Re Minister of Immigration and Ethnic Affairs v the Lebanese Moslem Association; Soher Gaber Hamed and Sheikh Taj-Eh-Din Hamed [1987] FCA 49 (19 February 1987)

FEDERAL COURT OF AUSTRALIA

Re: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
And: THE LEBANESE MOSLEM ASSOCIATION; SOHER GABER HAMED and SHEIKH TAJ-EH-DIN
HAMED
No. G341 of 1986
Administrative Law - Constitutional Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Burchett J.
Jackson J.

CATCHWORDS

Administrative Law - judicial review - discretions to grant temporary entry permit and to order deportation under Migration Act 1958 - decisions to refuse permit to, and order deportation of, applicant - brief time between applicant's submissions and making of decisions - whether breach of rules of natural justice - decisions based on finding that applicant was a "focal point" of dissension - whether decisions therefore unreasonable - applicant an Imam - whether Constitution, s.116 a relevant consideration not taken into account.

Constitutional Law - whether decisions contrary to Constitution, s.116.

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

Migration Act 1958, ss,5,6,6A,7,18.

Constitution, s.116.

Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth [1943] HCA 12; (1943) 67 CLR 116;

Attorney-General for Victoria; Ex rel. Black v. The Commonwealth [1981] HCA 2; (1981) 146 CLR 559;

R. v. Thames Magistrates' Court; Ex parte Polemis (1974) 1 WLR 1371;

Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 68 ALR 441 referred to.

HEARING

SYDNEY
19:2:1987

ORDER

The appeal be allowed with costs.

That the orders made by the Court on 25 July 1986 be set aside and, in lieu thereof, that the application for an order of review be dismissed with costs.

DECISION

The facts and the legislation relevant to this matter are fully set out in the judgment of Jackson J., as they were in the judgment of the trial judge. I agree with Jackson J. that the appeal should be allowed and in general with his reasons.

2. So far as concerns the case of the respondents which relied on the religious freedom for which s.116 of the Constitution provides, it seems to me that there was no illegality or impropriety in the Minister "keeping it in mind" (to adopt the language of the trial judge) as distinct from regarding himself as "bound" by it. The failure to follow the latter course was the basis upon which the learned judge held the exercise of the Minister's discretion to have miscarried.

3. The challenge of the respondents was not to any law made under the Constitution, but to the application of s.116 to the decision itself. If the respondents are correct, the discretion given to the Minister under s.18 of the Migration Act 1958 will be limited by the constitutional guarantee, but for present purposes it is only necessary to look at the decision.

4. It was not the intention of the Minister, or the purpose or effect of what he did, to establish a religion, or to impose any religious observance, or to prohibit the "free exercise of any religion". It was this last-mentioned part of s.116 upon which the applicants relied. The matter raised is not one calling for esoteric consideration of constitutional problems, but is simply one of fact. There was not, in intention or effect, any prohibition of the free exercise of a religion. The one Imam, albeit he was influential, and highly regarded by members of the sect in a particular locality, was not given further permission to remain, and, as a non-citizen, was ordered to be deported. The practice of the religion to which he adhered was not banned or restricted, although the necessity would arise to find another Imam.

5. For reasons given by the trial judge and by Jackson J. I am of the view that the submission respecting natural justice and reasonableness should be rejected.

6. I am of the view that the appeal should be allowed with costs, the order of the primary judge set aside and the application to the Court dismissed with costs.

I agree with the orders proposed. The question for the Minister raised essentially a difficult choice to be made in the exercise of his discretion. It was for him to determine those facts which formed the necessary basis of his decision. In my opinion, it was, in law, clearly open to him to conclude, upon the material before him, that the Imam's presence in Australia was a catalyst for conflict in a divided community.

2. To regard the Migration Act 1958 as authorizing the Minister to act on such a view involves no clash with s.116 of the Constitution. The judgment under appeal does not hold otherwise; however it does hold that the Minister was bound to take account of the constitutional denial of a power in Parliament to authorize him to take any action "for prohibiting the free exercise of any religion". But with very great respect, the Minister is not obliged in law to recite considerations which could only arise as matters required to be taken into account if he were to adopt a particular view, which he does not in fact adopt. As the Minister's approach in the present case raised no question under s.116, he involved himself in no error of law by not adverting to that important constitutional guarantee.

3. Nor can I see any validity in the attempt to retain the decision in the respondents' favour upon the ground, which the learned primary judge rejected, of a denial of natural justice. The submission made was in the teeth of the anxious and detailed consideration given to all aspects of this matter, and the repeated opportunities offered for the presentation of any matters desired to be put in support of the Imam.

This appeal is concerned with decisions of the appellant made on 22nd June 1986:-

(a) refusing to grant permanent resident status to the

second and third respondents; and

(b) ordering their deportation.

2. The decisions were based on matters relating to the third respondent and it was accepted that the fate of the proceedings in relation to the second respondent should follow the fate of the proceedings in respect of the third respondent. It was also accepted that there were no considerations special to the deportation orders and that those orders should stand or fall with the decisions refusing to grant permanent resident status, an expression the meaning of which I shall now mention.

