Mokhtar Abdel Gawad Wasfi v Commonwealth of Australia & Anor [1998] FCA 639 (5 June 1998)

Last Updated: 12 June 1998

FEDERAL COURT OF AUSTRALIA

MIGRATION - applicant who held permanent resident status fled Australia to Spain while on bail to avoid trial for criminal offences - permanent resident status lost on leaving Australia - applicant extradited to Australia from Spain to be tried for criminal offences - Criminal Justice Entry Certificate and Criminal Justice Entry Visa issued to authorise entry to Australia - Minister's decision to cancel certificate on completion of applicant's imprisonment resulting in cancellation of visa - whether long term permanent resident who left Australia is an alien liable to deportation - whether detention under the power to detain pending deportation is unlawful where deportation date uncertain.

ADMINISTRATIVE LAW - applicant's right to apply for Resident Return Visa expired while in jail in Spain - failure of Australian officials to advise applicant of time limit on application - whether breach of duty - whether founds an estoppel - Minister's decision to cancel Criminal Justice Certificate resulting in cancellation of Criminal Justice Visa - whether cancellation of visa valid - whether natural justice applies to Minister's decision - whether applicant should first be given a hearing - content of natural justice where giving notice may defeat purpose of the statutory power - whether Court has discretion to refuse relief when no different outcome would be possible had a hearing been granted.

NEGLIGENCE - whether failure of Australian government officials to advise applicant of time limit on application for Resident Return Visa is a breach of duty of care - discussion of factors giving rise to duty of care.

Migration Act 1958 (Cth) ss 142, 145, 153(1), 162, 162(1), 164, 189, 196(1)

Extradition Act 1988 (Cth)

Nolan v Minister of State for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 applied

Lim v The Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 cited

Pyrenees Shire Council v Day (1998) 72 ALJR 152 discussed and applied

Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204; (1995) 57 FCR 98 applied

Nguyen v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1996) 68 FCR 463 cited

Grech v Featherstone (1991) 33 FCR 63 considered and distinguished

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 cited

Santa Sabina College v Minister for Education (1985) 58 ALR 527 cited

Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board (1994) 111 DLR (4th) 1 applied

Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation [1990] FCA 139; (1990) 96 ALR 153 referred to

Hunter Resources Limited v Melville [1988] HCA 5; (1988) 164 CLR 234 applied

MOKHTAR ABDEL GAWAD WASFI v THE COMMONWEALTH OF AUSTRALIA and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 77 of 1998

JUDGE: MERKEL J

PLACE: MELBOURNE

DATE 5 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 77 of 1998

BETWEEN:	MOKHTAR ABDEL GAWAD WASFI aPPlicant
AND:	THE COMMONWEALTH OF AUSTRALIA AND THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENTS
JUDGE:	MERKEL j
DATE OF ORDER:	5 june 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The proceeding be dismissed.

2. The applicant pay the respondents' costs of and incidental to the proceeding including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	vg 77 of 1998

BETWEEN:	MOKHTAR ABDEL GAWAD WASFI APPLICANT
AND:	THE COMMONWEALTH OF AUSTRALIA AND THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS respondents

JUDGE:	MERKEL j
DATE:	5 JUNE 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

The applicant has been held in detention since 10 November 1997 pursuant to s 189 of the Migration Act 1958 (Cth) ("the Act") on the ground that he is an unlawful non-citizen. On 29 December 1997 he issued a proceeding in the High Court of Australia challenging the legality of his detention. On 19 February 1998 the High Court remitted the proceeding to be heard and determined in the Federal Court of Australia. The proceeding came on for final hearing on 16, 17 and 20 April 1998.

The applicant contends that his detention is unlawful on several grounds. The grounds include that:

* he is not an alien and therefore not subject to the Act;

* he is entitled to be treated as a permanent resident and is therefore entitled to a permanent resident visa;

* the processes by which he was deprived of such a visa were unlawful.

The applicant seeks declaratory and injunctive relief as well as damages on the ground that his detention since 10 November 1997 has been unlawful.

Background

The applicant was born in Egypt on 14 April 1957. Both his parents were Egyptian nationals. His father and mother separated but his father later remarried. On 27 June 1970 the applicant's father, step-mother, two sisters, two brothers and the applicant arrived in Australia and were granted permanent resident permits.

The Victoria Police criminal history sheet in respect of the applicant extends over four pages. It commences with the prescient entry made on 16 November 1971 that the applicant, who was then fourteen years of age, was "[l]ikely to lapse into a career of crime". Since 1971 the applicant has, on numerous occasions, been convicted of offences which usually involved theft and dishonesty. By 1973 when the other members of the applicant's family became Australian citizens the applicant had become estranged from his family. During the early 1980s the applicant applied for Australian citizenship on several occasions but, as a result of his criminal record, his applications were not granted. Consequently, the applicant never became an Australian citizen.

In February 1992 the applicant was arraigned in New South Wales to stand trial on 20 June 1992 for certain fraud offences. On 19 June 1992, whilst on bail and in order to avoid his trial, the applicant fled Australia and travelled to Spain on a false Australian passport. It was not long before the applicant continued his criminal career in Spain. As a consequence he was arrested, convicted and sentenced to a term of imprisonment for offences committed whilst in Spain. He began his term of imprisonment of three years and three months on 7 August 1992.

