Re Jens Ingo Lutz Schlieske v the Honourable Michael Jerome Young Minister of Immigration and Ethnic Affairs; the Honourable Lionel Frost Bowen Attorney-General of Australia; Commissioner of the Australian Federal Police; Director of Public P [1987] FCA 489 (23 December 1987)

FEDERAL COURT OF AUSTRALIA

Re: JENS INGO LUTZ SCHLIESKE
And: THE HONOURABLE MICHAEL JEROME YOUNG MINISTER OF STATE FOR
IMMIGRATION AND ETHNIC AFFAIRS; THE HONOURABLE LIONEL FROST
BOWEN ATTORNEY-GENERAL OF AUSTRALIA; COMMISSIONER OF THE
AUSTRALIAN FEDERAL POLICE; DIRECTOR OF PUBLIC PROSECUTIONS;
COMMONWEALTH OF AUSTRALIA and ROSS WILLIAM ROBILLIARD
Nos. G324 and G361 of 1987
Immigration - Estoppel

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Immigration - "sham" extradition - whether abuse of deportation power.

Estoppel - whether interlocutory, as distinct from final, judgment can constitute an estoppel by record.

Singh v. Mahoney, unreported, 16 May 1986, per Everett J. - not followed.

HEARING

SYDNEY
23:12:1987

Counsel and Solicitors T.F. Robertson instructed
for the Applicant: by John Bettens & Co.

Counsel and Solicitors A. Robertson instructed

for Respondents by Australian Government

Solicitor

Counsel and Solicitors T.F. Robertson instructed

for the Applicant: by John Bettens & Co.

Counsel and Solicitors A. Robertson instructed by

for Respondent: Australian Government

Solicitor

ORDER

G.324 of 1987
1. Application dismissed.
2. Make no order as to costs of the application.

G.361 of 1987

1. The respondent be restrained from requiring Lufthansa

German Airlines to receive the applicant on board any of its aircraft.

2. Make no order as to the costs of the application.

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

DECISION

Mr. Schlieske, the applicant, seeks to restrain the execution of an order for his deportation to the Federal Republic of Germany. The applicant's case is that the attempt to deport him is, in truth, a "disguised" extradition and, as such, is bad as an abuse of the Commonwealth's deportation power (see Barton v. The Commonwealth [1974] HCA 20; (1974) 131 CLR 477 per Barwick C.J. at pp 483-5; per Mason J. at pp 503-4; R. v Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243 per Lord Denning M.R. at p 302; and see the discussion by I.A Shearer in International Law in Australia, Ryan (Ed.), 2nd ed. at pp 187-9).

2. The applicant says that he is willing to leave this country of his own accord. He has been held in custody since August 1986. He claims that the Australian immigration authorities propose to convey him to an aircraft owned by Lufthansa, a German airline, into the custody of officers of the German police force to be conveyed to Germany.

3. The matter has a long and complicated history. The applicant is a German citizen and a prohibited non-citizen for the purposes of the Migration Act 1958. On 6 February 1985, a warrant for the arrest of the applicant was issued by a German court. On 12 August 1986, the applicant was arrested and taken into custody by officers of the Australian Federal Police pursuant to a warrant issued on 28 July 1986 under the Extradition (Foreign States) Act 1966 ("the Extradition Act"). On 26 September 1986, a magistrate ordered that the applicant be released from custody. On the same day, the applicant was arrested and detained in custody pursuant to s.38 of the Migration Act. On 30 September 1986, the Federal Republic of Germany applied to this Court under s.17A of the Extradition Act for review of the magistrate's decision. On 3 October 1986, Sheppard J., pursuant to the power conferred by s.17A(4) of that Act, ordered that the applicant be kept in custody until further order. On the same day, the first respondent, the Minister for Immigration and Ethnic Affairs, by his delegate, Mr. J.R. Tuchin, ordered that the applicant be deported from Australia. On 24 October 1986, Sweeney J. ordered that the magistrate's decision be quashed and ordered the committal to prison of the applicant to await the warrant of the Attorney-General for his surrender to the Federal Republic of Germany. The applicant appealed against this decision and on 3 March 1987, a Full Court allowed the appeal, ordered that the Republic's application for review be dismissed and rescinded the order that the applicant be kept in custody (see (1987) 71 ALR 215). On the same day, the applicant was arrested pursuant to a warrant issued under the Extradition Act. On 28 May 1987, a magistrate ordered that the applicant be committed to prison to await the warrant of the Attorney-General for his surrender to the Federal Republic of Germany. On 3 July 1987, Burchett J. held that the material presented to the magistrate did not entitle him to make a valid order of committal and ordered that the applicant be released. On 9 July 1987, a stay of the order made by Burchett J. was removed by consent.

4. On the same day, a written direction expressed to be pursuant to s.39 of the Migration Act was issued to the Superintendent of the Metropolitan Remand Centre at Malabar, New South Wales. This directed that the applicant be kept in custody at that institution pending deportation. On 9 July, the applicant instituted proceedings in the Court (No. G311 of 1987) against the Minister, Mr. Tuchin and Mr. Robilliard, another officer of the Department of Immigration and Ethnic Affairs, seeking judicial review of the decisions that the applicant be held in custody and that he be deported. The applicant claimed, inter alia, that the deportation order was a "disguised" extradition. Interim relief was sought. On 14 July, Gummow J. dismissed the application for interlocutory relief on the ground that there was no serious question to be tried. On 17 July, Gummow J. dismissed the application in matter No. G311 of 1987 without opposition. At the same time, his Honour gave the applicant leave to file in Court the application in the first of the present matters (No. G324 of 1987) and, without opposition, ordered that the Minister be restrained from executing the deportation order dated 3 October 1986 up to and including 12 August. Gummow J. fixed 11 and 12 August for the final hearing of the matter. On 3 August the applicant commenced proceedings No. G361 of 1987 seeking judicial review of Mr. Robilliard's decision under s.22(1) of the Migration Act to make a requirement to Lufthansa German Airlines to receive the applicant on board an aircraft for conveyance to Frankfurt. This application was returnable on 11 August. On that day, I commenced hearing both matters. The hearing continued on the following day.

5. During the course of addresses, counsel for the applicant sought leave to amend by adding the Commonwealth as a party. The respondents opposed the amendment but, for reasons I gave on 3 September, I granted leave to the applicant to amend generally and also gave leave to the respondents to re-open their case. I stood the further hearing over to a date to be fixed. On 14 October 1987, the parties agreed on a fresh timetable. A direction was then given, by consent, that the applicant file an amended statement of claim by 28 October 1987. In fact, an amended statement of claim was not filed until 17 December, although a draft document in substantially the same terms had been given to the respondents' solicitors some weeks earlier. Because of the delay, the respondents opposed the amendment. By way of explanation for the delay it is said on behalf of the applicant, and accepted by the respondents, that the applicant changed his solicitors and his counsel was ill for some three weeks. However much the delay is to be regretted (and it will be remembered that the final hearing of the matter was expedited in July) the respondents cannot point to any specific prejudice if the amendments were to be allowed at this late stage. The respondents' solicitors have requested, and been furnished with, further and better particulars of the amendments. Counsel for the respondents says that, if the amendments were to be allowed, he would not seek to re-open his case. Except in respect of costs, the respondents cannot point to any specific prejudice if the amendments were to be allowed. On the other hand, if the amendments were to be refused, the applicant would be effectively deprived of the opportunity to present the case he now seeks to advance. The delay in bringing the amendments forward must be seen against the speed with which the litigation, given its complexity, was brought on to a final hearing. I allow the amendments but order that the applicant pay the costs of and occasioned by the amendments on a solicitor and client basis. I dispense with service of the amended statement of claim and I dispense with any further pleadings.