3. Under s.18 of the Migration Act 1958 the Minister may order the deportation of a person who is "a prohibited non-citizen" for the purposes of the Act. One of the modes which may lead to becoming a prohibited non-citizen is by the operation of s.7(3) which provides that:-

"(3) Upon the expiration .... of a temporary entry permit, the
person who was the holder of the permit becomes a prohibited
non-citizen unless a further entry permit applicable to him
comes into force upon that expiration ... ."

S.7(3) was applicable to the third respondent because he was a "non-citizen" and because the last of a number of temporary entry permits granted to him had expired with no further entry permit applicable to him then coming into force. The holder of an entry permit, other than a temporary entry permit, is colloquially described as having permanent resident status.

4. An entry permit may be granted to a non-citizen by an "officer" (s.6(2)), and the Minister too may exercise that power (s.5(1AA)). The entry permit may be granted after arrival in Australia (s.6(5)) but if the entry permit to be granted is other than a temporary entry permit (s.6A(8)), it may not be granted unless one or more of the conditions specified in s.6A(1) of the Act is fulfilled in respect of that person. In the case of the third respondent the relevant condition is that referred to in s.6A(1)(d), namely that:-

"(d) he is the holder of a temporary entry permit which is in
force, is authorized to work in Australia and is not a
prescribed non-citizen;"

and in the case of the second respondent the relevant condition would be s.6A(1)(b), i.e. being the spouse of the holder of an entry permit.

5. It may be noted that s.6A(1)(d) requires that the person to whom the entry permit be granted be the holder of a temporary entry permit at the time of grant of the entry permit pursuant to s.6A(1). No point was taken by the appellant before us or before the primary Judge based on the fact that at the time when the impugned decisions were made the second and third respondents were not the holders of temporary entry permits, it being assumed that involved in the decisions was also the decision not to grant the necessary temporary entry permits. It is unnecessary in this case to question the propriety of this course in the light of the approach taken by the parties.

6. The third respondent is an Egyptian national who came to Australia in 1982 at the instigation of the Australian Federation of Islamic Councils in order to take up the position as the Imam of the Lakemba Mosque. The invitation was for a three month period initially but the third respondent has continued in office as Imam since then.

7. The need in 1982 to appoint a new Imam was brought about by the dismissal of the previous Imam, Sheikh Zeidan, a matter with which the third respondent, it may be observed in passing, was in no way concerned. It appears, however, that Sheikh Zeidan, notwithstanding the existence of an injunction restraining him from doing so, interfered with prayer meetings at the Mosque after the appointment of the third respondent as his successor and the events which followed are summarized in the reasons for judgment of the primary Judge as follows:-

"Thus, very early in the Sheikh's stay, there appeared the first
important sign of the trouble which has continued since. About
the time of expiration of the first temporary entry permit, a
number of members of the association wrote to the department
asking that a permanent visa not be granted to the sheikh.
They made allegations of some importance against him, claiming
that he had been associated with extremist, indeed terrorist,
elements. However, there also appeared early evidence that the
sheikh had attracted considerable support among members of the
association. In particular, that may be deduced from the
report of results of an election of the council of the
association which took place on 6 June 1982. That sign of
support, no doubt, assisted towards the obtaining of the permit
by the sheikh allowing him to remain until the end of 1982.
However, in July further formal accusations were made to the
department against the sheikh; it was suggested that he
preached violence in the cause of fundamentalist Islamic
nations, that he was believed to be a member of the "Soldiers
of God", a group said to be involved in the assassination of
President Sudat of Egypt, and had verbally attacked Australian
women. It was said that in July the sheikh made a speech at
the Lakemba Mosque of a highly political kind attacking the
intervention in Lebanon of "dummies" of Russia and the United
States, and speaking of a conspiracy to "eliminate the Islamic
presence in Lebanon". Hearers were urged, according to the
allegations made, to sacrifice themselves in the cause of
Islam."

8. As I have said, the third respondent came to Australia under a temporary entry permit. He was given a further such permit which expired at the end of 1982. The Australian Federation of Islamic Councils wrote asking for a two year extension, but supporters of the former Imam asked for the expulsion of the third respondent and in the end the then Minister gave a 12 month temporary entry permit which covered the period until the end of 1983. That entry permit expired on 31 December 1983 without any further extension having been decided although there had been some discussion about it. In January 1984, however, the then Minister determined that "subject to you and your family meeting the normal health and character requirements" there should be granted a temporary entry permit for a further year expiring on 31 December 1984.

9. On 21 January 1985 the present Minister, who had taken over the portfolio a relatively short time before, decided to allow the third respondent to remain for a further six months and on 7 February 1985 a meeting took place between representatives of the Department, the third respondent and others to tell the third respondent of that decision. The third respondent declined to accept the extension. He also refused to submit his passport to enable the issue of a temporary entry permit to cover that of a six month period.

10. As the primary Judge said:-

"The following day, the Imam made a rather provocative speech at
the mosque. There was some discussion at the hearing about the
accuracy of the translation, but not too much should be made of
this problem, since it appears to have been open to the
applicants to arrange to have a further translation done if
they did not like the department's version. The sheikh
expressed himself in favour of the sacrifices made by young
people "assured of paradise", who had made suicide bombing
raids on American and Israeli establishments in Lebanon. He
said, according to a departmental translation:

"Victory is near, but we must merit it if we want to
assure the greatness of the Moslem nation ...

