Ms Tatam did not mention deportation in that conversation. Ms Tatam says that the only conversation she had with the solicitor was on 17 December in which she did indicate that if there was no reply to the Department's letter of 4 December, the deportation submission would have to proceed.

24. The Applicant says, and Ms Kennedy corroborates, that at about this time he tried to telephone Ms Tatam to fix an appointment but she did not answer the telephone on the number he had been given. He says that he did speak to her earlier when he telephoned to say that he wanted to discuss his case with a Departmental Officer and that Ms Tatam had asked whether Ms Kennedy could accompany him. He says that Ms Tatam did not refer in that conversation to his relationship with Ms Kennedy or to his employment and did not ask him questions concerning the currency of his present solicitor's retainer. Her notes and recollection are different in that regard both in relation to conversations with the Applicant and with his solicitor. Ms Kennedy had apparently received a letter from the Department shortly before the conversation.

25. The solicitor's evidence is that in the 16 December telephone conversation, Ms Tatam had told him that the Applicant had contacted her the day before (which would have been 15 December) and had indicated that he wished to attend for an interview. The solicitor says that Ms Tatam telephoned him again on 17 December and asked if he had spoken to the Applicant. He told her that he had left a message at Purnell Motors to ask the Applicant to call him and that Ms Tatam had replied that it was "in Mr. Greaves' best interests to reply". The solicitor is quite certain that the word "deportation" was not used either by him or by Ms Tatam. He says that he spoke to Ms Tatam on 17 December between 10 and 11 am and in fact sopke to Mr. Greaves at about 4 pm or later. The Applicant, Ms Kennedy and the solicitor all say that there were no other conversations with any officer of the Department prior to the deportation order of 19 December.

26. I am satisfied that when the deportation order was made on 19 December, neither the Applicant nor anyone with whom he was associated had any idea that it was about to be made or even under consideration. Not only was the Applicant not given the opportunity to make submissions as to deportation; his attention had been positively directed to matters which he was entitled to believe, and were in fact, related not to deportation but only to his applications to be permitted to stay in Australia under one entitlement or another.

27. Ms Tatam's notes of telephone conversations with both the Applicant and his solicitor are all dated 16/12/86, with the exception of the most disputed one of all which was dated 16/12/86 but has been overwritten so as to read 17/12/86. If Ms Tatam's note with 17/12/86 superimposed on 16/12/86 does in fact mean that the conversation there recorded took place on 17 December, then the submissions made to the delegate both on 19 December and on 7 January contain an error in paragraph 31 suggestive that there was no further contact either by the Applicant or Miss Kennedy on the one hand or the Applicant's solicitor on the other, following 16 December 1986. If Ms Tatam's note was available to the drafter of the submission, he or she must also have decided that the 17 December date was in error. I am of the opinion that these notes were probably all made on 16/12/86 but that due no doubt to Ms Tatam's impressive workload, not everything contained in the notes occurred on that date.

28. In the submission to the delegate on 19 December 1986, the Department drew attention to a number of negative factors that should be weighed in favour of the Applicant's deportation. It was pointed out that being a prohibited non-citizen is not an insignificant offence against the law, "in the way Mr. Greaves so became". I agree that to become a prohibited non-citizen is an offence against the law but I cannot see that the circumstances which surround Mr. Greaves' offence of this description is especially more significant than the same offence by others. No particulars are given to the delegate to suggest that Mr. Greaves' offence is worse than that of any others.

29. The submission also points out that he committed the offence of undertaking unauthorised employment, but it is not pointed out that he had made his unlawful employment known to the Department over a period of may years. No explanation or information was given to the delegate as to how it would have been expected that Mr. Greaves could have remained in Australia from May 1982 to December 1986 without being able to earn a living. The fact of his consequent declining to rely on public or other persons' funds was not adverted to. Nor was the support he had been giving to keep alive his ailing Australian mother who might otherwise have been destitute.