6. The foregoing is an outline of the history of the matter. It is necessary now to mention the details. The applicant first entered Australia on 26 June 1985; for the purpose of securing entry, he produced an Italian passport issued under another name and endorsed with an Australian visa. He was granted a temporary entry permit which was valid until 24 August 1985; he was subsequently granted two further temporary entry permits. The second of these was for a period to expire on 26 December 1985. The applicant departed Australia under the name of the person identified in the Italian passport. He did so on 25 December 1985. The applicant returned to Australia on 29 June 1986 and it is the circumstances of this entry into Australia which are recited in the terms of the deportation order made on 3 October 1986. On this occasion, the applicant produced a Swiss passport issued in the name of another person and again endorsed with an Australian visa. The applicant was granted a temporary entry permit. This entry permit was for a stay of six months. By the operation of s.16(1)(b) of the Migration Act, the applicant was deemed to be a prohibited non-citizen in that for the purpose of entering into Australia he had produced to an officer of the Department a passport that was not issued to him; by s.18 of that Act, the Minister may order the deportation of a person who is a prohibited non-citizen.

7. On 12 August 1986 the applicant was arrested by officers of the Australian Federal Police in Sydney on the extradition warrant. He remained in custody until his release at St. James Local Court on 26 September 1986, when it was found that the evidence against him did not comply with the requirements of the Extradition Act. The applicant was then arrested pursuant to the power contained in s.38 of the Migration Act following his release from custody in the extradition matter. By s.38(1) of the Migration Act, an officer may, without warrant, arrest a person whom he reasonably supposes to be a prohibited non-citizen.

8. On 29 September 1986, the Ambassador of the Federal Republic of Germany spoke to Mr. H.F. Woltring, First Assistant Secretary, Criminal Law and Security Division, Attorney-General's Department, about the extradition proceedings. The respondents have objected to this evidence and other evidence of communications by or to officers of the Attorney-General's Department as hearsay and as irrelevant. In my opinion, the material is relevant in adjectival terms at least, to the case sought to be made by the applicant, that is to say, a case of "disguised extradition" on the whole of the facts of the case. The material is not hearsay for present purposes. It is not sought to use it as evidence of the truth of its contents: its relevance is the fact that a statement in the terms stated was made, not the truth or otherwise of the underlying facts. It was also submitted on behalf of the respondents that communications originating from the Attorney-General's Department were not admissible as against the Department of Immigration and Ethnic Affairs. But these Departments do not have any separate legal personality. The Departments of State are established pursuant to s.64 of the Constitution; as s.64 provides, they are administered by officers appointed for that purpose. But the Departments do not have any separate corporate existence; their function is to exercise the executive power of the Commonwealth. In my opinion, it is open to the applicant to seek to make a case of "disguised" extradition by reference to communications made by branches of Government other than statements made by officers of the Department of Immigration and Ethnic Affairs. It follows, in my view, that the material is admissible.

9. According to Mr. Woltring's file note dated 29 September 1986, the Ambassador was informed that it was proposed to appeal and to amend the regulations if the appeal failed. The note continues:

"I explained that the chances of success of the
appeal was only 50/50 but that this was necessary
in order to maintain Schlieske in extradition as
opposed to immigration custody. Immigration
custody could lead to deportation with Australia
having no say as to the country in which Schlieske
might disembark..."

10. According to a memorandum to Mr. Robilliard dated l October, prepared by Mr. R. Wilson, Mr. Robilliard's superior officer, Ms. Deborah Henville, an officer in the office of the Director of Public Prosecutions, informed Mr. Wilson on l October that she had obtained a warrant for the arrest of the applicant under the Extradition Act; Mr. Wilson then informed her that he agreed to the applicant's release "from Imm. custody" as from 2 October 1986. The note continues:

"I have told Ms Henville that we will stand aside
during extradition matter and if subject is
released on bail so be it - i.e. we would not use
Sec 38 to service extradition matters. However if
matter resolved and subject released we would again
take up deportation aspect.
AFP will contact re mechanics (DO submission to go
ahead in any event)."

("DO" is a reference to the deportation order which, it will be recalled, bears date 3 October).

11. According to a file note prepared by Ms. Dianne Stafford, an officer of the Attorney-General's Department, Mr. Kuster, an official at the German Embassy, spoke to her as follows:

"Embassy has telex from his ministry of justice
asking whether we could deport. They would collect
him etc if we ordered deportation.
I advised our courts do not approve of what we term
"disguised extradition" which deprives fugitives of
their rights under extradition law. We cannot
openly deport in FRG police custody. He to inform
his authorities. I told him of progress to date."

12. Again the respondents object to this, and other similar material to which I will refer. The objection is put on the grounds of hearsay and irrelevancy already mentioned. It may be that the statements in the documents should be admitted, even if hearsay, by virtue of the "business records" provisions of Part IIIA of the Evidence Act 1905. But it is not necessary to pursue this. For reasons previously given, this and the further material should be admitted. I note that the respondents have indicated that, in the event that this and the other material objected to be admitted, they would not wish to call any further evidence.

On 2 October 1986, Ms. Henville informed Mr. B.

Bannerman, an officer of the Attorney-General's Department of developments in the extradition proceedings. Mr. Bannerman's note added:

'Fugitive currently at Long Bay and will be released
from Immigration detention and re-arrested under an
extradition warrant at approximately 12 noon and
the matter is listed before court at 2.15.
She is concerned as to the possibility of bail
because he has already been released by a
Magistrate last Friday on the extradition matter
and is only held under Immigration warrant.
However Immigration cannot re-arrest him if he is
granted bail and we cannot be involved in
deportation which is a "disguised extradition".'

On 3 October, Ms. Henville again spoke with Mr.

Bannerman. His note of the conversation was as follows:

'Immigration has Deportation Order.
I indicated that could not be executed while the
appeal was on foot and our instructions are that
the appeal should proceed.
She will reinforce this with Immigration ie. if he
is granted bail today pending the hearing of the
appeal the D.O. cannot be meanwhile executed.
This would be "disguised extradition".'

By s.38(7) of the Migration Act, an authorised

officer may at any time order the release of a person who is in custody under that section. On 3 October, acting pursuant to this provision, Mr. Robilliard ordered the release of the applicant.

On 10 October, Mr. Wilson recorded the following

conversation with Mr. Woltring concerning the applicant:

"Spoke to H. Waltring (sic) AG's CBA re above he
said that the W. Germans were concerned that if
subject were deported rather than extradited he may
abscond en route.
Informed Mr. Waltring (sic) of our position i.e.
would not use Mig. Act to facilitate extradition.
He understood and appreciated Dept's position."

The file of the office of the Director of Public

Prosecutions records the following:

"10/10 Dick Wilson spoke to Waltring (sic) -
brick wall - bending over backwards to help
Germans - extrad. safer than deportation"

According to Mr. Wilson's file note dated 12

February 1987:

"...Paul McMahon D.P.P. phoned to advise that an
appeal had been lodged against his (Schlieske)
extradition and that AGS proposed, in the event
that the appeal was successful to utilize the
provisions of the Migration Act to hold Mr.
Schlieske pending an AGS appeal.

Informed McMahon that the M.A. could not be used
for purposes other than deportation, that if the
extradition matter failed and no further
extradition action was taken the Dept would then
look at the question of deporation but the M.A.
could not be used to hold a person for purposes
other than deportation."

In a memorandum to Mr. Robilliard concerning the

applicant dated 3 March, Mr. Wilson wrote:

"Jens Schlieske

2.3.87 Paul McMahon DPP, phoned to advise that A/n
(abovenamed) was to (appear) at the Federal Court
3.3.87 re his appeal against extradition - Mr.
McMahon was not confident that the crown case would
succeed. He sought in essence this depts
endorsement to utilize the custody provisions of
the M.A. to hold subject pending an appeal against
an adverse decision. I informed Mr. McMahon that
the proposal was unacceptable to this Dept.