Oh those who believe in God, the five pillars of Islam
and the Prophet, faithfulness should not be for a land
or a law which is non-Islamic and those who do not share
these principles are not for us but for them ..."

Understandably, senior counsel for the respondent relied upon
this utterance as tending to justify the view that the sheikh
has been a focal point of dissension. However, for some reason
the June 1986 decisions were apparently made without reliance
on the speech.

In March 1985, the respondent met with members of a delegation
who criticized the sheikh and opposed his continued presence in
the country, and also with a delegation urging a contrary view.
An important point made in the respondent's discussions with
the latter group was the sheikh's refusal to accept the
proferred six-month extension and his refusal to submit his
passport to enable the issue of a further temporary entry
permit covering the six-month period (that is, to 30 June
1985)."

11. It is unnecessary for present purposes to go into great detail concerning the events which followed thereafter. It suffices to say that on 31st January 1986 the appellant reconsidered the question of the grant of permanent resident status to the second and third respondents and refused to grant them the necessary entry permits. He also required them to leave Australia before 28th February 1986. That decision was the subject of an application to the Court for an order of review but, as did the primary Judge, I find it unnecessary to go into the detail of it because it appears to have been supplanted entirely by the events to which I am about to refer.

12. On 5th May 1986 the appellant's Department indicated that he proposed to reconsider the whole matter and there was later sent to the third respondent a draft of the submission proposed to be made to the appellant by the Secretary of the Department, Mr McKinnon. The third respondent responded on 20th June 1986 by the delivery to the Department of two submissions (one lengthy, one brief) in response.

13. Some alterations were made to Mr McKinnon's draft submission to the appellant in order to take into account matters contained in the third respondent's two submissions of 20th June. The appellant dealt with the matter two days later, signifying his decisions by adding in handwriting to the submission the following:-

"I have read and considered this submission and also the
attached material including the submission from the Applicant
Al Hilaly dated 20th June 1986. I now (i) revoke the decision
I made on 30th January 1986; (ii) refuse the grant of permanent
resident status to the Applicant Al Hilaly and his wife; and
(iii) sign the attached orders for the deportation of the
Applicant Al Hilaly and his wife."

14. The primary Judge was of the view that the application for review of those decisions under s.5 of the Administrative Decisions (Judicial Review) Act 1977 should succeed. He took that view because he thought that the appellant had not taken into account matters which, by reason of s.116 of the Constitution, he was obliged to take into account. Accordingly he set aside the appellant's decision of 22nd June 1986 and directed that the matter be remitted to the appellant for reconsideration in accordance with his reasons. The appellant contends that the primary Judge's decision on the application of s.116 was in error and it is convenient to deal with that issue before turning to the other bases on which the respondents seek to uphold the primary Judge's decision.

15. S.116 of the Constitution provides that:-

"116. The Commonwealth shall not make any law for
establishing any religion, or for imposing any religious
observance, or for prohibiting the free exercise of any
religion, and no religious test shall be required as a
qualification for any office or public trust under the
Commonwealth."

and it is that part of s.116 which refers to laws "for prohibiting the free exercise of any religion" which is here relied on by the respondents.

16. It will be seen that the terms of s.116 are such that they operate as an inhibition upon the exercise of legislative power, including the power conferred by s.51(xxvii) to make laws with respect to immigration and emigration (Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, Attorney-General for Victoria (Ex rel. Black) v. The Commonwealth [1981] HCA 2; (1981) 146 CLR 559). I do not mean to convey by that that s.116 has no operation in relation to executive acts, but the true situation is that if an enactment permitted executive action under it which amounted to a prohibition upon the free exercise of any religion, the enactment to the extent that it permitted such action (and subject to the qualification referred to by Barwick C.J. in the passage to which I shall next refer) would be invalid. As Barwick C.J. said in Attorney-General for Victoria (Ex rel. Black) v. The Commonwealth (supra) at 580-581:

"The next observation I wish to make as to s.116 is that it
is directed to the making of law. It is not dealing with
the administration of a law. But, if that administration
is within the ambit of the authority conferred by the
statute, and does amount to the establishment of a
religion, the statute which supports it will most probably
be a statute for establishing a religion and therefore
void as offending s.116. That is so, not because of the
manner of the administration but because the statute,
properly construed, authorizes it. I say most probably,
because the purposive content of the expression "for
establishing" must, in any case, be satisfied."

Barwick C.J. was speaking, of course, of another part of s.116 but in my view his remarks apply equally to the part of s.116 presently in question.

17. Accepting the general proposition, however, that if executive action in conflict with the content of s.116 is authorized by statute, the statute to the extent to which it authorizes that action may be treated as being in conflict with s.116, and invalid, the case is not one where there is any finding that the action of the appellant did in fact constitute a prohibition on the free exercise of a religion, or was engaged in "for" prohibiting the free exercise of any religion. Instead the primary Judge took a different course. He held that it was clear from the reasons given by the appellant for his decisions that he was aware of the desirability of not interfering with the religious observance of members of the first respondent but then said:-

"It is one thing, however, to say that in determining
whether to remove an established Imam, in order that he
may be replaced by another whose preaching and other
behaviour may be more acceptable to the respondent, the
desirability of religious freedom has been kept in mind;
it is another thing to conclude that the respondent has
regarded himself, in making his decisions, as bound to
respect religious freedom. The advices to the respondent
appear to me to be drawn on the assumption that no right
of members of the association, in respect of religious
matters, can be infringed by decisions of the kind which
were made. In the first set of reasons, for example, it
is said that the "discretion in the legislation is at
large". Indeed it is, but the Constitution under which
the power to make the legislation arose imposes, in my
opinion, restraints which must be observed."

