Banu, H. & Anor v. The Honourable C.J. Hurford [1987] FCA 20

HUSSEINAH BANU, SIRAZUL ISLAM AND ABDUL RAHIM - - V -

iL. - Einfeld J. > => FEDERAL ccoo-7 co te Sydney . AUSTRALIA ed AD, Sal f A REG f

Applicant, Mohammed Sirazul Islam, arrived in Australia on 20 August

1985. Mr. Islam was given permission toa stay here for three months

whereas Ms Banu for some reason was granted a six months stay. The

expiry dates of their temporary entry permits were respectively 21

November 1985 and 20 February 1986. The third Applicant, Abdul Rahim (the son of Ms Banu by a previous marriage and the stepson, therefore, of Mr. Islam), arrived in Australia in February 1986 and was given a one month temporary entry permit expiring on 24 March 1986. On the respective expiry dates of the entry permits, all of these persons became prohibited immigrants pursuant to section 7(3) of the

Migration Act 1958 ("the Migration Act") and thus became liable to

deportation (section 18) in the unfettered discretion of the respondent Minister. Their continuing residence 1n Australia after the expiry dates of their temporary entry permits were offences under the Migration Act. Nonetheless, they did remain in Australia until they were arrested on 21 November 1986. During the intervening period they all apparently engaged in employment, contrary to the terms of their entry permits, and

thus committed further offences under the Migration Act (section 31B(1)).

Following their arrest for these offences on 21 November 1986, they were placed in custody at the Villawood Detention Centre. On 3 December 1986 (although the third Applicant's application appears to bear no date) they made applications to be granted what is known as the status of refugees. (Strictly, this is a reference to the power given to the Minister by section 6A(1)(c) of the Migration Act to grant permission to

non-citizens to stay in Australia after their entry by determining in

writing that they have the status of refugees as defined by the

International Convention on this subject or a lJlater Protocol to the

The consequence of their being granted refugee status would in normal circumstances entitle them to the grant of entry permits unlimited in time, amounting to a right of permanent residence in Australia, at any rate so long as their refugees status continued. The factual starting point of their applications for the status of refugees was that whereas Mr. Islam was a citizen of Bangladesh, Ms Banu and Mr. Rahim were citizens of Singapore. The Applicants claim on the one hand that Mr. Islam is not entitled to residency of Singapore despite his being married to a Singapore citizen. On the other hand, they say that whereas Ms Banu is apparently entitled to residency in Bangladesh as the wife of a citizen of that country, her son Mr. Rahim is not entitled to residency there on any basis. As the desire of the family to remain together is at least one, if not the principal, basis of their desire to stay in Australia, they claim as a consequence that there is no country other than Australia in which they can live as a family group. It should be noted that Mr. Rahim is now 23 years old and that on the meagre evidence available to me, the impediments to Mr. Islam's residency in Singapore are not absolute although there may be a delay of several

weeks or longer in his obtaining permission to reside there.

On 9 December 1986 a committee established in the Department of Immigration and Ethnic Affairs ("the Department") for the determination of refugee status applications, known as the DORS Committee, unanimously decided to recommend the refusal of their applications. These recommendations were accepted on 10 December by the Assistant Secretary

of the Refugees and Humanitarian Branch of the Department, apparently

acting under delegation from the Minister. I was informed, and it was not denied by the respondent Minister, that these decisions were made in an extremely brief period of time, compared with the usual period in which such applications are considered. However unusual that may be, it does not seem to be a good ground for relief here. It would he ironic

if it were otherwise, having in mind criticisms of bureaucratic delays

In the days following the arrest of the Applicants, applications were made to the Local Court at Fairfield to approve the continuing custody of the Applicants, so far as I can gather, because section 38{3A) of the Migration Act requires that such custody not extend beyond seven days without the consent of a prescribed authority such as a Court in the absence of the consent of the detainee. It appears that when the matter was before the Fairfield Local Court on 16 December 1986, the solicitor for the Applicants applied on their behalf for their temporary release pending what was described as "an appeal to the Minister" from the

decisions to refuse them refugee status. The applications for temporary

I pause to observe that the Migration Act makes no reference to an "appeal to the Minister" from accepted DORS Committee recommendations. Indeed it makes no mention of the DORS Committee at all, although the Minister has power under section 66D to delegate such matters. Subsection (3) of section 66D also provides that a delegation under

s.66D does not prevent the exercise of power by the Minister. Whether

because of section 66D(3) or because the terms of section 6A(1}(c) provide for the determination of refugee status to be made by the Minister by written instrument, or for some other reason of fairness or otherwise, I am informed that the current policy of the Department is to permit a so-called "appeal" to the Minister personally against accepted