It was suggested to him as it had been suggested on
previous occasions that the simplest most efficient
method would be to utilize the DO. That proposal
was not acceptable to AGS who felt obliged to
pursue prosecution to satisfy the extradition
arrangement with the Germans.

Mr. McMahon also advised of his intention if
extradition failed to pursue charges under the
Passports Act and sought again this departments
endorsement to utilize the custody provisions of
the M.A. to move subject from the Federal Court to
the lower court to lay charges. Similarly in the
event (likely) that he is granted bail they sought
to utilize the M.A. to hold in custody pending a
hearing.

Informed Mr. McMahon that all those proposals re
custody were unacceptable to this Department.

Several phone calls followed along the same lines
in the last of which Mr. McMahon advised that in
the event that the extradition matter failed no
appeal would be lodged and it was not intended to
proceed with the passport matter - however in the
event that there was a change of heart with regard
to the passport matter a warrant would be sought
but without enthusiasm - one can only wonder at the
logic in that exercise.

I have agreed in the event that the extradition
fails to take subject into 39 (i.e. s.39 of the
Migration Act which authorises the arrest of a
deportee) custody, either at the court if he is
present or by serving a warrant on Corrective
Services and having an officer serve the DO and
i/ving (interviewing) subject. I would then in the
absence of any circumstance militating against the
move to effect early deportation."

On 3 March, Mr. Wilson directed Mr. Robilliard to

serve a "warrant" under s.39 of the Migration Act. On that date, Mr. Robilliard served a direction under s.39 on the Chairman of the New South Wales Department of Corrective Services, directing that the applicant "be kept in your custody pending deportation until he is placed on board a vessel for deportation." On the same day, Mr. McMahon informed Mr. Wilson that the appeal had been allowed but that he had obtained a further extradition warrant. Mr. McMahon asked for the withdrawal of the custody order served that day. Mr. Wilson directed Mr. Robilliard to do so and on that day Mr. Robilliard served a release order on the Chairman, Department of Corrective Services.

As has been said, on 3 July, Burchett J. ordered that

the applicant be released from custody. On that date, Mr. C. Levingstone, an officer of the Department of Immigration and Ethnic Affairs, noted the stay of the order made by Burchett J.; he also noted that the deportation order had not been served. Mr. Levingstone recommended service "ASAP". Below this note is a reference to "Herman Waltering (sic) - A.G.'s - CBA" - apparently a reference to Mr. Woltring but it does not appear who wrote this. There are further references, on this note, to Detective/Sergeant D. Clarke (an officer of the Australian Federal Police) and to Mr. Kuster. It is not clear who added these references but they may have been written by Mr. G. Clarke, an officer of the Department of Immigration and Ethnic Affairs. I shall return to this later.

On 5 July, Detective Sergeant Clarke sent a vocadex

message to other branches of the Australian Federal Police reporting on the orders made by Burchett J. and adding the following:

"A deportation order under section 39 of the
Migration Act is in existence and the Dept of
Immigration is prepared to immediately deport
Schlieske to West Germany under escort should the
F.R.G. request this action."

It appears that this vocadex was also sent to the

Attorney-General's Department. On a copy of the vocadex the following note appears:

"From Denis Foot A.G. Dept. Info. this VDU not to be
forwarded to F.R.G. A.G. Dept aware of
deportation order and appeal has been lodged
against decision."

It appears that this notation was made by Mr. K. Inwood of Interpol.

(In fact, no appeal was lodged and the stay was

removed on 8 July.)

On 5 July, Mr. Bannerman recorded the following

discussion with Mr. Foot:

"8.15p.m. Denis Foot phoned me at home Sunday 5
July (8.15) re Schlieske.
- He had just received a call from Kev. Inwood of
Interpol
- Interpol has received a message from AFP
Eastern Region which they request be passed to
Interpol Weisbaden
- The message says that a deportation order
against Schlieske is current and asks whether
FRG wishes us to deport Schlieske.
- I asked Denis to phone Inwood back immediately
and advise that the message should not be sent.

- Any deportation of Schlieske straight after the
Federal Court on 3 July had rejected the second
extradition request could be regarded as being
disguised extradition ie. while there was an
appeal on foot - I would be discussing with Mr.
Woltring and Dr Chaikin first thing tomorrow
morning what course should now be adopted.

- I noted that although Schlieske was back in
custody since the Federal Court had granted a
stay (because it was notified an appeal would
be lodged), the grounds for appeal do not look
good from my reading of Burchett J's decision
as handed down on 3 July.
- However McMahon had told me on 3 July that FRG
police would like to lay further charges.
- Accordingly perhaps the desirable course is for
a new extradition request to be made with the
new charges and to withdraw the appeal.
Denis will phone Inwood at Interpol and ask that
the AFP message to FRG not be sent."

The events of 6 and 7 July are controversial. It is

convenient to commence with three memoranda written by Mr. G. Clarke concerning the applicant as follows:

"Spoke with Mr. Bartholmei, Consul at the Consulate
General for the Federal Republic of Germany.
He will check his file on Schlieske and advise what
will be required to issue T/Doc (travel documents)
to facilitate his return to Germany.
G.S. Clarke C & C D
6 July 1987
Spoke with the German Embassy Canberra. Mr. Kuster
will ring back am 7/7/87 re above A/N (abovenamed)
G.S. Clarke C & C D
6/7/87
(1) Mr. Kuster advised that they would instruct
German Consul in Sydney to issue travel doc on
arrangements of travel (2) Should travel on LH
(Lufthansa) service to Frankfurt as German Federal
Police officers would be on board to take Schlieske
into custody as soon as he boarded aircraft.
G.S. Clarke C & C D
7/7/87"

Mr. G. Clarke was cross-examined as to his reasons

for contacting Mr. Kuster as follows:

""You first called Mr Kuster on 6 July did not
you?---That is correct.
Why did you call him?---I was advised by the consul
in Sydney that I should ring the Embassy in
Canberra to obtain a travel document or see what
steps would be needed to obtain a travel document.

Are you sure of that answer?---Well Mr Bartolomei
who is a new vice-consul with the German Consulate
in Sydney was not readily aware of the case and to
the best of my recollection at the time he said he
will check his files but maybe that I should ring
the embassy direct in Canberra.

You see, before you just gave that answer you
glanced at folio 117 in the department's files did
not you, or your affidavit? Sorry, before you gave
your answer you just glanced at the particular part
of your affidavit did you?---Possibly.
(Folio 117 is the page on which Mr. Clarke's three
memoranda dated 6 and 7 July appear.)
...
Could it have been that someone had suggested to
you that you should speak with Mr. Kuster on or
about 3 July 1987?---No, sir. The first - I can
honestly say that the first time that Mr. Kuster
had been mentioned was in a conversation with Mr.
Bartholomei and the only explanation I can give is
possibly that I had not had the folio of 117 at the
time, and I have just written down Mr. Kuster when
Mr. Bartholomei has told me the gentleman's name
and this is why the little dots are over the u,
because he was emphasizing the German spelling of
Kuster."

(It will be remembered that below Mr. Levingstone's
note dated 3 July, reference appeared to Messrs.
Woltring, D. Clarke and Kuster.)

I am not satisfied that Mr. G. Clarke's recollection

of the circumstances in which the first respondent contacted Mr. Kuster is reliable. I am not prepared to accept his evidence on the point unless corroborated. In particular, I am not satisfied with his attempt to explain the handwriting at the bottom of Mr. Levingston's note. Mr. Clarke gave this evidence in cross-examination about that handwriting:

"Are you able to recognize that handwriting?---No, I
am sorry, it is - - -
Do you see immediately below that the words Mr.
Kuster, underlined?---yes.
Are you able to say whose handwriting is
that?---That is my handwriting.
Do you agree that on or shortly after 3 July 1987
you made that note, Mr. Kuster, on the file?---It
was certainly after the 3rd and possibly I have had
the file open and when I have been speaking I have
written down Mr. Kuster when possibly Mr.
Bartholomei has been spelling out his name before I
transcribed it onto a fresh memorandum.