18. He went on to say that "at the least" the terms of s.116 must have required the appellant to take into account:-

(a) that the appellant had no right so to exercise his
powers as to endeavour to put an end to expressions
of a purely religious character on the part of the
sheikh, whether "fundamentalist" or otherwise; and

(b) that the appellant's decisions must not be brought
about by an opinion formed by him that the first
respondent's members might be better served
religiously by an Imam other than the one they had
chosen.

His Honour then held that the appellant, being obliged to take account of those matters, had not done so.

19. I am unable to agree with the approach taken by his Honour. In my view the question which arises is not whether the appellant took into account the terms of s.116 - assuming that the considerations mentioned by His Honour did represent the meaning of s.116 - but rather whether the exercise of power is "for" one of the ends provided by s.116. No finding was made by His Honour that there was a contravention of s.116 in that sense and if no more appeared the appeal should be allowed on that ground.

20. The respondents seek to maintain the primary Judge's decision, however, by establishing that the making of the decision in fact involved a contravention of s.116, and I shall deal with those arguments at a later point. Before doing so, however, it is convenient to deal with the arguments of the respondents on another ground on which they seek to maintain the decision, namely that the appellant denied them natural justice in making the decisions in question.

21. As I have said earlier, the appellant's decisions to refuse to grant permanent entry status and to order deportation made on 31st January 1986 were challenged in proceedings instituted in the Court on 26th February 1986, but those decisions became academic because of the later reconsideration of the issues involved. The third respondent's responses to the submission which it was proposed to put to the Minister were delivered in Sydney on 20th June at noon and at about 5.00 p.m.. On the same day the Secretary of the Department, who was in Canberra, made a recommendation to the appellant which referred to the third respondent's letter and proceeded to recommend that the appellant take the steps which in fact he did. The appellant was in Adelaide and on Sunday 22nd June 1986, having read through the submission to him, arrived at the decisions now attacked.

22. It is argued that the second and third respondents were denied natural justice because of the brevity of time between receipt of the third respondent's submission and the completion of Mr McKinnon's submission, and between receipt of that material by the appellant and his decision.

23. The primary Judge was of the view that the point failed on the facts, saying that it was by no means impossible that the respondent and Mr McKinnon, each of whom was very familiar with the matter from previous contact with it, could properly reconsider the question in the light of the further submission, within a day, or indeed within an hour or two. I agree entirely with this view. I quite accept that, as Lord Widgery C.J. said in Reg. v. Thames Magistrates' Court, Ex parte Polemis (1974) 1 WLR 1371 at 1374, a decision to which reference was made on behalf of the respondents, a breach of natural justice may occur if a party is not given a reasonable chance to present a case. It is a far cry from that, however, to say that a person who has been given the fullest opportunity to present his case to the decision-maker is then entitled to complain because of the decision-maker's diligence and expedition in dealing with the matter. It would make it a hazardous exercise ever to give a decision "on the spot".

24. The second aspect on which reliance was placed in this regard was that there was a denial of natural justice because neither the appellant nor Mr McKinnon took steps to make inquiries concerning new matters raised in the respondent's letters of 20th June.

25. The primary Judge said in relation to this submission:-

"Although this contention might have had some weight of its
own if the respondent had acted on the basis of making
findings of misconduct against the sheikh of the kind that
were in issue in Kioa v. West (1985) 60 ALJR 113, the
fate of the contention depends on the validity of the
"focal point" argument which is dealt with below. In the
way in which the respondent approached the problem, it was
simply not necessary to reach a conclusion whether the
allegations against the sheikh, or his refutations of
them, were correct. Insofar as the submission to the
respondent of 20 June contained other material (for
example, reference to his community service), I cannot see
that further enquiry was called for."

26. I agree with His Honour that the resolution of the issue turns on whether the appellant was entitled to adopt the "focal point" approach, the essence of which is that in a statement of reasons for his decisions pursuant to s.13 of the Administrative Decisions (Judicial Review) Act the appellant stated that he adopted what was contained in the submission to him from Mr McKinnon dated 20th June 1986. The matter so adopted was as follows:-

"22. A number of allegations against the Applicant have
been made.

23. The allegations against the Applicant are denied with
equal vehemence by the Applicant's supporters, who claim
that he is a genuine and valuable religious leader who has
the support of the majority of his community. This point
is emphasised by the Applicant himself in his most recent
submission to you where he goes to some length to refute
the allegations.

24. The allegations against the Applicant are not
supported by factual evidence. Their veracity cannot be
relied on and you may choose to disregard them.