In this case, the Applicants were advised that they were entitled to seek this Ministerial review. Their solicitor advised the Secretary of the DORS Committee that this entitlement would be exercised as soon as the Committee's reasons were available, and the Secretary undertook to provide the reasons. Presumably because it wished to take action to deport the Applicants promptly, the Enforcement Section of the Department asked that these reasons be prepared urgently, although neither the Applicants nor their solicitor appear to have known of this

intervention. Section 13(2) of the Administrative Decisions

(Judicial Review) Act 1977 ("the ADJR Act") requires that they be

supplied within 28 days of a written request (apparently first made on 17 December 1986) but by the conclusion of the hearing of this matter on

January 13 1987, the reasons had not yet been supplied.

The Department also advised the Applicants' solicitor on 12 December 1986 that deportation was then to be considered promptly but that permission to leave voluntarily would also be considered by the Department if desired by the Applicants. Nothing was said one way or the

other as to whether the deportation or voluntary departure decision

would be delayed pending the "appeal" to the Minister from the refugee status decision. The Applicants' solicitor should not have assumed, as he apparentiy did, that at least the procedures of deportation decision~ making would be permitted to await the Ministerial review. However, as a decision to deport would effectively render nugatory the entitlement to this review, it is understandable that he might have thought the former would only follow the latter in fact, and that further submissions would

have been permitted before the deportation orders were finally made.

The Applicants' solicitor then wrote two letters to the Department on 17 December 1986, one to an officer named Wilson in the Enforcement Section in Sydney, the second to the Assistant Director of the DORS Secretariat in Canberra. The second of these two letters was sent by facsimile. In the letter to Mr. Wilson, the Applicants' solicitor reported that the Department's representative at the Fairfield Local Court on the previous day (16 December) had advised the Court of the respondent Minister's intention to make a deportation order against the Applicants on 17 December. The Applicants' solicitor indicated that his clients wished to be heard on the issue as to whether a deportation order should be made and identified that there was 'pending' an "appeal to the Minister"

against the decision to accept the DORS Committee's recommendation that

In the letter sent by facsimile to Canberra, the solicitor requested a copy of the reasons for the DORS Committee's recommendation, asked for

an explanation as to 'the unseemly haste' adopted by the DORS Committee

in this case, and formally "appealed" to the Minister to review the decisions. He said that he would supply detailed grounds of appeal and other supporting materials after the DORS Committee's reasons had heen received and an explanation had been given as to the speed with which

the applications had been processed and determined.

No reply ever seems to have been sent by the Department to this letter to Canberra, but in reply to the letter of 17 December to the Enforcement Section in Sydney, Mr. Wiison on 18 December indicated that pursuant to the provisions of section 38 of the Migration Act, he would be putting the issue of the deportation of the Applicants to the Minister's delegate in Canberra on 22 December 1986. Acknowledging the Applicants' solicitor's request to be permitted to put submissions in

relation to the deportation, he placed a time limit of 12 noon on that

I am advised that Mr. Wilson's letter of 18 December was received by the Applicants' solicitor late on that day (Thursday), leaving an effective period of only one and a half working days for the submissions to be prepared and delivered. The matter was further complicated by the long- standing arrangement of the Applicants' solicitor (a sole practitioner) to travel overseas at 7 pm on Friday 19 December. By letter to Mr. Wilson dated and apparently delivered to him on 19 December, the Applicants' solicitor advised the Department that because of his pending departure for overseas and his need to obtain information from other

organisations and persons to support the Applicants' "appeal" to the

Minister, it would not be possible for him to deliver his submissions by the deadline set. Saying that his office would re-open, presumably with his presence, on Monday, 5 January 1987, he proposed an alternative