That is just speculation on your part, is not
it?---That is correct.
In the ordinary course when you make a note which
is intended for the file, you make a discrete note,
do not you, and date it?---That is correct.
So you cannot recall, you cannot tell the court how
those words came to be placed on a page dated 3
July 1987?---Not with any certainty, no."

On 6 July, officers of the Attorney-General's

Department met with Mr. Kuster. This appears from a telex dated 7 July from Mr. Bannerman to Interpol, Canberra, as follows:

"...
2. PLEASE PASS THE FOLLOWING MESSAGE TO
INTERPOL WIESBADEN
QUOTE
WITH REFERENCE TO YOURS OF 7 JULY PLEASE
NOTE THAT AUSTRALIAN LAW DOES NOT ALLOW
AUSTRALIAN AFP OFFICERS OR ANY OTHER LAW
ENFORCEMENT OFFICERS TO ESCORT PERSONS
BEING DEPORTED FROM AUSTRALIA.

ATTORNEY-GENERAL'S DEPARTMENT, CANBERRA,
HAD FURTHER DISCUSSIONS WITH MR D. KUSTER
OF FRG EMBASSY, CANBERRA, APPROX. 1600
HOURS 6 JULY IN WHICH OUR CONSIDERED VIEW
WAS CONVEYED TO HIM NAMELY THAT PREFERRED
COURSE WOULD BE FOR FRG AUTHORITIES TO
SUBMIT THIRD EXTRADITION REQUEST
PREFERABLY WITH ADDITIONAL CHARGES. IT
IS STRESSED THAT IF ADDITIONAL CHARGES
ARE POSSIBLE THESE SHOULD BE INCLUDED
WITH THE FRESH REQUEST AND IT IS ALSO
STRESSED THAT THE FRESH REQUEST SHOULD BE
RECEIVED BY ATTORNEY-GENERAL'S
DEPARTMENT, CANBERRA, URGENTLY."

On 7 July, Mr. J. Mahoney, Assistant Secretary,

Compliance Branch of the Department of Immigration and Ethnic Affairs, made the following note in the applicant's file:

"I spoke to Mr. H Woltring on the SCHLIESKE matter.
He advised that he expected that the extradition
proceedings in relation to Schlieske would be
tossed out tomorrow. I said that under the
circumstances DIEA would then take action to
enforce the existing deportation order. Under
normal circumstances, I would expect that the order
would be executed within about 7 days ie. the time
required to arrange for a booking.

Mr. Woltring said that he expected that the West
German authorities might approach us again to
reinstate the proceedings. I said that I accepted
that if this was to occur that the extradition
proceedings would prevail over the Migration Act
but that we would not delay deportation simply
because of some possibility that extradition might
be sought.

I subsequently spoke to Mr Wilson in the Sydney
Regional Office and advised him of the above. He
will arrange with the local office of AGs for a
DIEA officer to be present in the Court and for
Schlieske to be taken into custody if he was
released from the extradition custody.

He said that the solicitor for Schlieske had
already been in contact with them and had advised
that there was nothing that Schlieske wanted
considered further in relation to the deportation
order. Mr. Wilson noted that although the order
was signed on 3 October, it had not been served on
Schlieske. It would appear that Schlieske would
still be able to challenge this in the Federal
Court as the 28 day period starts from the time
when a decision is made or from when a Statement of
Reasons is provided if requested."

(Australian Federal Police):

"YOUR REFERENCE NUMBER IP/D/66/86/31 CONCERNING
INTERNATIONAL SEARCH FOR THE GERMAN NATIONAL
SCHLIESKE FNS JENS INGO, BORN 28 JUNE 1960
FRANKFURT/MAIN, ON SUSPICION OF INTERNATIONALLY
ORGANIZED ILLEGAL DRUG TRAFFICKING. ACCORDING TO
THE INFORMATION CURRENTLY AVAILABLE AT THIS END,
YOU PLAN TO DEPORT SCHLIESKE FROM AUSTRALIA. IN
THIS CASE, IT IS SUGGESTED THAT SCHLIESKE IS
ESCORTED BY THE TWO CASE OFFICERS OF THE SYDNEY
FEDERAL POLICE, DETECTIVE SERGEANT DAVID CLARKE AND
DETECTIVE SERGEANT IAN DICKENSON. THE FOLLOWING
ITINERARY IS PROPOSED:
DEPARTURE SYDNEY ON THURSDAY, 9 JULY 1987, AT 13:00
HOURS ON FLIGHT QUANTAS QF 5, ARRIVAL MELBOURNE AT
14:20 HOURS. DEPARTURE FROM MELBOURNE TO SINGAPORE
ON 15:25 HOURS, ARRIVAL SINGAPORE AT 21:05 HOURS.
DEPARTURE FROM SINGAPORE TO BANGKOK AT 22:30 HOURS,
ARRIVAL BANGKOK AT 23:40 HOURS. DEPARTURE FROM
BANGKOK TO FRANKFURT AT 01:00 HOURS ON 10 JULY
1987, ARRIVAL FRANKFURT AT 08:00 HOURS. THE COSTS
FOR SCHLIESKE AND THE TWO OFFICERS WILL BE MET BY
THE GERMAN AUTHORITIES.
PLEASE PASS ON THIS MESSAGE AS SOON AS POSSIBLE TO
THE SYDNEY FEDERAL POLICE.
THANKS FOR YOUR COOPERATION."

By telex dated 7 July, this message was relayed by

Interpol Canberra to other branches of the Australian Federal Police and to the Attorney-General's Department, for the attention of Mr. Foot. On the telex received by that Department, there appears the following handwritten note:

"Advise Kuster FRG Embassy of above and of our
response."

These matters were the subject of Mr. Bannerman's

telex to Interpol Canberra dated 7 July already mentioned. Mr. Bannerman's advice was then telexed to Wiesbaden by Interpol Canberra on the same day.

As has been seen, on that day (7 July) Mr. Kuster

spoke to Mr. G. Clarke and discussed travel documents, the Lufthansa service to Frankfurt and German Federal Police officers.

Mr. G. Clarke was cross-examined on his note as

follows:

"Did you believe that his suggestion that as soon as
Schlieske got on this flight to Frankfurt he was to
be taken into the custody or would be taken into
the custody of two German police officers as
improper?---I did not make any - or did not have
any thoughts about it at the time. My job was just
to facilitate a deportation and I was only
preparing travel, and I did not know the full
background. I did not take any - I did not have
any thoughts as to whether it was proper or
improper.

You made no suggestion at all in reaction to Mr
Kuster's suggestion - to Mr Kuster at the time you
spoke?---No, no; I did not discuss the rights or
wrongs with Mr Kuster.
But you may have referred this conversation or
recited the conversation to your superiors?---That
is correct. It would be quite probable but I
cannot fully - - -
Quite probable?---It would probably would have been
recited but I cannot remember whether or how it was
worded.
It would have been recited, would it, to Mr.
Robilliard?---It would have been as my superior
officer.
You do not recall Mr Robilliard reacting in any
way?---I cannot recall now, I am sorry."