25. Whatever be the factual position with respect to the
allegations made against the Applicant, it is undeniable
that there are divisions within the Lebanese community in
Sydney, evidenced by the fact that strong allegations are
made against the Applicant and equally strongly denied by
his supporters. The Applicant's presence appears to
exacerbate deep-seated passions within that community,
among both his supporters and his opponents. However, it
is not clear to what extent the divisions are caused by
the Applicant himself or the over-reactions of his
opponents, or whether the Applicant merely serves as a
focal point for pre-existing tensions within the
community, e.g. between Sunni and Shia Muslims, between
Muslims and Christians, or between the Lebanese community
and the Australian community in general. You should note
in this regard that in his most recent submission to you
the Applicant denies being a focal point for continuing
division and conflict within the Lebanese community, his
basic point in support of this assertion being that such
conflicts were present in Australia before his arrival and
are the result of divisions that exist in Lebanon. He
further states that to the extent to which there are
divisions between the supporters of Sheikh Zeidan and the
Lebanese Moslem Association he has always tried to avoid
such divisions, and to heal them when they have occurred.
He states that those divisions have now settled down and
are only likely to be rekindled by his departure.
However, notwithstanding the Applicant's assertions to the
contrary you may consider that he is a focal point for
continuing division and conflict within the Lebanese
community and within the Australian community as a whole.

26. Refusal of resident status to the Applicant and his
departure from Australia will create the necessity to fill
the position he presently occupies. It could take some
considerable time to find a suitable replacement and the
community could be without a religious leader.
Furthermore, it is not known whether any replacement would
be able to overcome the divisions which presently exist in
the Lebanese community.

...

29. Notwithstanding the Applicant's possible eligibility
for consideration for the grant of permanent resident
status under both the Act and policy, and the interests of
the two Australian-born children in having their parents
remain in Australia, you may decide that, because his
presence is a focal point for continuing division and
conflict within the Lebanese community and within the
Australian community as a whole, this is not in the best
interests of that community nor the best interests of
cohesiveness of the wider multicultural Australian
community and that the Applicant should not be granted
permanent residence."

27. It is clear from the material which was before him that the appellant was entitled to take the view that the third respondent was in fact a focal point for dissension in the Muslim community. Thus in his submissions of 20th June 1986 the third respondent had said:-

"I acknowledge that some aspects of my early speeches are
offensive to Australians. They were not intended to be
so."

and in relation to a speech made on 12th November 1983 said:-

"I believe that that speech is typical of the nature of the
speeches which I make and that those speeches shown to you
are examples of speeches of which I now regret the manner
of the delivery."

The third respondent also said in that letter:-

"I recognise that I do not command total support and that
this may partly be the result of injudicious language used
by me when I arrived. I genuinely believe that I have
changed for the better and that my continued presence in
Australia can only be beneficial to my followers and the
Australian community."

28. Secondly the other documents attached to Mr McKinnon's submission showed that the view was open that the presence of the third respondent was in fact the occasion for the expression by persons who were Lebanese or of Lebanese descent of views strongly in favour of or strongly against the third respondent. Whilst much of the material dated from the early part of the third respondent's period in Australia, some of it related to a much later period. Thus a complaint made on 22nd February 1985 by the Lebanese Ambassador enclosed translations of speeches made by the third respondent on 9th November 1984 and 8th February 1985 at the Mosque. In the latter speech in particular the third respondent made remarks which were inflammatory and concluded:-

"Faithfulness should not be for a land or a government
which is not Islamic and those who do not share these
principles are not for us but for them."

29. The primary Judge observed in relation to that statement that "for some reason the June 1986 decisions were apparently made without reliance on the speech." It is not entirely clear to me that this is so because the Ambassador's letter enclosing the speeches was part of the material on which the appellant stated he based his decision. It may well be, however, that His Honour's observation was directed to paragraph 24 of Mr McKinnon's submission.

30. It was argued in support of the respondents' case that it was not permissible for the appellant to adopt the view that the third respondent should not be granted permanent entry status without examining the truth of the allegations made against him; in other words that it was not sufficient for the appellant to find that it was established that the third respondent was the focal point for dissension.

31. I do not agree with this view.

32. The discretion conferred upon the Minister by s.6(2) of the Migration Act - see s.5(1AA) of the Act - is relevantly unfettered. As Sheppard J., with whom the other members of the Court agreed, said in Minister for Immigration and Ethnic Affairs v. Conyngham and ors (Full Court, 25th July 1986, as yet unreported):-

"The subject matter of this dispute is the proposed entry
into Australia of persons who are not Australian citizens.
The discretion both to grant and to cancel entry permits,
whether temporary or otherwise, and to grant and to cancel
visas is unfettered; see sub-sec. 6(2) and ss. 7, l1A and
11B of the Migration Act. As Barwick C.J. said in Salemi
v. McKellar (No. 2)(1977) [1977] HCA 26; 137 CLR 396 at p 402, "The
Parliament in this legislation (the Migration Act) is
dealing with a national interest of paramount importance,
namely, the composition of the nation, determining who
shall enter and who shall stay". His Honour was dealing,
not with a case concerning a temporary entry permit, but
with a case involving the deportation of a prohibited
immigrant under s.18. But that makes no difference to the
significance of what he said. It emphasizes the nature of
the power which is here involved and the fact that the
legislature has entrusted decisions as to who should be
allowed to enter and to remain in this country to the
Minister and officers of his Department, not to the Court.
Some of what Barwick C.J. said in Salemi has been departed
from; See Kioa v. West (1985) 60 ALJR 113. But
nothing there said nor which appears in any subsequent
legislation affects the general purport of what his Honour
said about the nature of the legislation and the powers
conferred on the Minister by the Migration Act."