deadline of Friday, 9 January 1987, somewhat breathlessly concluding,

perhaps more in hope than in confidence or expectation:

vacation period and the writer's departure [sic] two

deportation orders against detainees who have formally

defence before any such deportation orders are made." The Applicants' solicitor departed on his overseas journey as scheduled. In his absence, the Applicants were interviewed personally on 22 December at Villawood Detention Centre by Departmental officers and were informed that their deportation was to be put before the Minister's delegate that day. Departmental documents received in evidence by consent reveal that the Applicants declined an invitation to place further material before the delegate saying that they had nothing to add to that which had been earlier advanced. The indications in the material before me are that this interview took place without an interpreter to assist the Applicants, especially the first Applicant who apparently speaks and understands English with difficulty. Nor is there any indication that the applicants were asked if they wished to have another lawyer present at the interview in the absence of their solicitor overseas, or 1f they consented to be interviewed without either a lawyer

or an interpreter. Their solicitor was certainly not informed before his

departure that he should arrange for other representation for the

Applicants during his absence (although I believe he should have done

These persons were legally represented; they had chosen this means of placing their concerns, attitudes and intentions before the Department. An interpreter had been used in previous contact with them. This "interview" on 22 December should not have taken place in these unsatisfactory circumstances. That it did seems to me to indicate the Department's unease and doubts about following the course of action on which it was apparently bent. Considering that the Department knew the Applicants' solicitor was again to be in Australia from 5 January 1987 and that it did not attempt to deport the Applicants until 6 January, the "interview" of 22 December 1986 was quite unnecessary. It could only have served, however unintentionally, to cause further stress and upset

to three people whom it might be reasonable to assume were vulnerable

In the event, deportation orders were signed against all three Applicants on 22 December 1986 and the concession of a _ supervised voluntary departure was refused. On 6 January 1987 (apparently the proposed date of their deportation), the current application for review of both the deportations and the refusals of refugee status was filed. An application for a stay of the ' deportation orders was made before Mr. Justice Beaumont at 10.45 am on that day. After hearing submissions from the legal representatives of the parties for about 20 minutes, his

Honour made an order that the deportation orders be stayed until further

order of the Court and stood the matter over to 12 January 1987 for

final hearing. His Honour also gave a number of procedural directions

It appears that at the very time application was being made to Mr. Justice Beaumont for these orders on behalf of all three Applicants, the third Applicant Mr. Rahim was being or had actually been deported from Australia. The Applicants' solicitor informed me that this was known to him at the time the matter was before his Honour, yet it was not drawn to his Honour's attention. As a consequence, Mr. Justice Beaumont was persuaded to order a stay of deportation of Mr. Rahim which was

entirely futile. Why the Department singled out Mr. Rahim for

When I asked how this situation could have been allowed to occur, and

(a) the solicitor for the respondent Minister was not instructed by

the Department that the third Applicant had been deported until

(b) the proceedings before his Honour had been very short and no opportunity had been available to the Applicants' solicitor to

(c) the legal representatives of the parties discussed the matter outside the Court after his Honour had made his orders but decided not to go back into the Court and inform his Honour of

I sought and have read the transcript before Mr. Justice Beaumont. Not only, as would be expected, was there ample opportunity to tell his Honour the facts (assuming that the facts were not known when the affidavit in support of the applications, not distinguishing the situation of Mr. Rahim, was sworn); his Honour was told that if he did not stay the orders, all Applicants would be deported a few hours later that day. When it is recalled that part of these Applicants' claim to remain in Australia is so that the three of them could remain together,

it becomes clear that these "explanations" are wholly untenable.

The failure to inform his Honour of the facts was at least improper and should not have been allowed to occur. Mr. Rahim's deportation emerged only incidentally before me; it was not opened at the beginning of the hearing that there was no purpose in considering an application that Mr. Rahim's deportation order be reviewed. In an effort to rescue something from the mire of judicial criticism, an application was made on Mr. Rahim's behalf, virtually at the conclusion of the proceedings, for an order that the respondent Minister take the necessary steps to bring Mr. Rahim back from Singapore. This application, which was not in the form of any formal amendment to the application for review, was

based upon a decision of Wilcox J. in Azemoudeh & Anor. v Minister for

Immigration and Ethnic Affairs & Anor. (1985) 8 ALD 281 to which I drew

attention during the hearing. I shall deal with this application later. Meanwhile, I shall treat these matters as identical applications by all