30. The submission attaches pages 25 and 26 of the reasons for judgment of Mr. Justice Sheppard of 16 April 1986 in which his Honour refers to the matter of some traffic fines which were unpaid at the time when Mr. Greaves was then arrested. What was not included were pages 28 and 29 of his Honour's reasons for judgment in which the following words occur:

"Without wishing to indicate any course they (i.e. the
Minister of his delegate) should take, I would point out that
had the letter of 1 September 1983 come to Mr. Greaves'
attention, the probabilities are that he would long since have
left Australia, with the consequence that his application for
permanent residence would by now probably have been processed.

Furthermore, his mother's health is not improving and she
continues to age. The current policy, in some circumstances,
imposes in effect a penalty of five years before an
application for permanent residence may be renewed. That
applies in circumstances where a prohibited non-citizen is
being deported. It would seem to me to be, to say the least,
unfortunate if such a penalty, or indeed any penalty, were
imposed in the present case. I say that particularly because
of the mother's condition . . . If his position had been
regularised (in September 1983), as it might have been, even
if he had had to return to England for a period, he would not
now be in his present predicament."

31. His Honour had pointed out earlier in his judgment that the letter of 1 September 1983 from the Department to the Deputy Prime Minister, then intervening on Mr. Greaves' behalf, had in substance indicated that if he and his then wife had left Australia at that time, he could have been sponsored here as a permanent resident by his mother. It was, to say the least, most selective of the submission writer to choose some apparently detrimental remarks of his Honour but not also include these additional significant observations.

32. The 19 December submission asserted three times (paragraphs 15, 40 and 43) that Mr. Greaves had failed to comply with a supposed undertaking given to the Federal Court that he would report daily to the Department. It is now admitted that this was an incorrect assertion, brought about in part by the mislaying of the reporting card in the Sydney office and partly by a misunderstanding of what the undertakings were and in respect of what period they had been given. Those given before Mr. Justice Sheppard's judgment did not extend beyond the date of that judgment or the hearing shortly before it, yet it was implied in the submission to the delegate that they did.

33. It is now admitted that this was an incorrect assertion, brought about in part by the mislaying of the reporting card in the Sydney office and partly by a misunderstanding of what the undertakings were and in respect of what period they had been given. Those given before Mr. Justice Sheppard's judgment did not extend beyond the date of that judgment or the hearing shortly before it, yet it was implied in the submission to the delegate that they did.

34. The submission also attempted to throw doubt upon the solidity and stability of the relationship between Mr. Greaves and Ms Kennedy. I am of the opinion that there is not justification for these doubts and that in fact the material used by the person who made this submission was not supported by the facts. Although for various understandable reasons their wedding plans have proved somewhat fluid, and Mr. Greaves presents as somewhat vague on certain matters, I am satisfied that they are two people in love who have had to handle some tremendous stresses and difficulties in the way of their marriage. Ms Kennedy was especially persuasive in this regard. She presents as a sensitive and sensible woman. A conclusion or inference that they are not serious about their marriage plans is on the evidence quite misconceived. The so-called "facts" presented to the delegate on this matter are either not facts at all or were quite misrepresented.

35. The delegate was also informed that it would be justified to deport Mr. Greaves and not to grant him voluntary departure because of what are described as his "offences against the law". The context indicates that the writer was not referring to the offences under the Migration Act, but to traffic offences. It appears that the Departmental file has a record of a conviction for having driven with an excess of the prescribed concentration of alcohol in his blood. The Applicant says, and it was not otherwise suggested, that he has not been convicted of any such offence. He admits to an offence on 1 October 1982 of speeding in main street of Cundletown in northern N.S.W., but does not admit any other offences. No evidence has been brought to suggest that he has been guilty of any other offences against the law. Only parking offences were ever suggested. In the circumstances, whilst it is touching and reassuring that the Department of Immigration & Ethnic Affairs should assume the long neglected role of protecting the Australian people against British law breakers and traffic offenders by the use of its power to refuse them the right to reside in Australia, Mr. Greaves does not appear to me to come within a category suggestive of imminent critical danger to the Australian moral fabric. This was an entirely irrelevant consideration.