33. It is hardly surprising that one of the views which might be adopted in the exercise of the powers in question is that, without personal fault, an individual may be regarded as one whose presence gives rise to such dissension that the person, in the Minister's view, should not be permitted to remain in the country. It was, as I have said, open to the appellant to form the view that the third respondent was such a person, and in my view, the appellant did not err by adopting the "focal point" approach.

34. The next question with which it is necessary to deal is whether the decisions in question in fact amounted to a contravention of s.116 in the sense referred to by Barwick C.J. in the passage earlier quoted.

35. In this regard the matters relied on by the respondents relate firstly to suggestions that a Mufti or Grand Mufti in Beirut or in Cairo might play a part in the selection of a replacement for the third respondent, and that the appellant should encourage that approach.

36. The issue was first mooted in 1982 when in a conversation which took place on 3rd November Mr Eddie Obeid, a leader of the Lebanese Christian community, urged on the New South Wales Regional Director of the relevant Department the view that the third respondent should not be permitted to remain in Australia and that the Department should "use diplomatic channels to contact the Mufti in Lebanon, to appraise him of the problem and seek his assistance in finding a suitable replacement Imam".

37. Again at a meeting between the New South Wales Regional Director and some vociferous opponents of the third respondent held in November 1982, the Regional Director asked for the views of those seeing him "on how transition from one Imam to another one might be handled." He noted that "They either had not thought that through or were not prepared to discuss it. I suspect the former." The Regional Director also noted that the Department, in a "package of suggestions to facilitate the transition process" should "think carefully about whether some dialogue with the MUFTI might be useful."

38. In 1985 the issue arose again when the appellant met on 26th March 1985 a delegation opposed to the third respondent. He was to meet the next day a delegation from the first respondent. One of the matters apparently raised by the delegation which was opposed to the third respondent was that a replacement for the third respondent could be provided by or through the Grand Mufti in Lebanon. A Submission to the Minister to brief him for the second meeting then included the following:-

"The view that the Grand Mufti in Lebanon be asked to
provide a replacement for Imam El-Hilaly is hard to answer
simply.

- To begin with, an Imam is appointed by and
responsible to his community, NOT any particular
religious hierarchy. There is no "qualification"
process of ordainment, although nowadays Imams are
usually graduates in Islamic theology.

- The employing authority in this case, the voice and
organ of the religious community, is the LMA. It is
not for the Government nor yesterday's delegation to
instruct the LMA about replacement action - although
no doubt guidance could be offered sensitively. The
LMA's receptivity would be another question
altogether.

- The Grand Mufti is understood to be the supreme
authority in canon law - at least for Lebanese Sunni
Muslims.

- Interestingly, a recent letter to you from the
President of the LMA (attending as part of today's
delegation) says that Imam El-Hilaly "was sent to us
from Lebanon with impeccable references from the
Grand Mufti of Lebanon and the Islamic Supreme
Council as a religious leader of charismatic force
and great dedication". Would the Grand Mufti's
replacement be even more charismatic?

- If Imam El-Hilaly left, there is no doubt that the
previous Imam, Zeidan (markedly pro-Iraqi) would be
actively seeking the job, resulting in short or
long-term divisions within the community."

39. On 27th March 1985 the Acting Assistant Secretary, Ethnic Affairs Branch of the appellant's Department noted that he was directed by the Minister to prepare a new briefing for a meeting which the Minister was shortly to have with the third respondent. He noted that one of the matters of which the briefing should take account was:-

"(ii) the proposal that Al-Hilaly be replaced by a nominee
of the Beirut-based Mufti".

and the briefing note prepared for the Minister for the meeting on 27th March 1985 with representatives of the first respondent recorded that at the meeting the Minister "might want to" ask why the third respondent had aroused such deep and widespread animosity and whether it "would not be better to wipe the slate clean and appoint a new Imam able to enjoy wide support".

40. Further in a note on a recommendation to him from the Secretary of the Department dated 20th May 1985, the Minister had added "P.S. Can we move hastily to arrange visit from the Grand Mufti from Beirut "as our guest".

41. The question was discussed further in a Submission to the Minister in mid 1985 which contained the following:-

"Grand Mufti Options

. Anti-Hilaly delegation that saw you on 26 March urged
that the Imam "be replaced immediately by a nominee
of the Mufti (resident in Beirut), thus restoring the
Lakemba mosque to Sunni allegiance" (extract from
record of meeting).

. A letter to you earlier this year from the President
of the Lebanese Moslems' Association says that
Al-Hilaly "was sent to us from Lebanon with
impeccable references from the Grand Mufti of Lebanon
..." (emphasis added).

. A Mufti is a religious judge/canon lawyer in Islam.
Under the Ottoman Empire and in classical times, a
Mufti's religious and secular authority was
considerable, but the growth of national and secular
governments have reduced their power enormously.

. The only Grand Mufti is, we understand, in Cairo at
Al Azhar University. The Mufti in Beirut, Sheikh
Hassan Khalid, was elected for life by the Lebanese
Government and is not believed to be active
politically.

. His dictates would carry only moral authority in
Lebanon at the best of times, and given the current
fragmentation of society there, he probably enjoys
little power at all.