The Applicants bring their applications pursuant to section 5{1) of the ADJR Act, seeking review of the deportation orders and the refusal of refugee status. No evidence was brought in support of the applications in relation to the latter determinations, and they were not argued, so I shall not pass judgment on them. They base their claims against the

deportation orders on two sub-paragraphs of section 5(1), namely:

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

connection with the making of the decision to deport (section

(ii) that the making of the decision to deport was an improper

exercise of the powers given by the Migration Act (section

Section 5(2) of the ADJR Act provides what are in effect particulars of the matters that can be raised under section 5(1)(e). In this case, two

sub-paragraphs of section 5(2) were relied upon, namely:

(i) that there was an exercise of a discretionary power in bad

(ii) that the power was exercised so unreasonably that no reasonable

person could have exercised the power in that way (section

The question of the applicability of natural justice to judicial review of administrative decisions made under the Migration Act has been the subject of much judicial discussion over recent years. That certain natural justice in the sense of procedural fairness must be granted in the exercise of the power to deport under section 18 of the Migration Act now seems to have been definitively declared by the High Court in

Kioa & Ors. v West & Anor. (1985) 60 ALJR 113. At p.127 Mason J. said:

"_...the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ..."

"|... in general, it will be a matter of determining

what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case."

In considering what is involved in terms of procedural fairness when the discretionary power to deport under section 18 of the Migration Act is

being exercised, Mason J. said at p.128 (the underlining is mine):

"It would be going too far to say that fairness requires that in all cases in which a deportation order is to be made notice should be given to the prohibited immigrant of the intention to make such an order and of the grounds upon which it is to he made. The Migration Act plainly contemplates that in the ordinary course of events a deportation order will be made ex parte. And the prohibited immigrant may be a person who, intent upon remaining in Australia without lawful right or titie, has evaded the authorities and will continue to do so. He may even be a person who has been required under s.31A to leave but has declined to do so. fo insist that he be notified of the intention to make a deportation order would serve only to facilitate evasion and frustrate the objects of the statute. These considerations indicate that, in the case where the reason for the making of the order is that the person concerned is a prohibited immigrant, the dictates of natural justice and fairness do not require the giving of any advance notice of the proposed making of the order...

making of the order travel beyond the fact that the person concerned is a prohibited immigrant and those reasons are personal to him, as, for example, where they relate to his conduct, heaith, or associations. And if the order is made in consequence of a refusal to grant a further entry permit to him, the reasons on which that refusal is based may require that as a

matter of fairmess the person affected should have the chance of responding to them.

However, this is not to say that fairness will necessarily, or even generally, require that an applicant for a further entry permit be given an opportunity to be heard even where deportation may follow from its refusal..... In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot

complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision maker intends to reject the application by reference ta some consideration personal to the applicant on the basis of information obtained from another source which has not been deait with by the applicant in his application, there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: In re H.K.(An Infant) [1967] 2 QB 617. If the application is for a further temporary entry permit and it is made in circumstances which are relevantly similar to those in which the earlier permit was granted, the applicant may have a legitimate expectation that the further entry permit will be granted or will not be refused in the absence of an opportunity to deal with the grounds on which it is to be refused. And if the refusal is to be attended by the making of a deportation order, the case for holding that procedural fairness requires that such an opportunity be given is unquestionably stronger."

It was submitted here that the Applicants were entitled to be heard on

the question of their deportation and that in substance they were not

1. that the DORS Committee decision was so unreasonably quick that

inadequate opportunity was available to provide material in

support of the Applicants' case for refugee status;

2. that the deadline for submissions of 12.00 noon on 22 December 1986 (of which notification was received late on 18 December) allowed an unreasonably short period by any standard and a limit that was objectively impossible to keep in this case by reason