After the Australian authorities became aware of the applicant's presence in Spain a request was made for his extradition to Australia. On 25 May 1993 the Spanish Council of Ministers agreed to surrender the applicant to Australia pursuant to Australia's request for the applicant's extradition after the completion of the applicant's imprisonment for the offences committed in Spain.

Initially the applicant contested the extradition proceedings but eventually co-operated with the Australian authorities to enable his extradition. He was represented by a lawyer in Spain. It appears that under the Act the applicant lost his permanent resident status when he departed Australia without a Resident Return Visa: see s 49 of the Act at the relevant time. Under the Migration (1993) Regulations the applicant was entitled to apply for a Resident Return Visa and Entry Permit which would have enabled the reinstatement of his permanent resident status if he satisfied the criteria for that visa. One of the criteria was that the applicant was an Australian permanent resident for at least one year but no more than two years during the period of three years immediately before the application was made. As a consequence of that provision by 20 June 1994 the applicant's entitlement to apply for a Resident Return Visa had expired. Thereafter he was no longer eligible for a Resident Return Visa since he had not resided in Australia for two of the last three years.

On 20 July 1994 the applicant completed his Spanish prison sentence. He was then detained in Spain awaiting extradition which finally occurred on 18 September 1994. In the meantime the Australian government authorities had determined that it was appropriate to issue a Criminal Justice Entry Certificate pursuant to s 145 of the Act to enable the applicant's return to Australia to be tried in relation to the outstanding fraud charges in New South Wales.

On 8 September 1994 a certificate was issued pursuant to s 145 to the effect that, as the temporary presence of the applicant in Australia was required for the purposes of the Extradition Act 1988 (Cth), his presence was required for "the administration of criminal justice". On 9 September 1994 a Criminal Justice Entry Visa was granted pursuant to ss 155 and 159(2) of the Act. Consequently the applicant was able lawfully to enter Australia as a non-citizen on 20 September 1994.

On 27 March 1995 the applicant was sentenced to five years jail by the District Court in New South Wales. On 22 April 1995 the applicant was sentenced to a further nine months imprisonment by the same Court. On 13 September 1996 the applicant was sentenced to imprisonment for a period of three years with a fourteen month non-parole period in the County Court in Victoria for other offences. After the applicant had completed his punishment by way of imprisonment in New South Wales he was transferred to Victoria to serve his Victorian imprisonment. The applicant was due to be released from imprisonment on parole in Victoria on 10 November 1997.

As the applicant was about to complete his term of imprisonment the view was formed in the Attorney-General's department that his presence in Australia was no longer required for the purposes for which the Criminal Justice Entry Certificate was given. Accordingly, on 7 November 1997 a decision was made to cancel the Criminal Justice Entry Certificate. As it was believed that there was a defect in the procedures relating to the cancellation of that certificate, a further decision was made on 12 November 1997 to cancel the Criminal Justice Entry Certificate.

Section 162 of the Act provides that before cancelling a Criminal Justice Certificate the Secretary is to be informed by the Attorney-General or an authorised official as to when the certificate is to be cancelled, the expected whereabouts of the non-citizen when it is cancelled and the arrangements for the non-citizen's departure from Australia. In order to meet the requirements of the section, by letter dated 12 November 1997, the Secretary was informed that:

* the date of the intended cancellation was 12 November 1997;

* the expected whereabouts of the applicant at the time of the cancellation was the Immigration Detention Centre in Melbourne;

* the only arrangements made for the departure of the applicant were that travel documents were being sought "at which time the necessary arrangements will be made for [the applicant's] departure from Australia".

Upon the cancellation of the Criminal Justice Certificate the Criminal Justice Entry Visa granted to the applicant to enter and remain in Australia was cancelled pursuant to 164 of the Act. Accordingly as from the date of the cancellation of the certificate, being 12 November 1997, the applicant became an unlawful non-citizen and was required to be detained as such pursuant to s 189. As the applicant has no current passport or other travel documents there is some difficulty in removing or deporting him from Australia. However, notwithstanding his refusal to apply for an Egyptian passport it appears that the Egyptian authorities recognise him as an Egyptian national and, at the time of the hearing in the Court, it was expected that the requisite travel documents will be available in the near future.

The primary issue arising in the proceeding is whether the applicant is an unlawful non-citizen.

Legislative Framework

At the time the Criminal Justice Entry Certificate was granted s 145 of the Act provided:

"If the Attorney-General considers that:

(a) the temporary presence in Australia of a non-citizen who is outside Australia is required for the purposes of:

(i) the Extradition Act 1988; or

(ii) the Mutual Assistance in Criminal Matters Act 1987; or

(iii) the administration of criminal justice in relation to an offence against a law of the Commonwealth; and

(b) the presence of the non-citizen in Australia for the relevant purposes would not hinder the national interest in any way to such an extent that the non-citizen should not be present in Australia; and

(c) satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for the relevant purposes or the non-citizen or both will meet the cost of bringing the non-citizen to, keeping the non-citizen in, and removing the non-citizen from, Australia;

the Attorney-General may give a certificate that the presence of the non-citizen in Australia is required for the administration of criminal justice."