Mr. Robilliard gave this evidence:

"And do you say that in your view no reasonable
person reading that (i.e. the page upon which Mr.
Clarke's three memoranda dated 6 and 7 July
appear) could have thought it relevant to the issue
before Mr Justice Gummow of disguised
extradition?---There is no indication to me there
that Mr Clarke accepted any of what he said. He
has just recorded what was said to him."
...
Why then did you not include the note made by Mr
Clarke on 6 and 7 July 1987, concerning his
conversation with Mr Kuster from the German
embassy?---Because what that conversation does is
indicate the thinking of Mr Kuster's, not of
anybody - not a departmental officer. I did not
feel obliged to explain Mr Kuster's thinking; only
departmental officers.

I see. Did not the fact that no affirmation of Mr
Kuster proposal having appeared on that file note
established that the department had not in fact
agreed to that proposal and that it was therefore
relevant for that purpose?---No, there is no
mention of agreement or disagreement. There was
just no comment on it. Mr Clarke has recorded it
as a statement of what Mr Kuster has said but to me
it does not give any insight into the thinking of
departmental officers.

So you in fact made a conscious decision not to
include that document amongst those annexed to your
affidavit of 14 July 1987?---Well, I did not
consciously ponder that at any great length. I
went through the file, selected those documents
that I thought were relevant to establishing the
thinking of people within the department and to me
that did not appear to be such a document.

It certainly establishes the knowledge of the
department of proposals made by the West German
government, does not it?---Yes.
But you did not regard that as relevant to the
proceedings before Mr Justice Gummow, is that
correct?---If we were not intending to act upon it,
no."

On 7 July, Mr. Robilliard wrote a memorandum to Mr.

Wilson with reference to the deportation order dated 3 October 1986. Mr. Robilliard pointed out that because of the extradition proceedings:

"we have been unable to invoke the DO as required by
(s.) 2O of the Migration Act.
In the event that the proposed extradition of (the
applicant) is unsuccessful, this Dept. has a lawful
obligation to effect the D.O."

Mr. Robilliard said that, for this purpose, an

officer of the Department called on the applicant at Long Bay Prison on 6 July. He concluded:

"If, as a result of a Federal Court ruling,
extradition does not proceed, it is recommended
that the existing DO be invoked as soon as
possible."

Mr. Wilson noted his agreement with the

recommendation.

On 8 July, Mr. Bannerman sent a telex to Interpol

Canberra with a request that it be transmitted to Interpol Wiesbaden. The telex sought advice from the German authorities whether they wished to lodge a third request for the extradition of the applicant. The remaining options were said to be to execute the deportation order or to lodge a third request. The telex continued:

"...although (the applicant) can be held in
immigration custody pursuant to deportation order,
he is able to challenge the deportation order and
would have good chances of success as being a form
of disguised extradition..."

On the same day (8 July), Mr. Bannerman made the

following file note:

"McMahon advises that Schlieske's solicitor is
having the matter listed tomorrow for appeal to be
lodged.
- We will speak with DIEA to see if they will
take him into Immigration custody pending
receipt of further extradition request.
- Spoke with Dick Wilson of DIEA - not their
policy to do so.
- Mr Woltring then spoke with Mr John Mahoney of
DIEA who agrees will take in immigration
custody on basis that no extradition
proceedings on foot once appeal withdrawn.

- If we then receive fresh request from FRG with
fresh charges then Extradition Act will
override Migration Act and can be transferred
to extradition custody (upon appropriate
procedures being followed) - as long as such
request received within the usual time it takes
for DIEA to execute a Deportation Order which
he says is approximately 7 days.

- Mahoney is confident Schlieske would not
succeed on ADJR challenge because of Mahoney v
Dillon Federal Court decision of approximately
six months ago which said in part that decision
to execute deportation order is not a
reviewable decision under ADJR. * - in any
event the Order dates from 3/l0/86 and
therefore Schlieske would be out of time to
challenge - but could get special leave.

* (re s.20 Migration Act order)."

On 8 July, Mr. Wilson prepared the following file

note:

"Bruce Bannerman AGS CBA (719210) phoned am 8/7/87
to ascertain this departments position should AG'S
appeal against the decision in the extradition of
A/ned ( abovenamed, i.e. Schlieske) either fail or
be withdrawn.

Informed Bannerman that our position had not
altered i.e. if AGS matters were finalised and this
meant no outstanding matters were held we would
move to give effect to the DO. Bannerman said that
in all possibility they would withdraw this appeal
tomorrow and have nothing further to offer but were
hopeful of getting further info from Germany which
would enable further charges to be laid.

Informed Bannerman that when this department became
involved it would be to effect deportation not
facilitate extradition and the Migration Act could
not be used for purposes other than those
concerning migration matters.

Herman Waltring AGS C.O. 719699 was called in to
participate in the discussion he past (sic) much
the same matters as Bannerman and cast doubt as to
whether the DO would if implemented withstand
challenge and cited a High Court case where
deportation was considered to be a vehicle for
extradition.

I told Waltring that if they were no longer
involved I was prepared to go on the D.O. but had
difficulties in that given that they had informed
me that they still wished to pursue extradition.
Informed Waltring that I would speak to John Lynch
Legal and get back.

John Lynch contacted he will speak to Waltring and
advise."

On 8 July, Mr. Wilson wrote this note to Mr.

Robilliard:

"Ross - at this stage we can only act on the basis
that no further extradition action is in train and
move to DO

In the absence of advice to the contrary from Legal
pls have DO served and subject arrested under
Sec.39."

On the same day (8 July), Mr. Wilson wrote again to

Mr.Robilliard referring to Mr. John Mahoney, Mr. Wilson's superior officer:

"John Mahoney CO has conferred with AGS and decided
that we will proceed with deportation order if
extradition fails as is expected.

Ross
l. have DO served and subject arrested under Sec
39 8 July 1987.
2. call upon carriers (DO signed under Sec 16) to
remove."

Mr. Bannerman made the following note on 8 July:

"1700 hrs - spoke with Paul McMahon - advised that
when the matter is listed tomorrow for appeal to be
lodged and set down he should advise court that
appeal will not be instituted.
- I am to confirm in writing.
- Also, advised McMahon that had spoken with
Mahoney of DIEA and that DIEA will hold in
migration custody for usual period (7 days) but
they understand we could receive a fresh
extradition request within that time and that
EFS (Extradition (Foreign States)) Act would
then override Migration Act.
- He should liaise with Dick Wilson/Robilliard of
DIEA with whom Mahoney will have spoken."

On 9 July, the Australian Federal Police sent the

following telex to Interpol Canberra:

"...FOLLOWING THE DECISION OF THE ATTORNEY GENERAL'S
DEPARTMENT, CANBERRA, THE ABOVE EXTRADITION MATTER
WAS BROUGHT BEFORE JUSTICE GUMMOW ON 09 JULY 1987
AT THE FEDERAL COURT, QUEEN'S SQUARE, SYDNEY AND
THE NOTICE OF APPEAL ON BEHALF OF THE FEDERAL
REPUBLIC OF GERMANY HAS WITHDRAWN BY MR. MCMAHON OF
D.P.P.
SUBSEQUENTLY A STAY OF RELEASE OF THE FUGITIVE
PREVIOUSLY ORDERED BY JUSTICE BURCHETT ON 03 JULY
1987 WAS LIFTED AND SCHLIESKE WAS ORDERED RELEASED
FORTHWITH.
THE DEPARTMENT OF IMMIGRATION, SYDNEY THEN ADVISED
THAT THE ABOVENAMED FUGITIVE WAS TAKEN INTO THEIR
CUSTODY UNDER SECTION 39 OF THE MIGRATION ACT AS A
PROHIBITED NON CITIZEN. A DEPORTATION ORDER HAS
BEEN SIGNED BY THEIR MINISTER AND SCHLIESKE WILL BE
HELD AT THE METROPOLITAN REMAND CENTRE, LONG BAY
PENDING HIS DEPORTATION FROM AUSTRALIA ON A DATE TO
BE DETERMINED.
PLEASE PASS THE ABOVE INFORMATION TO GERMAN
AUTHORITIES."