36. Notwithstanding the flaws in this submission, the delegate's deportation order became the basis for the arrest of Mr. Greaves on 6 January 1987 and the application to Mr. Justice Beaumont for a stay on 7 January. Without notice to anyone but on the afternoon of the orders of Mr. Justice Beaumont on 7 January 1987, the Minister's delegate purported to vacate the order of 19 December 1986 on the basis of some one or more of the errors of fact to which I have referred. A further submission was tendered to the delegate on that day prior to the vacation of the orders. This deleted two of the three assertions of Mr. Greaves' failure to comply with undertakings to the Federal Court but was in all other respects (other than a couple of formal matters) identical with the submission of 19 December. The third reference to the failure to keep undertakings and the reference to Mr. Greaves' "offences against the law" remained unchanged in the 15 page submission presented to the delegate on 7 January 1987.

37. The Applicant's counsel makes two submissions with regard to the so called "vacation" of 19 December deportation order. He says firstly that there is no power to vacate a deportation order and that therefore the purported vacation was invalid. Alternatively, he says that before the 19 December decision could be vacated, there should have been permitted submissions from the Applicant on the subject. An additional part of this submission is that before the 7 January orders and decisions were made, submissions should also have been permitted.

38. I reject the first submission that there is no power to vacate an order of deportation. Section 20(1) of the Migration Act gives the Minister a power to revoke an order of deportation and I can see no effective difference between revoking an order and vacating a decision to make an order (see also Acts Interpretation Act 1901 s.33(4)). I also do not believe that natural justice is denied when a decision to deport someone is revoked. After all, the submissions that were made and are entitled to be made in advance of a deportation order designed to prevent its being made, are directed towards permitting the Applicant to remain in Australia and preventing a deportation order being made. There can be no denial of natural justice if a deportation order once made is revoked so that the result is that the Applicant however temporarily is permitted to remain in the country as he had been requesting.

39. I am also of the opinion that there is no substance in the separate submission that the Applicant had no notice of a decision to make an order of deportation on 7 January and was not permitted to make submissions about it. However, the submission of 7 January being in all relevant respects, other than deletions to which I have referred, indentical with the submission of 19 December, and repeating as it does the reference to the Applicant's "offences against the law and lack of regard for such matters as undertakings given to the Court", brings to account in respect of the deportation orders of 7 January any and all of the failings that would have applied to the 19 December decision to deport if it had not been revoked. In other words, although I do not believe that the Applicant was entitled to be heard afresh on the 7 January decision to deport, the Department must be held to account in respect of any statutory failings under the relevant law that attach to the 19 December decisions.

40. The basis of the application is that provided by sections 5(1)(a) and 5(1)(b) of the ADJR Act. These provide for assertions:

(a) that there was a breach of the rules of natural justice in

connection with the making of decision;

(b) that the making of the decision involved an improper exercise of

the powers conferred by the Migration Act.

The particular assertions made in respect of the last mentioned attack on the decision are those provided by section 5(2)(a), (b), (f) and (g). These are that the decision maker:

1. took irrelevant considerations into account;

2. failed to take relevant consideration into account;

3. exercised a discretionary power in accordance with a rule or

policy without regard to the merits of the particular case;

4. exercised his power so unreasonably that no reasonable person

could have so exercised the powers.

Natural Justice

41. It was argued that natural justice was required to be given in relation to the deportation decision on 7 January. Reliance was placed on the decision of the High Court in Kioa & Ors. v. West & Anor. (1985) 62 ALR 321 at 348 and 349 in the judgment of Mr. Justice Mason and at 366 in the judgment of Mr. Justice Brennan. Reliance was also placed on The Minister for Aboriginal Affairs v. Peko Wallsend Ltd. (1986) 66 ALR 299, especially at 310 in the judgment of Mr. Justice Mason.