The "administration of criminal justice" was (and still is) defined in s 142 to mean:

"(a) an investigation to find out whether an offence has been committed; or

(b) the prosecution of a person for an offence; or

(c) the punishment by way of imprisonment of a person for the commission of an offence;".

When a Criminal Justice Entry Certificate is in force the Minister may issue a Criminal Justice Entry Visa provided that the other criteria set out in s 158(b) are satisfied. When a Criminal Justice Entry Visa is granted it constitutes permission for the non-citizen to "travel to and enter and remain in Australia while it is in effect": see s 161(1). Section 162 provides:

"(1) If the presence in Australia of a non-citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given, then:

(a) if it was given under section 145 or 147, the Attorney-General;

(b) if it was given under section 146 or 148 - an authorised official;

is to cancel it.

(2) Before cancelling the certificate, the Attorney-General or authorised official is, an adequate time before doing so, to tell the Secretary:

(a) when it is to be cancelled; and

(b) the expected whereabouts of the non-citizen when it is cancelled; and

(c) the arrangements for the non-citizen's departure from Australia."

Section 164 provides:

"If:

(a) a criminal justice certificate is cancelled;

(b) ...

any criminal justice visa granted because of the certificate or warrant is cancelled and the Minister is to make a record of the cancellation."

The purpose for obtaining the Criminal Justice Certificate in respect of the applicant was the prosecution of the applicant for the offences in respect of which he was extradited to Australia and, if convicted, any punishment by way of imprisonment for the commission of those offences. Consequently in the present case, when the applicant's prosecutions were completed and the terms of imprisonment served, the purpose for which the Criminal Justice Certificate had been given was exhausted. When the applicant is no longer required in Australia for the purposes of the certificate given by the Attorney-General under s 145, the Attorney-General "is to cancel it" (s 162(1)). Upon cancellation of the certificate the Criminal Justice Visa granted because of the certificate "is cancelled" (s 164).

A decision made under s 162(1) to cancel a certificate is not a discretionary decision. In the present case the sole criterion for the decision to cancel the Criminal Justice Certificate granted in respect of the applicant was whether the applicant's punishment by way of imprisonment had been completed because, when it had been completed, the applicant's presence could no longer be required for the purpose of the certificate. However, in other cases the question of whether a person's presence is no longer required for the purpose for which a Criminal Justice Certificate was given might involve a judgment based on evaluation and weighing up of facts and circumstances: see ss 145, 146, 147, 148 and 162.

The applicant was a non-citizen. Accordingly, upon the cancellation of his Criminal Justice Visa he became an unlawful non-citizen: see ss 14 and 15. Section 189 provides that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen the officer must detain the person. Under s 196(1) an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed from Australia under ss 198 or 199, deported under s 200 or granted a visa. It is unnecessary for present purposes to set out the detail of ss 198, 199 and 200. It is sufficient to say that in any case where a visa is not applied for, or able to be applied for, the sole purpose of a detention under s 189 is to hold the detainee in detention until the detainee's removal or deportation as soon "as reasonably practicable". As there appears to be no visa to which the applicant is entitled under the Act his detention is for the purpose of his removal or deportation from Australia under s 198, s 199 or s 200. Insofar as the removal or deportation is inconsistent with parole conditions, or State or Federal legislation giving legal force to such conditions, s 153(1) relevantly provides for the provisions of the Act in relation to removal or deportation to override any inconsistent State or Federal statutory provisions.

The Issues

The applicant's case raises the following issues:

* whether the applicant was at all relevant times an alien and therefore subject to the detention, removal and deportation powers conferred under the Act;

* whether the respondents or their officers, servants or agents acted in breach of duty in failing to advise the applicant of his entitlement to apply for a Resident Return Visa, which entitlement would cease after 20 June 1994;

* whether the respondents were under a duty to accord procedural fairness or comply with the rules of natural justice in relation to the making of the decision to cancel the Criminal Justice Certificate and the Criminal Justice Visa;

* whether the cancellation of the Criminal Justice Certificate was invalid as the Attorney-General had failed to inform the Secretary of the matters set out in s 162(2) before cancelling the certificate;

* whether the detention of the applicant is not for the purposes of his removal or deportation but is indefinite and therefore invalid;

* whether the applicant is entitled to damages for unlawful detention.

Is the Applicant an Alien?

After the decision in Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101 the short title of the Act was amended by s 3 of the Migration Amendment Act 1983 (Cth) to read as follows:

"An act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons."

The amendment made it clear that the Act is primarily based upon the power of the Commonwealth parliament to make laws with respect to "aliens" under s 51(xix) of the Constitution.

The applicant contends that as a result of his absorption into the Australian community he is no longer an alien and therefore is no longer subject to the power conferred under the Act to deport or remove aliens from Australia. The applicant relies on his residence in Australia as a member of the Australian community pursuant to his permanent resident permit from 27 June 1970 to 19 June 1992 and his further stay in Australia after his extradition from 20 September 1994 to the present time. He contends that he is entitled to be treated as a permanent resident. He also relies on the fact that all of the other members of his family in Australia have been granted citizenship and that his applications for citizenship, whilst not granted, have not been refused.