3. that there should be no deportation pending the "appeals™ to the Minister against the delegate's acceptance of the DORS Committee's recommendations and that those "appeals" could not

go forward in substantive form until the reasons for the DORS

In Sezdirmezoglu & Anor. v Acting Minister for Immigration & Ethnic

Affairs (No.2) (1983) 51 ALR 575 at 577, Smithers J. said that the discretion to deport "must be exercised according to law one provision of which 1s that the Minister must consider all circumstances relevant to the position of the person with whose desire to remain in Australia he 1s concerned... The duty, however, is no more than a duty to take all relevant considerations concerning the prohibited immigrant in relation to the interests of Australia into account." In Minister for

Immigration & Ethnic Affairs v Tagle (1983) 48 ALR 566, the Full Court

of this Court held that the delegate was under a duty when exercising the power to deport to take into account all relevant considerations. It is submitted here that the delegate could not possibly consider this matter fairly, or fully, taking into account all relevant considerations, without the Minister's decision on the issue of refugee status. It is said that at least one central fact has been denied to the delegate who was determining the deportation question which was clearly relevant to that question. As I have previously observed, it is obvious that if a person is granted refugee status and as a result obtains an entry pemmit by reason of the provisions of section 6A(1)(c), he or she

I note in passing that section 6A(1)(c) is dependent upon the applicant for refugee status being the holder of a current temporary entry permit and that a person who is a prohibited non-citizen by reason of the fact that a previous temporary entry permit had expired or been cancelled could in theory not even be considered for refugee status. However, in the case summary prepared by an officer of the Department for the consideration of the delegate, which is in evidence, it was pointed out that the delegate determining whether a person should be granted an entry permit under section 6A also has the power to grant a temporary entry permit to allow that determination to be made. In other words,

if the delegate decides that the person is entitled to reside here, the

temporary entry permit may be granted to allow the decision to take

There is no doubt from the decisions to which I have made reference and

several others since Kioa which have given effect to its terms,that a

visitor to Australia who is opposing deportation will normally he entitled to be heard and given the opportunity to make submissions on the deportation. However, in Sinnathamby v The Minister for Immigration

& Ethnic Affairs, (1986) 66 ALR 502 per Fox J. at 506, it was observed

that the effect of Kioa was that while the Minister was obliged to accord natural justice, the extent of the requirement is governed by the

I am not persuaded that natural justice was not afforded to the Applicants in terms of an opportunity to be heard on their deportation

prior to the orders of 22 December 1986. It is true that "appeals" to

the Minister were intimated immediately after the DORS Committee's recommendations were accepted, were again indicated in the Applicants' solicitor's letter to Mr. Wilson of 17 December 1986, and formally "lodged" in his letter to the Canberra Office of the Department on 17 December 1986. It 1s also true that the reasons for the DORS Committee recommendations had been sought immediately and were promised and awaited. But even if it be accepted that the DORS Committee's recommendations and the ensuing decisions were made with unexpected expedition, there were some ten days after their notification to the

Applicants for submissions relating to the then foreshadowed

I also cannot see that a legitimate complaint can be mounted that the relevant natural justice was not accorded to the Applicants to make submissions in relation to the deportation orders by reason of the fact that the Applicants' solicitor was intending to depart for overseas. This seems to be so even though as a result of this departure, a formal time limit of some one and a half working days plus two weekend days was effectively reduced to one working day so far as he personally was concerned. From the time they were notified (on 12 December 1986) of

the delegate's acceptance of the adverse recommendations of the DORS

Committee (on 9 December 1986), even to the evening of 19 December 1986 when their solicitor left the country, there clearly was ample opportunity for the Applicants to place before the delegate all matters they wished to have considered. One of them, viz. that no decision should be made until the Ministerial review of the DORS recommendations, Was put and on the evidence before me taken into consideration by the delegate. Further, if there were in truth additional submissions to be made, the Applicants' solicitor could and should have made alternative

arrangements for this case as all absent sole practitioners presumably

do for all matters that will or may arise during their absence. Although for the reasons previously given, I believe that the circumstances of the interview at Villawood on 22 December 1986 did not represent a further real opportunity to make submissions, the earlier opportunities