A copy of this telex was sent to the

Attorney-General's Department.

On 9 July, the deportation order was served on the

applicant at the Metropolitan Remand Centre. A copy of a "custody order" under s.39 was also served.

On the same day, Mr. Wilson made the following file

note:

"Jens Schlieske
1600 hrs 9/7/87
W. O'Brien Sol (solicitor) phoned re A/ned
(abovenamed) to advise that he was at the Federal
Court waiting to see a judge to obtain a stay on
the deportation of Aned (abovenamed). He advised
that he was seeking the review on merits; when
asked to explain he said that the deportation was a
defacto extradition.
He also asked the view of the dept to 1) voluntary
departure and 2) country of destination. With
regard to 2 I told him that the destination
mattered little as long as he would be permitted to
land at the other end and in that regard expected
he may have difficulties obtaining a T/D (travel
document) for travel to other than Germany. With
regard to 1 given the nature of his offences I
would have to put the question of revocation and
vol to the delegate."

Mr. Robilliard was cross-examined as follows as to

his understanding of events at this point:

"And in fact the actual execution of the deportation
order began at the point at which Schlieske ceased
to be bound or in custody pursuant to the
Extradition (Foreign States) Act, did not
it?---Yes, I would say 9 July.
The 9th, yes. So, by 9 July you had taken some
preliminary steps in relation to the deportation
order, formed an intention to deport him to West
Germany and knew that the West German government
proposed or intended to have German police officers
on board whatever flight Mr. Schlieske left Sydney
from?---Yes.
...
...You knew, did you not, that the West German
government proposed to take Schlieske into custody
as soon as the flight left Sydney by police
officers for the purpose of making certain that
Schlieske arrived in West Germany on that
flight?---I did not know that; what they were
intending to do or for what purpose, I did not
know. I had some knowledge that they intended to
have officers there and that is about as far as my
knowledge goes."

Later, Mr. Robilliard agreed in cross-examination

that he turned a blind eye to what the German authorities were proposing to do because "it was not relevant to our purpose."

On 9 July, Interpol Canberra informed the German

authorities by telex that the applicant had been released under the extradition proceedings but that he had been taken into custody by the Department of Immigration pending deportation. A copy of the telex was sent to the Attorney-General's Department.

On 10 July, Mr. Robilliard wrote to Qantas Airways

Limited:

"I attach a Requirement under Section 21(3) of the
Migration Act 1958 for the removal from Australia
of Jens Ingo Lutz Schlieske. The subject entered
Australia on 29 June 1986 from Manila in the
aircraft Qantas flight QF 2O.
On 3 October 1986 a delegate (of) the Minister for
Immigration and Ethnic Affairs signed a deportation
order against Jens Ingo Lutz Schlieske who is
presently in custody at the Metropolitan Remand
Centre, Long Bay Prison Complex.
You are obliged pursuant to sub-section 4 of
Section 21 of the Migration Act 1958 to satisfy
this Requirement within a period of 30 days after
receipt or within such further time as the Minister
may allow. I must add however the Minister has
stated he will not allow any extension of the
thirty day period unless very special circumstances
exist..."

By s.21(3) of the Migration Act, it is provided:

"(3) Subject to sub-section (6) of this section,
where the Minister has ordered the deportation of a
person,...an authorized officer may, by notice in
writing, require the...owner...of the vessel in
which the deportee arrived in Australia to provide,
without charge to the Commonwealth, a passage for
the deportee to the place at which he boarded the
vessel when he came to Australia.

By s.21(6):

"(6) Where sub-section (3) applies in relation to a
deportee but the Minister is satisfied that the
deportee will not or may not be permitted to
re-enter the place referred to in that sub-section,
the Minister shall exempt the persons on whom a
requirement under that sub-section has been or
could be made from liability under the preceding
provisions of this section in respect of the
deportee if arrangements to the satisfaction of the
Minister are made by all or any of those persons
for payment to the Commonwealth of such sum as the
Minister thinks reasonable in the circumstances in
respect of the cost, or part of the cost, of a
passage for the deportee to some other place
outside Australia."

The document under s.21(3) served on Qantas required

it to provide a passage for the applicant to Manila. On lO July, Qantas issued a ticket to that destination. The ticket, which showed a fare of $722, bears the note "endorsed to LH (Lufthansa)". The endorsement was explained by Mr. G. Clarke in his affidavit as follows:

"6. On 14 July, 1987, I was told by an
officer of Qantas: "Qantas has complied
with the requirements of a direction
under section 21(3) of the Migration Act
and has issued to Mr. Schlieske an open
Sydney/Manila ticket. We have endorsed
that ticket to Lufthansa German Airlines
to allow Mr Schlieske to return to West
Germany" or words to that effect.
Annexed hereto and marked "B" is a copy
of my file note dated 14 July, 1987
recording that conversation...Either
during that conversation or within a few
days prior to it an officer of Qantas had
said to me words to the effect of "We
don't want to carry Mr Schlieske for
security reasons". I did not request
Qantas that it endorse the ticket issued
by it to the applicant across to
Lufthansa.

7. On that same day, I contacted Lufthansa
Reservations and obtained a booking for
the applicant on a one-way economy-class
ticket to Frankfurt, West Germany on
flight LH 791 scheduled to depart Sydney
Kingsford Smith Airport at 12.45pm 18
July, 1987."

Mr. Clarke was cross-examined as to a discussion he

had with a Qantas security officer on about 10 July as follows:

"Can you recall having a discussion on 10 July 1987
with a person from Qantas responsible for security
matters concerning Mr Schlieske's deportation?---I
possibly have had conversations with him - I have
had, but I cannot remember whether it was 10th or
what day it was.

Now, you were aware on 10th were not you that there
had been several unsuccessful attempts to extradite
Mr Schlieske to West Germany?---I was aware that Mr
Schlieske had been - attempted to extradite but I
knew they were unsuccessful but I was - I did not
know anything else about it, I just knew that this
was - he was subject to an extradition which did
not - - -

And you knew on 10 July that the West German
government proposed to have two police officers on
board a flight taking Mr Schlieske from Sydney to
West Germany?---Mr Kuster indicated that there
would be or may be, as the file note says, but,
yes, I did know that they were planning on this but
I - - -

And you knew that they were willing to arrange a
flight from Sydney on Lufthansa German Airlines to
West Germany for that purpose?---They were willing
to, they were willing to arrange a flight, yes.
And when you had a conversation with a security
officer of Qantas on or about 10 July 1987, you
told that security officer - you gave the security
officer that information, did not you?---We are
obliged to advise the carrier of the background for
the security of the aircraft that they may deem
whatever measures that they wish to take to
maintain security of the aircraft or passengers.

And in order to be helpful to Qantas you advised
them that the West German government would be happy
to take the matter over, so why do not they endorse
their ticket to Lufthansa?---I have no recollection
of requesting Qantas to endorse a ticket to
Lufthansa and I have no recollection of saying that
the West German government would be happy to take
it over.

Did not you tell a security officer of Qantas on or
about 10 July 1987 the contents of what Mr. Kuster
told you concerning the German government's
preparedness to have Schlieske leave Australia on a
Lufthansa flight---I may have."

It would seem likely that Mr. Clarke did discuss with

Qantas at least the possibility that Lufthansa would carry the applicant to Frankfurt.

By letter dated 14 July, Mr. Clarke informed the

German Consul in Sydney of the proposal to deport the applicant to Frankfurt by Lufthansa airlines and requested the issue of a travel document for travel on 18 July.

On 14 July, the application for interim relief was

dismissed by Gummow J. On that day, Mr. Bannerman made the following file note:

"After receiving message from Mr Woltring that
Federal Court today rejected Schlieske application
for stay I phoned -
1. Robilliard of DIEA, Sydney, who confirmed
Schlieske booked on Lufthansa flight
Saturday 18/7 and that Kuster had been
advised.
2. Kuster, FRG Embassy Canberra - he has
advised FRG Police (BKA) and they will
decide if send escort officers and where
to etc."