It can now be taken to be accepted that the power conferred under the Act to deport or remove "aliens" rests on the meaning of that word as used in s 51(xix) of the Constitution: see Pochi v Macphee; Nolan v Minister of State for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 and Lim v The Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1. As was pointed out in the joint judgment of Brennan, Deane and Dawson JJ in Lim (at 25), in Nolan:

"...it was recognised that the effect of Australia's emergence as a fully independent sovereign nation with its own distinct citizenship was that the word 'alien' in s.51(xix) of the Constitution had become synonymous with `non citizen'."

In Nolan, the majority, in a joint judgment (at 183) said:

"As a matter of etymology, 'alien', from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person's lack of relationship with a country the word means, as a matter of ordinary language, 'nothing more than a citizen or subject of a foreign state': Milne v. Huber. Thus, an 'alien': has been said to be, for the purposes of United States law, 'one born out of the United States, who has not since been naturalised under the constitution and laws'. That definition should be expanded to include a person who has ceased to be a citizen by an act or process of denaturalization and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage. Otherwise, it constitutes an acceptable general definition of the word 'alien' when that word is used with respect to an independent country with its own distinct citizenship." (Footnotes omitted)

The applicant is not a citizen of Australia. He is a national of Egypt and is entitled to be treated as a citizen of that country. Further, I do not accept that the applicant can be treated as if he has an entitlement to permanent resident status in Australia. As pointed out above the applicant lost his permanent resident status when he departed from Australia on 19 June 1992. By 20 June 1994 he lost any entitlement to apply for a Resident Return Visa which could have led to the re-instatement of his permanent resident status. The applicant's flight from Australia, as far as he was concerned, was clearly not intended to be a temporary one as the sole purpose for it was to remain outside the reach of Australian government authorities and thereby avoid the further prosecution of the outstanding criminal charges he was facing. In these circumstances it is difficult to accept that there is any factual or legal basis for the applicant's contention that he is not an alien.

Gaudron J, who dissented in Nolan, proffered a wider approach to the definition of an alien. Her Honour said (at 189):

"An alien (from the Latin alienus - belonging to another) is, in essence, a person who is not a member of the community which constitutes the body politic of the nation state from whose perspective the question of alien status is to be determined. For most purposes it is convenient to identify an alien by reference to the want or absence of the criterion which determines membership of that community. Thus, where membership of a community depends on citizenship, alien status corresponds with non-citizenship; in the case of a community whose membership is conditional upon allegiance to a monarch, the status of alien corresponds with the absence of that allegiance. At least this is so where the criterion for membership of the community remains constant.

There is no specific criterion identified for membership of the community constituting the Australian body politic."

However, even on her Honour's approach the applicant would fail as, in my view, since his departure from Australia on 19 June 1992 and the loss of any entitlement to be a permanent resident of Australia after 20 June 1994 there is simply no basis for the contention that the applicant thereafter continued to be "a member of the community which constitutes the body politic" of Australia.

Accordingly, the applicant's case on this ground must fail.

Breach of Duty?

The applicant contended that the failure of Australian government authorities handling his case to inform him that unless he applied for a Resident Return Visa prior to 20 June 1994 he would lose any entitlement to regain his lost permanent resident status constituted a breach of the duty owed to him by those authorities. As a consequence, it was contended that he was entitled to relief on the basis of negligence and misfeasance in public office. Although the applicant tendered a great deal of documentary evidence in relation to the state of awareness of various Australian government authorities of the applicant's status at various times there is nothing in that documentation that establishes that any Australian government official:

* assumed the role or undertook the function of advising the applicant in any way as to his status or as to his rights under the Act;

* was requested by the applicant for advice or information as to his rights under the Act or gave any such advice;

* intentionally concealed from the applicant any rights he may have had under the Act and in particular, his right to apply for a Resident Return Visa prior to 20 June 1994.

Each of the applicant's causes of action must rely upon the omission of the relevant government authorities to give him advice as to his entitlement under the Act to a Resident Return Visa prior to 20 June 1994, as a breach of a legal or equitable duty owed to him by the Commonwealth or its officers. As pointed out above, the applicant was represented by a lawyer in Spain and at no time did he or his lawyer seek or request advice as to his status or rights under the Act from any Australian government officials. There is no evidence upon which I would conclude that the applicant was relying upon any of the authorities for such advice. The documents disclose that there was a considerable period of doubt on the part of the relevant Australian authorities, initially as to the applicant's true identity and then as to his legal status. After the applicant's identity and legal status were eventually determined the sole concern of the authorities was to ensure the applicant's extradition to and lawful entry into Australia. The authorities were not concerned with the steps that the applicant may wish to take in his own interest in respect of his legal status.