to be heard appear to me to be adequate to fulfil the criteria laid down

However, in my opinion, the situation is different when consideration is given to the consequences flowing from the lodging of the so-called "appeals" to the Minister from the delegate's endorsement of the DORS Committee's refusal to recommend refugee status to the Applicants. Before the making of the deportation orders against the Applicants on 22 December 1986, the Department and the delegate were fully aware of the Applicants' wish to pursue their entitlement to a Ministerial review of the DORS Committee's adverse recommendations. Because the DORS Committee's reasons had not yet been supplied to the Applicants or their solicitor, the delegate therefore also knew that the substance of the "appeal" and the nature of the evidence that the Applicants could or would be able to advance in its support had not been formulated. In addition, the fact that the reasons were promised 1n accordance with the Applicants' statutory entitlement May have raised the legitimate expectation that the Ministerial review would take place before the

deportations were finally decided (see F.A.I. Insurances Ltd. v Winneke

(1982) 151 CLR 342 at 360 per Mason J.; Minister for Immigration &

Ethnic Affairs v Haj - Ismail (1981-2) 40 ADR 341 per Davies J. at 357-8,

followed by Beaumont J. in Arslan v Durrell (1982-3) 48 ALR 577 at 592)

and that further submissions would then be permitted on the deportation

The possibility that alli of these potential deportees may be refugees is in my view, certainly "personal" matter over and above their status as prohibited non-citizens on which they were entitled to but did not have the opportunity of making submissions when their deportations were under

consideration (see Kioa supra at 128). Because the deportation

considerations are so fundamentally affected by the possibility of their refugee status, I am of the opinion that no fair decision on the deportations could be made here without the outcome of the Ministerial

review being awaited and known, and further submissions permitted

The solicitor representing the Minister in these proceedings tendered, and I received into evidence without objection, the Convention and Protocol on refugees referred to in section 6A(1)(c) of the Migration Act. It was submitted by him that the Applicants could not possibly he defined as persons having any of the characteristics which those instruments set out as necessary for the classification fo ka categorisation of persons as refugees. Admittedly, this evidence was said to go to the issue of discretion. On any issue, however, it is not for me even to attempt to decide, still less conclusively determine, whether these Applicants could or could not be treated as refugees under

I have very little information before me as to the appropriate characteristics of the Applicants or, for that matter, of Singapore and Bangladesh as alternative possible countries of residence for these applicants. I do agree that on the scanty material available together with my own experience of the operation of the Convention and Protocol, and my knowledge of those two countries, there is little to suggest that

any one of these Applicants would qualify as a refugee. However, it has

always been part of the Applicants' wish, in relation to the Ministerial review of the refusal of refugee status, to be permitted to bring additional evidence, including "from refugee and women's organisations" (see Annexures C and D to exhibit A in the proceedings). I have no idea what that evidence might be. In any event, it is also not for me to anticipate the decision of the Minister in this regard or to make the decision on his behalf. It will suffice to say that on the evidence before me, the possibility that these persons could be refugees entitled to the exercise of a Ministerial determination pursuant to section 6A(1)(c) of the Migration Act is not so remote and absurd as to render

their proposed "appeals™ without any arguable substance at all.

It was also submitted on behalf of the Minister that not to await his decision in relation to the "appeals" is not a demand of natural justice because 1t is not a refusal to give a hearing. It was suggested that if it had any classification at all under ADJR Act principles, it would be that not to await a decision was unreasonable rather than a refusal of procedural fairness. I reject that submission although the failure to wait may be in both categories for the reasons discussed later. In my view, the failure of the delegate to wait for the decision of the Minister was to fail to permit the Applicants to place every

consideration before him/her relevant to the deportation.

Not to delay in making the decision and permit the Applicants the opportunity of pursuing their "appeals" and then of placing additional Material before the delegate following upon the determination of the "appeals", renders the concept of personal review by the Minister a nonsense. The entitlement to the "appeal" would be an entitlement in form but not in substance. The time and effort taken to compile the

reasons for the DORS Committees recommendation would etfectively have

been an entire waste of resources, both human and financial, whatever theoretical rights might have persisted when the Applicants were out of Australia. It is surely not possible to accept that the formulation of

Mason J. in Kioa, reversing or substantially modifying as it did in the

light of legislative change, the effect of at least two previous decisions of the High Court on this subject (namely, Salemi v MacKellar

(No.2)(1977) 137 CLR 396; Rv MacKellar; ex parte Ratu (1977) 137 CIR

461. could have envisaged such a bizarre and extraordinary resuit. Further, having regard to the offer of the Applicants' solicitor to have final submissions on the deportation with the Department by 9 January 1387 and to the 28 day limit for the supply of the reasons for a decision taken on 10 December 1986 (although not actually requested in writing until 17 December), this delay could not have been long. Considering that actual deportation was not attempted until 6 January and that the Applicants had been in Australia for so long, no feasible

argument emerges that the grant of this opportunity would have wrought

hardship or disadvantage to the respondent Minister.