Mr. Bannerman was not called. Mr. Robilliard said in

cross-examination that he first spoke to Mr. Kuster on 17 July. Indeed Mr. Robilliard could not recall speaking to Mr. Bannerman on 14 July. I find it difficult to accept either claim by Mr. Robilliard. There is no reason to doubt the reliability of Mr. Bannerman's note which, for this purpose, should be admitted as a "business record" under s.7A and s.7B of the Evidence Act 1905 (see s. 7A(1) (see the definition of "business" para.(b); the definition of "document" para.(a); the definitions of "proceeding", "qualified person" and "statement"); s.7A(2); 7A(3). See also s.7B(1) and (2); s.7E; s.7F; s.7G) as evidence of the truth of its contents. I think it is likely that it accurately reflects what transpired and that Mr. Robilliard has forgotten that he had spoken to both Mr. Bannerman and Mr. Kuster on or about 14 July.

On 15 July, Lufthansa issued a first-class ticket in

the name of the applicant from Sydney to Frankfurt. The ticket, which showed a fare of $3,310, was issued at Wiesbaden.

On 16 or 17 July, Lufthansa informed Mr. Clarke that

the Lufthansa ticket was available for collection. When he realised that it was a first-class ticket, Mr. Clarke returned it to Lufthansa.

On 16 July, Mr. Bannerman made the following file

note:

"Kuster, FRG Embassy phones to inform me that FRG
escort officers have left on Lufthansa flight on
16/7 and will arrive 17/7
- names - Trauter and Glomb
- he has also advised DIEA, Sydney."

On 16 July, Mr. Robillard made a note on the file

that Mr. John Stankevicius (of the Department of Immigration, Canberra) telephoned and informed Mr. Robilliard that he wanted overseas ports, Australian Federal Police or Interpol to be given details of the applicant's travel arrangements. On that day, Mr. G. Clarke accordingly sent a telex to Interpol Canberra which in turn transmitted the information to the Attorney-General's Department and the German authorities in Wiesbaden. On 16 July, Interpol Canberra sent a telex to the Department of Immigration for the attention of Mr. Clarke referring to his telex and enquiring whether or not the applicant would be escorted by a Government official for any part of his journey. On the same day, Interpol Wiesbaden sent a telex to Interpol Canberra stating that the applicant "will be accompanied by German officers, Kriminalhauptkommissar Hans Trauter and Kriminalkommissar Heinrich Glomb. Please have his onward journey supervised..." A copy of the telex was sent to the Attorney-General's Department.

On 16 July, Mr. Clarke gave instructions to Ms.

Loretta Baxter, another officer in the Department, to prepare a requirement under s.22 of the Migration Act. It was signed on that date by Mr. Robilliard. It required Lufthansa to receive on board on 18 July for conveyance to Frankfurt both the applicant and an officer charged with the custody of the applicant.

On 17 July, Mr. W.P. O'Brien, the applicant's

solicitor, spoke to Mr. Robilliard. Both Mr. O'Brien and Mr. Robilliard gave evidence. Mr. Robilliard's version of the conversation, which Mr. O'Brien accepted in cross-examination, was as follows:

"During that conversation Mr. O'Brien said to me
"There are two West German Police Officers who
arrived in Australia today. Will you confirm that
they are intending to arrest Mr Schlieske when he
boards the plane?" or words to that effect. I said
to Mr O'Brien "I have heard that two police offices
have arrived from West Germany but I do not know
what they intend to do. I suppose that safety of
aircraft or passengers is a legitimate concern to
the airline carrier and it would be reasonable to
expect them to take some security measures" or
words to that effect."

Reference should next be made to the issues in the

proceedings as disclosed in the pleadings. In matter G.324 of 1987, the proceedings under s.39B of the Judiciary Act 1903, the application seeks first, an injunction restraining the Minister for Immigration and Ethnic Affairs, the first respondent, "from executing an order for the deportation of the applicant by way of conveyance to the Federal Republic of Germany"; secondly, an injunction restraining the Minister from requiring the master, owner, agent or charterer of an aircraft to receive the applicant on board for conveyance to the Federal Republic of Germany. By his amended statement of claim in this proceeding, the applicant, after reciting the forensic history of the matter, alleges that between October 1986 and July 1987 the Attorney-General, the second respondent, the Commissioner of the Australian Federal Police, the third respondent and the Director of Public Prosecutions, the fourth respondent, by their respective agents counselled and procured the Minister for Immigration to execute the deportation order by way of:

(a) arranging for the involuntary conveyance of the
applicant from Australia in the custody of
the...agents of the Federal Republic of Germany;...or
alternatively
(b) involuntary conveyance of the applicant from Australia
to the Federal Republic of Germany (para.13A).

Alternatively, the applicant alleges that the

Attorney-General and the Commissioner of the Australian Federal Police by their agents and the Commonwealth, the fifth respondent, by its agents communicated with the agents of the Minister for Immigration and the agents of the Federal Republic of Germany for the purpose of ensuring that the deportation order would be executed in the manner described in (a) and (b) above (para.14); it is further said that the agents of the Minister for Immigration knew of these matters and failed to prevent the attempted execution of the deportation order in the manner alleged (para.14A).

Alternatively, it is alleged that in July 1987, the

Minister for Immigration by his agents commenced to execute the deportation order "by way of the involuntary conveyance of the applicant from Australia to the Federal Republic of Germany." (para.15)

It is then said that this conduct of the Minister for

Immigration by his agents is unlawful in that -

(a) the power of the Minister to deport the applicant is
being or will be exercised for an improper purpose,
that is, the extradition of the applicant against his
will to the Federal Republic of Germany;
(b) insofar as the Migration Act purports to authorise
the Minister to deport the applicant against his will
to a particular destination, it is ultra vires the
Constitution (para.16). (On behalf of the
applicant, it is accepted that in the light of the
decision in Znaty v. Minister for Immigration [1972] HCA 14; (1972)
126 CLR 1, this is a formal submission only.)

It is then said that the conduct of the

Attorney-General, the Commissioner of the Australian Federal Police and the Director of Public Prosecutions is unlawful as an abuse of power by encouraging the Minister for Immigration to execute the deportation order for the improper purpose alleged (para.17). It is further claimed that the Attorney-General, the Commissioner and the Commonwealth acted unlawfully in that they attempted to execute the deportation order for an improper purpose, that is, the extradition of the applicant against his will to the Federal Republic of Germany (para.18).

In proceedings No. G361 of 1987, the applicant seeks

to review the decision of Mr. Robilliard under s.22(1) of the Migration Act requiring Lufthansa to receive the applicant on board an aircraft for conveyance to Frankfurt. By s.22(1) and (3):

"(1) The master, owner, agent or charterer of a
vessel shall, on being required in writing by an
authorized officer so to do, receive a deportee on
board for conveyance to a place specified in the
requirement, being a place to which the vessel is
bound, and also receive on board, for such time as
is required by the authorized officer, a person
charged with the custody of the deportee.

Penalty: $l,000.

(3) An officer shall not make a requirement under
sub-section (1) unless he is satisfied on
reasonable grounds that the deportee will be
permitted to land at the place specified in the
requirement, and it is a defence to a prosecution
for a contravention of that sub-section if the
defendant proves that, if the requirement had been
complied with, the deportee would not have been
permitted to land at the place specified in the
requirement."

The applicant alleges that the decisions were made

for an improper purpose, i.e. a "disguised" extradition and were thus not authorised by s.22(1).