The applicant could not point to any provision in the Act which imposed a duty on migration or other Australian government officers to take positive steps to inform the applicant of his rights under the Act or the Migration Regulations. The indicia that are relevant to whether a special relationship of proximity exists between an applicant and government or public authorities which could render their failure to act a breach of duty are discussed in Pyrenees Shire Council v Day (1998) 72 ALJR 152. The indicia discussed include:

* reliance of the applicant in the particular circumstances on the alleged tortfeasor (see Toohey J at 167, McHugh J at 173 and Kirby J at 201);

* vulnerability of an applicant to the alleged tortfeasor in the particular circumstances of the case (see Kirby J at 202);

* a measure of control by the alleged tort feasor over particular circumstances which have a propensity to cause or prevent harm to the applicant (see McHugh J at 172 and Gummow J at 184);

* the capacity to exercise relevant powers to require conduct which would prevent harm to the applicant (see Kirby J at 202).

In my view the facts of the present case fall short of any of the above indicia.

I am satisfied that no relevant statutory, common law or equitable duty was owed by any Australian government officer to advise the applicant as to his entitlement to apply for a Resident Return Visa and thereby reinstate his permanent resident status prior to 20 June 1994. In my view the necessary factual and legal foundation for the applicant's contentions are absent in the present case. In these circumstances the applicant's causes of action insofar as they are founded on breach of duty must fail.

In respect of the submissions as to estoppel, there is no representation nor any reliance by the applicant on a representation on which an estoppel can be founded. The omission to advise, in the circumstances set out above, does not constitute a representation.

In any event a breach of duty or an estoppel is of little avail to the applicant in relation to his claims under the Act that the respondents are not entitled to deport or remove him. The reason for that is that a breach of duty cannot confer upon the applicant a right to an entry permit or visa other than in accordance with the statutory provisions relating to those permits or visas under the Act or the Migration Regulations. Thus a breach of duty cannot confer upon the applicant a right to a visa or permit to remain in Australia which is not provided for under the Act or the Regulations. Further, it has been long accepted that the doctrine of estoppel cannot be relied upon by a court so as to relieve against non compliance with a requirement that the statute intends be satisfied: see Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 46 FCR 117 at 124-5 per Davies and Gummow JJ; Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204; (1995) 57 FCR 98 at 104-107 per Davies and Branson JJ and at 111 per Whitlam J; Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 210-214 per Gummow J and Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 at 308-9 per Burchett J; cf Tamberlin J at 327-8. Accordingly, the causes of action of the applicant based upon a breach of duty and estoppel must fail.

Breach of the Rules of Natural Justice

In Nguyen v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1996) 68 FCR 463 at 473-5, I discussed the principles which determine whether the rules of natural justice are to apply to the making of decisions under the Act. I said:

"Since Kioa v West [1985] HCA 81; (1985) 159 CLR 550, it has been accepted that, in general, the rules of natural justice or procedural fairness apply in relation to the making of decisions under the Act in relation to particular individuals, subject to any legislative provision or intention to exclude those rules.

Indeed, the ambit of the duty to comply with the rules has expanded significantly since Kioa: see Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 and Johns v Australian Securities Commission (1993) 178 CLR 408. In Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576, Mason CJ, Dawson, Toohey and Gaudron JJ described the duty as follows:

`It is now clear that a duty of procedural fairness arises, if at all because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations" [Annetts v McCann at 598, per Mason CJ, Deane and McHugh JJ]. Thus, what is decisive is the nature of the power, not the character of the proceedings which attends its exercise. That is not to deny that provision may be made permitting or requiring procedures which are wholly inconsistent with a requirement of procedural fairness.'"

It was submitted on behalf of the respondents that in the present case the only decision made under the Act was a decision by the Attorney-General to cancel the Criminal Justice Certificate. It was then said that that decision did not destroy, defeat or prejudice any right, interest or legitimate expectation of the applicant as all it did was to cancel a certificate granted previously in respect of the applicant as a precondition to the grant of his Criminal Justice Entry Visa.

In my view the submission takes too narrow a view of the statutory scheme. An automatic consequence of the cancellation of the certificate is the cancellation of the Criminal Justice Visa granted because of the certificate: see s 164(a). As a consequence of the cancellation of the visa the applicant became an unlawful non-citizen who was required to be detained under s 189. Consequently the decision in question had the effect of changing the applicant's legal status from a lawful non-citizen not subject to detention to an unlawful non-citizen required to be detained until his deportation or removal from Australia, there being no visa to which he was entitled under the Act. Plainly the power conferred on the Attorney-General under s 162(1) to cancel a Criminal Justice Certificate is one which may destroy, defeat or prejudice a person's legal status. Accordingly, unless there is an exclusion of the rules of natural justice, the Attorney-General was bound to comply with those rules when exercising the cancellation power under s 162(1).

The respondents, in support of their contention that there was an implied exclusion of the rules of natural justice, sought to rely upon authorities where the rules of natural justice have been said not to apply to a decision to consent to or permit the bringing of a prosecution: see Murchison v Keating (No 2) [1984] FCA 162; (1984) 54 ALR 386 at 395 and Buffier v Bowen (1988) 32 A Crim R 222 at 229. In my view these decisions go to a different point. They relate to whether or not the decisions in question satisfy the test in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 rather than whether there is an intention, to be gleaned from the relevant statutory provisions, to exclude the rules of natural justice. The respondent also relied upon Grech v Featherstone (1991) 33 FCR 63 at 67 where Heerey J said that in his view any recognisable form of natural justice is totally inconsistent with a statutory power of arrest. His Honour said:

"No authority was cited to me in which such a power had been held to attract the rules of natural justice. This is hardly surprising. The whole point of arrest is that the person arrested is brought within the judicial system, there to be dealt with according to law. Statute and common law will then ensure the determination of the person's liberty by an impartial court with the arrested person being given the right to be heard."