. A senior figure in Australian Islam has assured us
that the Mufti would have no influence in Australia
whatsoever; he could do no more than offer advice
which could be ignored with impunity.
. Informal discussion with Foreign Affairs reveals that
no religious or secular leaders of Lebanon have ever
been invited to visit by the Australian Government
(the Maronite Abbott was making a private - but well
connected - visit earlier this year).

. Given the complex and bitter religious divisions in
the Lebanon, Foreign Affairs believes that inviting
the titular leader of one particular faction as a
guest of Government would undermine our even-handed
stance.

. Considering the likely difficulties in the way of
bringing the Mufti to Australia, the lack of
influence he would command here, and the religious
rights of an Islamic community to have an Imam of its
own choosing, one could not look with confidence to
this option resolving the succession problem.

. However, there could possibly be value in floating
the idea of a visit by the Grand Mufti in Cairo, on
the basis that he could be invited to consider and
discuss how the interests of Australian Sunni Muslims
could best be served in this country.

. If you are attracted to this idea, you could write to
the Lebanese Moslems' Association to say that you
have it in mind to suggest such a visit, which might
also be of some help to them in arranging for an
untroubled replacement of their present Imam.

. In the circumstances, it is probable that the
Association would reject this suggestion out of hand.
To give the option a longer run, you could write at
the same time to the Australian Federation of Islamic
Councils (AFIC), canvassing their reactions to the
proposal of a visit from the Grand Mufti, which could
focus in part on continuing migration and community
relations problems with Imams."

42. The appellant noted on the document that he agreed to the proposals contained in the last three paragraphs.

43. A further document relied on in this regard is a note of a discussion which took place on 6th August 1985 between the appellant and the Deputy Secretary of his Department. It related, amongst other things, to a discussion which the Minister had just concluded with Professor El Erian, Chairman of the Australian Federation of Islamic Councils and included the following:-

"The Minister had put to El Erian the possibility that
Al-Hilaly go at the end of September. He would facilitate
the entry of someone else in the meantime - that person
possibly coming in from overseas on a permanent basis. El
Erian had not reacted well to this suggestion. Al-Hilaly
could leave the job for a month but there would be
problems with any suggestion that he leave the country.
Al-Hilaly was not looking for permanent residence at this
time. El Erian wants us to put Al-Hilaly under his hands
for a year. He believes that Al-Hilaly would not let him
down. The Minister said an option would be to give him
three months periods. Once again, El Erian had diffulty
with this as it did not give Al-Hilaly the security he
needed.

The Minister said that following his discussion with El
Erian he wondered whether he should give Al-Hilaly a six
months temporary entry permit and, if things go well, he
might give him another six months TEP. He would then
press for an apology from Al-Hilaly."

44. On 29th July 1985 the appellant had written to the third respondent telling him that the applications for permanent resident status of himself and his family were refused but that he might remain in Australia until the end of September 1985, by which time the appellant expected the community to have had time to arrange a replacement Imam. The appellant, apparently in pursuance of his agreement to the course of action proposed as "Grand Mufti Options" in the Submission to which I have referred, wrote also to the first respondent on 31st July 1985 in the same connection and, although the letter is not in evidence, it seems likely that he mentioned the possibility that the Grand Mufti at Al Azhar University in Cairo could be of assistance in finding a successor to the third respondent as Imam. The response received was a letter of 28th November 1985 from the first respondent in which it was said:-

"We thank you for your letter of the 31st July, 1985 and
note the Minister's concern for the spiritual well being
of Australian Moslems.

We well recall that on 27th March, 1985 we raised the
matter of the possiblity (sic) of the Mufti in Beirut
visiting Australia.

This Association and its members, were surprised by the
Minister's suggestion that the Australian Government might
intervene in religious matters when we, as Australian
Citizens, claim the right to freedom of worship as we
choose fit without Governmental interference.

However, well intentioned your "conversation" was meant it
was perceived as do your recent decisions to be beyond
your responsibilities conferred by your portfolio.

We are even more aghast at the suggestion posed in the
second paragraph of your letter under reply and with the
greatest respect to the Grand Mufti of Al Azhar University
in Cairo, but that you take it upon yourself to suggest
that the Grand Mufti of the Cairo University could be of
assistance to us in locating a successor to our Immam.

These concepts of yours, no doubt swayed your decision on
whether Immam Taj should be allowed to remain in
Australia.

We are aware that Lebanon presents complex religious
divisions and that the Moslem Communities in Australia are
multi-ethnic.

That your assumption of deciding as a Minister of the
Crown, to recommend one or the other Mufti as being "more
appropriate" is a decision which we are sure you are not
competent to make.

You seem to believe that the religion of Islam has a
hierarchical concept of priesthood. Nothing could be
further from the truth. The Grand Mufti of Cairo and
Beirut are Moslem Jurists who are employed by the
Government on issues regarding Islamic doctrine. Although
highly learned, these Jurists have no real influence in
the countries in which they reside over any lesser ranking
order of priests. The religion of Islam in the religion
of Islam, priesthood is forbidden.

We note that the effect of your use of a migration
technicality is to deprive members of the religion which I
represent as President of freedom of worship.

This is a position which constitutionally you have no
right to take, and in view of the matters raised earlier
with you, it is obvious that the interference in religious
matter by the use of the migration and ethnic affairs
powers requires to be tested against the constitution of
the Commonwealth and the rights and liberties of
Australians to profess the faith of Islam restraint by
Government.