42. These passages are by now too well known to set them out in full here, as are the remarks of Mr. Justice Fox in Sinnathamby v. The Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502 at 506. It is clear that the facts and circumstances of this case call for some natural justice to have been accorded to the Applicant.

43. Some five assertions of breaches of natural justice were made:

1. that the Applicant should have been given the right to be heard

prior to the decision on 7 January 1987 to sign a deportation
order;

2. that he should have been notified of the revocation on that date

of 19 December decision to deport especially as he was arrested
on 6 January and was at the time when these decisions were made
held in custody at the Villawood Detention Centre;

3. that there was an inadequate opportunity made available for him

to be heard in relation to the decision to deport on 19
December;

4. that that inadequacy applied also to the decision of 7 January

by reason of the fact that he was not given a separate right to
be heard in relation to that decision, especially with regard
to the rejection of the application that he be permitted to
leave voluntarily;

5. that he had a specific right to be heard in relation to the

assertions made in both submissions, namely that:

(i) he had committed offences against the law;

(ii)he had shown a lack of regard for undertakings given to
the Court;

(iii)no confidence could be entertained that he could be
relied upon to leave of his own volition, if voluntary
departure was permitted.

44. As I have previously indicated, I believe that the Applicant was given no opportunity at all to be heard in relation to the decision to deport on 19 December 1986 and that, as he was also not given an opportunity to be heard in relation to the same decision made on 7 January 1987, and those decisions were made on the basis of submissions which had preceded the 19 December decision, he was also not given an opportunity to be heard in relation to the operative decision of 7 January. It seems to me that this was a right which on the authorities he was entitled to be granted.

Irrelevant Considerations

45. Three principal matters are relied upon, namely:

(a) that the Applicant had failed to report pursuant to the

undertakings to the Court;

(b) that he had committed offences against the law;

(c) that the facts demonstrated that there was a doubt about the

genuineness of his attachment to and and intention to marry Ms
Kennedy.

46. As I have previously indicated, I find that each of these three items were taken into account, that they were all either incorrect in fact or significantly misrepresented. It should be noted so far as the relationship with Ms Kennedy is concerned, that in the proceedings before Mr. Justice Sheppard, Ms Kennedy who gave evidence was not cross-examined to suggest that her relationship with the Applicant was not both continuous and genuine. The facts relied upon in the submissions, both on 19 December 1986 and 7 January 1987, pre-date the hearing before Mr. Justice Sheppard. The delegate was misled in the two submissions under consideration here into a belief that the facts relied upon had some special and relatively one-sided connotation.

47. I believe that there are, in addition to the matters relied on, other irrelevant considerations that it appears the delegate took into account, but it will suffice to hold for present purposes that the matters relied upon by the Applicant properly fall for categorisation under this heading.

Relevant Matters Not Considered

48. The Applicant relies here on three principal omissions:

(a) the observations of Mr. Justice Sheppard on pages 28 and 29 of

his Honour's Reasons for Judgment, were not drawn to the
delegate's attention and they place in a completely different
light the observations which his Honour made at the pages which
were drawn to attention;

(b) the consequences to Australian citizen Mrs. McFarland and to the

Applicant that would arise from his absence from Australia for
five years following deportation;

(c) the virtual certainty of his impending marriage to an Australian

citizen, Ms Kennedy.

49. I accept all three of the submissions and again believe that there are some additional matters that might have been relied upon under this heading. Although it is true that some elements of these matters were mentioned in both submissions, I am constrained to find in accordance with authority that the context and form in which these matters were adverted suggests that any consideration actually given was not real and substantive. I refer in particular, the observations of Mr. Justice Toohey in Turner v. The Minister of Immigration & Ethnic Affairs (1981) 35 ALR 388 at 392, of Mr. Justice Wilcox in Singh v. The Minister of Minister of Immigration & Ethnic Affairs (4 December 1985, unreported) at page 13, and of Mr. Justice Mason in Peko Wallsend (supra) at 310.