In my view the power to arrest discussed by his Honour is not analogous to the power under s 162(1). A cancellation of a Criminal Justice Certificate under s 162 is a final determination. Unlike a power of arrest it is not a power conferred for the purpose of bringing a person within the judicial system for the determination of that person's rights.

In any event the critical issue is whether one can discern from the relevant statutory provisions an intention to exclude the rules of natural justice. Recent decisions have established that the intention to exclude the rules of natural justice requires "plain words of necessary intendment": see Annetts at 598. Such an intention is not to be gleaned from "indirect references, uncertain inferences or equivocal considerations": see Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 396 and Johns v Australian Securities Commission (1993) 178 CLR 408 at 470.

Section 162 confers a non-discretionary power of cancellation based upon the determination that a person's presence in Australia is no longer required for the purpose for which a Criminal Justice Certificate was given. As pointed out above in some cases a decision under the section can require an evaluation and weighing up of facts and circumstances. In such cases views may differ as to whether the criteria necessary for the exercise of the power have been satisfied. Whilst there may be little room for doubt on that issue in the present case, that is not necessarily so in other cases. Although the power conferred under the section is not discretionary and the matters which may be put forward by a person who is intended to be the subject of the power against its exercise may be limited, there are matters which a person, whose rights or interests might be prejudiced by the exercise of the power, might legitimately wish to put forward in order to contend that the power ought not to be exercised. Accordingly, there is nothing implicit in the nature of the decision to be made or the subject matter with which it is concerned that leads to the conclusion that it would be futile or pointless to afford a person, whose rights or interest might be affected by the decision, an opportunity to be heard in relation to it. I would add that a court should exercise considerable caution before concluding that the subject matter of a decision is such that it would be futile or pointless to afford the person who will be affected by it an opportunity to be heard. As was so graphically pointed out by Megarry J in John v Rees [1970] Ch 345 at 402:

"It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. `When something is obvious', they may say, `why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."

An intention to exclude the rules of natural justice may arise in a situation where compliance with the rules of natural justice in respect of a decision under a statute will necessarily frustrate or be inconsistent with the exercise of the power. Affording a person an opportunity to be heard before a decision to install a telephone intercept or a listening device under State or Federal legislation for criminal investigatory purposes is an obvious example.

In the present case the respondents contended that prior notification of a decision under s 162 could defeat the purpose of cancellation of the Criminal Justice Certificate if the non-citizen the subject of the certificate is likely to flee upon hearing of the intention to make the decision. However, while the risk of flight is clearly a relevant factor such a risk need not necessarily arise in all cases. The present case affords one example of why that is so. The applicant was in prison when the first decision under s 162(1) was made. Clearly he was unable to take flight upon being notified of an intention to make a decision under s 162(1). Also there may be many cases where a person is eager to return to his or her home country when the administration of criminal justice in a particular case or investigation is completed. There may be other cases where a person is entitled to another visa under the Act or Regulations with the consequence that there is no reason to expect that person to go into hiding. In such circumstances, the preferable approach is to regard the risk of flight in a particular case as material to the scope and content of the rules of natural justice in that case rather than to whether they are excluded by "plain words of necessary intendment" under the statute. As was said by McHugh J in Johns at 471:

"Where a person is to be afforded the benefit of procedural fairness, the scope of that benefit depends upon the circumstances of each case. In Kioa v. West, Mason J. said:

'What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting.'

This means that, where the exercise of a power may 'destroy, defeat or prejudice a person's rights, interest or legitimate expectations', that person must be afforded the procedural fairness that is appropriate in the circumstances." (Footnotes omitted)

Brennan J said at 431 in Johns that there may be some situations in which natural justice would not require prior notice to be given of a decision. The instance given by his Honour was where, in the particular case, giving notice might frustrate the object or purpose for conferring the power to make the decision. The need for urgent action in the public interest is another circumstance which has been relied upon to greatly limit the content of the rule: see Judicial Review of Administrative Action (1996, M Aronson and B Dyer) at 461-2.

Accordingly, for the above reasons, I am satisfied that:

* s 162(1) confers power upon a public official to make a decision that might prejudice a person's right or interest namely, the person's legal status for the purposes of the Act;

* there are no "plain words of necessary intendment" which exclude the rules of natural justice in relation to the exercise of power under s 162(1);

* the Attorney-General was bound to comply with the rules of natural justice when making his decision under s 162(1) on 12 November 1997.

The critical question relates to the scope or content of the rules in the present case. At the date of the decision relied upon by the respondents being 12 November 1997 the applicant, who had family in, and close personal ties with, Australia, had:

* been released on parole;

* an extensive criminal record involving dishonesty;

* previously breached his bail conditions by fleeing to Spain to avoid arrest, prosecution and punishment in Australia.