By his defence filed in proceedings No. G324 of 1987,

the Minister pleads that by virtue of the decision of Gummow J. in matter No. 311 of 1987, the applicant is estopped from pleading or proving the allegations of improper conduct made in the amended statement of claim. It is convenient to deal with this defence now.

It will be remembered that in the decision relied on,

Gummow J. dismissed the claim for interlocutory relief on the grounds that the evidence before him did not disclose a serious question to be tried. His Honour's decision was plainly interlocutory, both as a matter of form and of substance. There being no final decision relied on, there can be no estoppel (see D.M. Byrne Q.C. and J.D. Heydon Cross on Evidence 3rd Australian ed. at pp.121-2; Spencer-Bower and Turner Res Judicata, 2nd ed. at pp.132-3; Halsbury's Laws of England, 4th ed., Vol. 16, para.1518 p.1021 and para.1563 p.1055). The authorities were discussed by Everett J. in Singh v. Mahoney, unreported, 16 May 1986. It is true that in some cases what may appear to be an interlocutory decision, is in truth a final one. But, in the present case, the decision of Gummow J. was in every sense interlocutory. The matter was brought forward on short notice and on limited evidence and it was clear at the time that a final hearing would be conducted at a later date. Insofar as Everett J. may have decided that a decision which is truly "interlocutory" can give rise to a relevant estoppel, I must respectfully disagree.

I turn now to the applicant's claim that the attempt

to deport him was an abuse of the Commonwealth's deportation power. In dealing with deportation and irregular extradition, Professor Shearer, op. cit. says (at p.187):

"Deportation is a procedure which bears only
superficial resemblance to extradition. While both
may achieve the same practical result, their
procedures and objectives differ fundamentally.
The purpose of extradition is to restore fugitive
criminals to the jurisdiction of authorities who
have a lawful claim to try or punish them. This
purpose is served only where that claim is properly
tested, all established safeguards observed, and
the offender is returned in suitable custody. The
purpose of deportation, by contrast, is to expel an
undesirable alien; this purpose is achieved in the
act of departure, and the subsequent destination of
the deportee is of no consequence. In practice,
however, it is often necessary for the deporting
authorities to arrange a destination for deportees,
since their acceptability in other countries may be
limited by reason of their known antecedents
(Professor Shearer referred to ss.21 and 22 of the
Migration Act). Airlines and shipping companies
will naturally wish to be assured that the deportee
has a right of entry, or will not be denied entry,
at the intended port of disembarkation. Most often
deportation is effected to the country of which the
deportee is a national.

Where there is a genuine co-incidence of grounds
for deportation and the desire of the State of
nationality of the deportee to prosecute,
deportation may result in de facto extradition,
which is not on that account objectionable."

In my opinion, the Minister's power to deport may be

validly exercised notwithstanding that the Minister knows that the person being deported is wanted by his own country for an alleged criminal offence provided that the Minister is bona fide of the opinion that his or her deportation is in the interests of Australia (see Soblen's Case, supra, at pp.301-2). As Mason J. said in Barton's Case, supra, at p.504:

"A distinction is to be observed between extradition
and deportation and powers conferred by the
Migration Act can be exercised only for the
purposes authorized by that Act."

In Znaty, supra, it was held by majority (McTiernan,

Owen and Walsh JJ., Barwick C.J. and Windeyer J. dissenting) that the Minister may determine the way in which a deportation order is to be carried out and may choose the vessel or aircraft in which the deportee may leave the country (per Walsh J. at p.8). Walsh J. added:

"The steps taken in the exercise of those powers are
not invalidated if the intended practical result is
the arrival of the deportee in a particular
country."

On the other hand, Walsh J. acknowledged that the

deportation procedure could not be "used as a mere sham in order to effect another purpose" (for instance, an irregular extradition) (see at pp.15-16).

The question, then, is one of fact. Were the

procedures here being used in good faith in the execution of the wish to deport the applicant as an illegal immigrant? Or, on the other hand, were the actions of those involved a mere sham disguising what was, in truth, a de facto, but not de jure, extradition?

As has been said, both Mr. Robilliard and Mr. Clarke

swore affidavits and were called to give oral evidence. They asserted that their actions were in no way influenced by any desire on their part to achieve a disguised extradition. But the objective evidence shows that their deportation procedures were planned to coincide with the wishes of the German Government. The real question here is whether the fact that the Australian immigration authorities were prepared to co-operate with the German officials in handing the applicant over to the custody of German police officers on a German aircraft bound for Frankfurt amounts to a "sham" deportation.

On behalf of the applicant, reliance was placed upon

the failure to call the "real" decision-makers among the Australian authorities, in particular, Messrs Wilson, Mahoney and Stankevicius. It should be assumed that, if called, their evidence would not have assisted the respondents.

At the same time, we have the advantage of what

appears to be a full documentary account of the matter from the point of view of each of the Departments involved. It may be that even if Messrs. Wilson, Mahoney and Stankevicius had been called, their evidence may not have added anything to that account.

The history of the matter may be conveniently divided

into two phases: the events before and after 3 July 1987. It will be remembered that on this date Burchett J. upheld the applicant's claim for judicial review. Until this point, the deportation procedures lay dormant because it was appreciated by all concerned that those procedures could not be used as a substitute for extradition. Once it was decided no longer to press for extradition, attention reverted to the question of deportation.

In their evidence, both Mr. Robilliard and Mr. Clarke

were concerned to play down the role played by Mr. Kuster. Yet it seems likely that Mr. Clarke spoke to Mr. Kuster as early as 3 July. It is plain from Mr. Clarke's memorandum dated 7 July that he spoke to Mr. Kuster on that date and that Mr. Kuster then suggested the Lufthansa flight to Frankfurt. It will be remembered that Mr. Clarke's note (Folio 117) was in these terms:

"(2) Should travel on LH (Lufthansa) service to
Frankfurt as German Federal Police officers would
be on board to take Schlieske into custody as soon
as he boarded aircraft."

At all events by 7 July, both the German and

Australian authorities had abandoned the extradition proceedings and were concentrating their attention on the execution of the deportation. Interpol, Australian and German, was immediately made aware of the proposal to deport the applicant by placing him on the Lufthansa flight in the custody of the German police officers. The decisions taken by Mr. Robilliard and Mr. Clarke in this regard were taken by them not only in the knowledge that the applicant would be delivered into the custody of the German Government but also in co-operation with that Government. In other words, the conduct of Mr. Robilliard and Mr. Clarke, viewed objectively, is consistent only with an intention, on their part, to deliver the applicant into the custody of the German Government. This, in my view, is a "sham" extradition and, as such is an abuse of the deportation power.

On behalf of the respondents, much reliance is placed

upon the circumstance that the applicant's travel papers permit him to enter only Germany. But it does not follow that the applicant should be directed to a Lufthansa flight to be accepted into the custody of the German police officers. It only means that it is open to the Minister to choose Germany as the applicant's destination. Lufthansa is not the only airline flying to Germany; nor is it necessary that the applicant be handed over to officers of the German police force. Put differently, it is possible for the Minister, in good faith, to deport the applicant to Germany without necessarily delivering him into the custody of the German Government at Sydney airport.

In proceedings G.324 of 1987, the applicant seeks

general relief seeking to restrain his deportation to Germany. In my view, that general claim fails and I propose to dismiss that claim.

In proceedings No. G361 of 1987, more limited relief

is sought and I propose to grant limited relief so as to restrain Mr. Robilliard from requiring Lufthansa to receive the applicant on board. In other words, whilst I am of the view that the Minister has the power to deport the applicant to Germany, it would be an abuse of that power to deliver the applicant to Lufthansa for the purpose, as was proposed, on 18 July, of his being surrendered to the German Government.

Since the applicant has been only partially

successful, it is appropriate that there be no order as to costs, except for the costs of the amendment already dealt with.