Discretion Without Regard to Merits

50. It is not clear to me how the Applicant puts any claim under this provision separate and apart to the other matters relied upon. For myself, I have not been able to identify any rule or policy which guided the delegate irrespective of the merits of the case upon which reliance could be placed. I therefore reject this attack on the decision to deport.

Unreasonable Exercise Of Power

51. Again, I reject the Applicant's claim under this heading. It seems to me that on the basis of what the delegate was told and of the filtering out of matters that he should have had drawn to his attention, the power that was exercised was not so unreasonable that no reasonable person could have acted as he did. The fault in the decisions made on 7 January 1987 lay under different categories, as has been previously pointed out.

Discretion

52. Having found therefore that ample grounds exist for granting relief of the kind sought and that the breaches of law which have taken place are real and substantial, it seems to me that the onus which lies on the Applicant to discharge the onus of proving that the Court's discretion should be exercised in favour of intervention, does not present particular difficulties for the Applicant. The Applicant relies upon a number of matters in his efforts to persuade me to exercise this discretion in his favour, the principal items of which are:

(a) there has been a substantial injustice done to him;

(b) he himself has been guilty of no unreasonable delay;

(c) there is no alternative remedy available;

(d) to exercise the discretion will not result in a futile

intervention;

(e) the Applicant's position vis-a-vis Ms Tatum was unequal and

inferior;

(f) the work which he performed between 1982 and 1987 in this

country in contravention of the Migration Act and his
undertakings at the time of his arrival are counterbalanced by
the fact that he has assisted to maintain both his mother, Ms
Kennedy and himself.

53. On the other hand, the respondent points to:

(i) the undertaking that he gave prior to his admission
to Australia not to work;

(ii)his continuing awareness that he was breaching his obligations
in this regard;

(iii)the continuation of his offences against the Migration Act in
relation in particular to the undertaking of employment right up
to the end of 1986;

(iv)the statements made by both Ms Kennedy and Mrs. McFarland that
if the Applicant was requred to leave Australia they would go
with him;

(v) that he will be able to apply under either a sponsorship scheme
or as the husband of an Australian citizen to be permitted to
return to Australia;

(vi)that he has been less than frank and open in his dealings with
the Department in the knowledge that his relationship with the
Department was important to his future.

54. In this last regard the respondent's counsel pointed to the Applicant's use of what counsel described "the old ploys" of changing solicitors and changing addresses. I rather gather from this submission that what was being suggested was that the Applicant had changed solicitors and changed addresses for the express and probably exclusive purpose of putting the Department off his trail.

55. I am satisfied that the Applicant is entitled to intervention in the exercise of the discretion arising under the legislation. I have ascertained no evidence and no sense of implication suggestive that the Applicant was attempting to evade the Department's clutches by sinister and secretive geographical shifts around the Sydney metropolitan area. Indeed, it was not suggested to the Applicant in cross-examination that such changing of legal advisers or places of residence as he had undertaken over the five years since he arrived here were designed to achieve this end. If that was their intention, they were pathetic efforts. The simple fact is that the Applicant was not dealt with by the respondent's delegate in accordance with law in the respects to which I earlier referred, and it seems to me clear that he is entitled to orders accordingly. I agree with respect with Mr. Justice Sheppard that if he had been dealt with adequately by the Department in 1983 or the following year, he would long since have had his problems resolved. Whilst the respondent is certainly entitled to ensure that "queue jumping" is not allowed to occur without legal justification, the fact that this man is the son of an Australian citizen and is about to become the husband of an Australian citizen removes much of the opprobrium that would normally attach to applications of this kind. I think that he is entitled to the orders which he seeks.

Orders

56. I therefore make the following orders;

1. that the deportation and other orders and decisions made against

the Applicant on 7 January 1987 be quashed, other than the
decision to revoke the orders and decisions of 19 December 1986;

2. that the matters be referred to the respondent Minister for

further consideration of the orders and decisions made on 7
January 1987, in accordance with the Reasons for Judgment
herein.

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