In these circumstances I accept that if the applicant was given notice of the Attorney-General's intention to make a decision cancelling the Criminal Justice Certificate there was a real risk that he might go into hiding in an endeavour to avoid deportation or removal from Australia. The real risk of flight was such that the giving of prior notice in relation to a decision under s 162(1), and affording the applicant an opportunity to be heard prior to making it, might frustrate the object or purpose of conferring the power to make the decision in this case. That object or purpose was to bring to an end the applicant's "temporary presence" in Australia for the administration of criminal justice by his deportation or removal from Australia: see ss 145, 162(1), 164, 189(1) and 196(1).

For these reasons I am satisfied that in the special circumstances of the present case the rules of natural justice did not require the Attorney-General to give to the applicant prior notice of his intention to make a decision under s 162(1) or to afford the applicant an opportunity to be heard in respect of that decision. Accordingly, there was no breach of the rules of natural justice.

If I am incorrect in my conclusion that there has been no breach of the rules of natural justice then the applicant's claim on that ground would fail in any event on the basis that the same decision was required in law to have been made. Put another way, there was no basis in law or in fact on which the applicant could have contended, or upon which the Attorney-General could determine, that the applicant's presence was required for the "administration of criminal justice" after he completed his punishment by way of imprisonment. The fact that the applicant was on parole was not relevant: see Gray v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 500; (1992) 115 ALR 144 at 146, nor was the fact that the deportation or removal from Australia might breach the applicant's parole conditions or be inconsistent with provisions of the Corrections Act 1986 (Vic) which provide for parole: see s 153(1) of the Act. In the circumstances of the present case the Attorney-General was bound to cancel the certificate under s 162(1).

In Nguyen (No 2) at 476-479 I considered a submission on behalf of the Minister for Immigration that, notwithstanding any denial of natural justice, the same decision would have been made in any event or, put another way, that notice and an opportunity to be heard would have made no difference to the result. The Minister had submitted that any requirement of natural justice or procedural fairness in such a situation is futile as no prejudice is suffered. I referred to instances where the courts had denied relief on the ground that the outcome would have been no different if a fair hearing had been given: see Glynn v Keele University [1971] 1 WLR 487; Malloch v Aberdeen Corporation [1971] 1 WLR 1578; Cinnamond v British Airports Authority [1980] 1 WLR 582 and R v Chief Constable of Thames Valley Police; Ex parte Cotton [1990] IRLR 64. However I expressed the view (at 477) that such decisions ought to be explained either as part of a consideration that the requirements for procedural fairness have not been infringed or as arising from the court's discretion to refuse the grant of relief. I concluded that the preferable basis for dealing with a finding of "inevitability of outcome" in a particular case was for the court to refuse to grant relief as it is futile to do so.

An appeal court may determine not to set aside and remit a decision at first instance made in breach of the rules of natural justice if it is futile to do so: see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145-146 and Giretti v Commissioner of Taxation (1996) 70 FCR 151. It is difficult to conceive of circumstances where any discretion to refuse relief on grounds of a breach of the rules of natural justice would be exercised if it is "possible" that the end result might not be the same: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540 per Beaumont J. However, if it is established that an applicant was not deprived of the possibility of avoiding the making of the decision by a denial of natural justice then there is no reason in principle why the discretion to refuse relief exercised in Stead and re-affirmed in Giretti should not be applicable to administrative decisions.

Whether there is such a discretion has been a matter of some contention: see Aronson and Dyer at 489. However relief on this ground has been refused as a matter of discretion in respect of administrative decisions: see Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board (1994) 111 DLR (4th) 1 at 18-19. In Mobil, in the judgment of the Supreme Court of Canada delivered by Iacobucci J, the Court declined to grant relief in response to a breach of the rules of natural justice by an administrative body on the ground that the body would be "bound in law" to arrive at the same decision and that the case that could be put for any other decision was "hopeless". The Court exercised its discretion to refuse relief on the principle stated at 19 that "[g]ood public administration is concerned with substance rather than form" and because the administrative body "would now reach" the same conclusion as had been arrived at previously.

There is generally a power to refuse relief in relation to a breach of the rules of natural justice on discretionary grounds. The discretion is expressly provided under s 481(1) of the Act and s 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth): see Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation [1990] FCA 139; (1990) 96 ALR 153 at 170-171 per Gummow J. It also arises under s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth): see Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 at 532-533 and in the exercise of the Court's power to refuse declaratory, injunctive or prerogative relief or orders. I say "generally" as there are some special instances under the general law where, for example, a prerogative writ is not discretionary and is issued as of right. One instance is where absence of jurisdiction in an inferior court is patent in that it appears on the face of the proceedings: see Mayor of London v Cox [1867] LR 2 HL 239 at 281 and Farquharson v Morgan [1894] 1 QB 552 at 557.

It is necessary to emphasise, as the Court did in Mobil at 19, the "exceptional character" of the discretion to refuse relief in respect of a decision made in breach of the rules of natural justice. However, it is appropriate to exercise the discretion if inevitability of the same outcome is clearly established.

For the reasons set out above I have concluded that the Attorney-General was "bound in law" to cancel the Criminal Justice Certificate under s 162(1) and accordingly, the applicant was not deprived of the possibility of avoiding the making of that decision by a denial of natural justice. It follows that if, contrary to my view, there was a failure to comply with the rules of natural justice that does not have the result that the applicant is entitled to any relief in respect of it.