It is obvious that your decision was taken at the behest
of certain persons who claim to represent Lebanese
Maronites but who do not represent the majority of persons
in that community.

Our Association has at all times maintained good relations
with the majority of the Maronite community and with its
clerical representatives. We have a common task of
looking to the interests of Lebanese as a whole.

The statements made by persons against Immam Taj are false
and known to be false to your own Officers. Lebanese
Moslems Association has never been on the offensive but in
this matter it has been clearly offended against, by
persons with known Lebanese political affiliations which
should have made them suspect to you."

45. As is apparent from the matters to which I have just referred it seems clear enough that the appellant, at an earlier point, was minded to seek to use the services of the Grand Mufti as an aid towards resolving one potential difficulty, namely the need to find a replacement for the third respondent. I am not satisfied, however, that at the time of the relevant decisions the appellant remained so minded. Paragraph 16 of Mr McKinnon's submissions to him, which he adopted, did no more than note that:-

"26. Refusal of resident status to the Applicant and his
departure from Australia will create the necessity to fill
the position he presently occupies. It could take some
considerable time to find a suitable replacement and the
community could be without a religious leader."

and (perhaps in consequence of receipt of the first respondent's letter of 28th November 1985) the attraction of the use of the Grand Mufti appeared to have disappeared.

46. I would thus not be prepared to find that the decisions in question were made with the intention, if intention be relevant, of prohibiting the free exercise of religion. Nor, if design be relevant, would I be prepared to find that the decisions made were designed to prohibit the free exercise of their religion by the members of the first respondent and others. I have referred to the concepts conveyed by the notion of "intended" and "designed" in the light of the use of those terms by Barwick C.J. in Attorney-General for Victoria (Ex rel. Black) v. The Commonwealth (supra) at 583 as synonyms for the word "for" used in s.116. See also the observations of Wilson J. in the same case at 653 where he said that the words "for establishing" in s.116 speak "of the purpose of the law in terms of the end to be achieved". I would not be prepared to find that, applying his Honour's dictum to a case of administrative action, the appellant had any purpose of achieving the end of prohibiting the free exercise of their religion by members of the first respondent and others. On the other hand in the same case as apparent synonyms for "for" in s.116 Gibbs J. (at 604) refers to "purpose or effect", and Mason J. (at 615) refers to "purpose or result". Assuming that the "purpose" of such a law is to be gathered from its "effect" or the "result" which it achieves, and that if the law has the effect proscribed by s.116, it would be impossible to deny that the "purpose" of it was otherwise (i.e. to say that it was not a law "for prohibiting the free exercise of any religion"), it is necessary to see what effect the decisions in question have in this case.

47. There was evidence, which was unchallenged, that the removal of the third respondent from office as Imam, which would be a consequence of being required to leave Australia, would interfere with the worship of the members of the first respondent. As Mr Saleem, the Administrative Officer of the Australian Federation of Islamic Councils, said in his affidavit:-

"14. Should the Imam Taj-El-Din find it necessary to
leave Australia he would be greatly missed by the
Lakemba Muslims who would greatly miss his
leadership at prayers. He would also be missed by
the unifying body of Islam of which I am the
Administrative Officer. I would expect that as a
reaction to their sense of loss significant part of
the Muslim Community would cease attendance at
prayers at the Mosque.

15. As a practical matter the following of the Muslim
religion requires an Imam who commands the respect
of the community. The maintenance of that respect
is essential to the continuity of his ministering of
his congregation. The extent of his care and
services to that congregation would enhance and
further bond the community to him by reason of their
respect for his devotion and services.

16. It would be difficult to say what would happen if
Sheikh Taj-El-Din should be compelled to leave. One
thing which is certain is that persons would not
cease to be Muslims nor cease their duty to pray for
as between God and themselves their prayers would be
no less valid. However his departure will cause
trauma and disruption in the Lebanese Muslim
community

17. Further to the last paragraph the Muslim faith is
not limited to prayers. It is a way of life which
teaches peace and co-operation with neighbours.
Their worship would be interfered with and they
would feel it as such and the general community
spirit which a Mosque is intended to create would be
seriously destroyed.

18. The work of Sheikh Taj-El-Din Al-Hilaly has not been
confined to the leadership of prayers in the Mosque
but he has been concerned with wider issues such as
the building of bridges between sects of Islam and
between Islam and Christianity."

48. Accepting, however, that there will be some disruption of worship occasioned by the decisions in question it does not seem to me that there is in terms of s.116 any prohibition of the free exercise of religion. S.116 states in my view not merely the broad proposition that no religion shall be established, but also that no religion shall be prohibited. The term "prohibiting" in s.116 means what it says and appears to me to mean a proscription of the right to exercise without impediment by or under Commonwealth laws any religion which is the choice of the person in question. The Migration Act itself contains no such proscription. Nor in my view is it possible to regard the refusal of the appellant to permit a particular person who is a minister of a religion to remain in Australia a prohibition of the free exercise of that religion. It may be that circumstances such as repeatedly refusing to allow any overseas ministers of a religion to enter or remain in Australia might in a different case amount to such a prohibition, but this is not the position here.

49. In my view the appeal should be allowed, the judgment of the primary Judge set aside and the application to the Court dismissed.