For the above reasons the applicant's claim that the rules of natural justice have been breached has not been made out.

Was s 162(2) complied with?

Section 162(2)(c) provides that before cancelling a Criminal Justice Certificate the Attorney-General or authorised official is, an adequate time before doing so, to inform the Secretary of the arrangements for the non-citizen's departure from Australia. In the present case no specific arrangements for the applicant's departure had been made as the travel documents required for that departure were yet to be obtained. Accordingly, the Secretary was informed that the travel documents were being sought at which time the necessary arrangements would be made for the applicant's departure from Australia.

The applicant contended that the requirement in s 162(2)(c) is mandatory, the Attorney-General did not tell the Secretary the arrangements for the applicant's departure from Australia and consequently, the failure to comply with the mandatory requirement in the sub-section invalidated the cancellation decision.

In my view the contention is misconceived. The section requires that the Secretary be informed as to each of the subject matters set out in the sub-section to enable the Secretary to make appropriate arrangements for the purposes of the Act in relation to the person whose certificate is being cancelled. Accordingly, as long as information is given in relation to each of the subject matters dealt with, the section will have been complied with. Thus if, for example, where there is doubt as to when the certificate is to be cancelled, as to the expected whereabouts of the non-citizen when it is cancelled or as to the arrangements for the non-citizen's departure, provided that the information available is given in respect of each of those subject matters the section will have been complied with. Accordingly, the statement to the effect that "travel documents are being sought at which time the necessary arrangements will be made for the applicant's departure from Australia" is, in my view, information which complies with the s 162(2)(c). Accordingly, the Attorney-General told the Secretary of the arrangements being made for the applicant's departure from Australia.

In any event, having regard to the purpose of notification, non compliance with the section would not give rise to invalidity. Although there has been a great deal of contention about whether requirements such as those set out in s162(2) are mandatory or directory it is now established in Australia that the critical issue is whether the legislature intended invalidity to result from a breach of such provisions: see Hunter Resources Limited v Melville [1988] HCA 5; (1988) 164 CLR 234 at 241, 245, 248-9, 251 and 256-7 and Hamilton v Minister for Immigration and Ethnic Affairs [1994] FCA 1424; (1994) 53 FCR 349 at 358-61. No such intention can be gleaned from s 162(2) which, as pointed out above, is solely to facilitate arrangements for the non-citizen's departure from Australia. Of course it is important for the proper administration of the Act that the section be complied with. However, in the event the section is not complied with, invalidation of the decision to cancel the certificate is not one of the consequences of the failure to comply.

Unlawful Detention

The applicant contended that the detention of the applicant was unlawful as in the circumstances of the present case it was:

* unlimited detention; and

* inconsistent with the provisions of the Corrections Act 1986 (Vic) relating to parole and the conditions upon which the applicant was released on parole.

The legislative power conferred by s 51(xix) of the Constitution has been held to extend to conferring upon the Executive authority to detain an alien for the purpose of expulsion or deportation: see Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1. However, it was contended on behalf of the applicant that in the special circumstances of the present case the detention was unlimited and therefore was not for the purposes of deportation or removal as there was no arrangement in place for the applicant's deportation or removal. In my view it follows from the decision of the High Court in Lim that so long as the detention is for the purpose of deportation or removal under the Act then the detention is valid. It is said that as the applicant's detention is, in fact, indefinite it cannot be for those purposes. As a result of the lack of co-operation of the applicant in obtaining the necessary travel documents the Commonwealth's officers had to undertake time consuming endeavours to obtain those documents. It is common ground that those documents are now able to be obtained with the consequence that the deportation or removal of the applicant from Australia can take place in the near future. In these circumstances, there is no basis for the contention that, at the present time, the detention is indefinite and not for the purposes of the Act.

The second ground of suggested invalidity also fails. Section 153 of the Act relevantly provides that if the Act requires the deportation or removal of a non-citizen and there is no Criminal Justice Stay Certificate or Criminal Justice Stay Warrant in respect of the non-citizen:

"any other law, or anything done under any other law, of the Commonwealth or a State (whether passed or made before or after the commencement of this section), not being an Act passed after that commencement expressed to be exempt from this section, does not prevent the removal or deportation."

Accordingly, any inconsistency that might arise between the deportation or removal of the applicant from Australia and any provisions of the Corrections Act 1986 (Vic) or the conditions of his parole does not prevent his deportation or removal. Thus, the applicant's present detention for the purpose of his deportation or removal is not invalid.

Conclusion

For the reasons set out above the applicant's case has failed on each of the issues relied upon by the applicant for relief. Accordingly, there is no basis for the relief sought or for any claim or entitlement to damages on the ground of unlawful detention or otherwise. The proceeding must be dismissed with costs.

I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel

Associate:

Dated: 5 June 1998

Counsel for the Applicant:	Mr T Hurley
Solicitor for the Applicant:	Nevett Ford
Counsel for the Respondent:	Mr C Gunst QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16, 17 and 20 April 1998
Date of Judgment:	5 June 1998