My attention was drawn by the Minister's solicitor to a submission to his superiors on 22 December 1986 by the same Mr. Wilson referred to earlier. This was provided on the same day as, perhaps only minutes prior to, the making of the deportation orders (Annexure M to Exhibit 1). In this document Mr. Wilson reveals that he sought advice from the Department's legal branch as to the legality of the proposed deportation orders in the light of the Applicants' solicitor's letter of 17 December 1986 to Canberra "lodging the appeal" from the DORS Committee and asking for delay. The legal advice given to Mr. Wilson was said to be "...that there was no legal impediment to (the making of the deportation orders)

but it might not be viewed kindly by the Federal Court."

Assuming that this is a layman's narrative summary of the legal advice (surely a reasonable assumption in view of the absence of any particular earmarks of a definitive statement of law by a lawyer), it seems to be properly interpreted as a gentle suggestion by the legal adviser that while there was no _ statutory bar to the issue of deportation orders under the Migration Act in these circumstances, the administration and interpretation of the ADJR Act by the Federal Court in the name of

reasonableness, procedural fairness or natural justice may very well

I agree, with respect, with the spirit and purport of that advice. A delay in the deportation orders until the Minister had reviewed the Applicants' possible status as refugees would have permitted the taking into consideration by the delegate of the outcome of that review and permitted the Applicants to make further submissions in the light of the Minister's determination. Even if the Minister had decided to reaffirm the delegate's acceptance of the DORS Committee's recommendations, the material that had become available on the review might have permitted the bringing into account of new matters relevant to deportation, for example as to the existence of "strong compassionate or humanitarian grounds" for their continued stay in Australia (section 6A(1){e)). To deny the Applicants this opportunity was in my view to deny them

The next submission on behalf of the Applicants was that the decision- maker improperly exercised his power by displaying bad faith. The basis for this assertion was said to be the delegate's proceeding with the deportation orders notwithstanding the Applicants' solicitor's overseas journey. This submission is without foundation. Order 54 Rule 2(2) of the Federal Court Rules requires that if bad faith 1s to be alleged in proceedings in this Court, particulars must be given. No particulars were given in this case, although no reference was made to the Rule nor was any complaint was made on behalf of the Minister at the failure to supply the required particulars. No authority was quoted in support of the contention that the refusal by A to adopt a timetable supplied by B for the carrying out of A's statutory powers, especially because of an overseas journey undertaken by B at or before the Christmas vacation period, would represent bad faith. Indeed, no satisfactory explanation was advanced as to why the matter was not left in the hands of another solicitor or counsel other than to state that it is difficult to find solicitors experienced in these matters, and impossible to find counsel in any type of matter, at that time of the year. That "explanation",

A further submission on behalf of the Applicants was that the decision

to deport was an improper exercise of the power to deport because it was

intrinsically unreasonable in that no reasonable person could have made

that decision on the material available (see section 5(2)(g) of the ADJR

Act). In Conyngham & Ors. v Minister for Immigration & Ethnic Affairs

(unreported, 17 July 1986) Wilcox J. said on page 23 (without incurring any dissenting comment on appeal - Full Court, unreported, 25 July

"Before a decision may relevantly be stigmatised as 'unreasonable', it must be possible to say that it is a decision 'that, looked at objectively', is 'so devoid of plausible justification that no reasonable body of persons could have reached' it: see per Lord Diplock in Bromley London Borough City Council v Greater London Council (1983) 1 AC 768 at 821.

It was submitted that this was such a decision. It was said that because the matter was "rushed through very quickly in Canberra" and of the other factors to which I have earlier made reference, no submissions were possible. I do not accept this submission. Nor do I believe that it is truly a submission of unreasonableness. As I have said before, this was not a speedy deportation at all. The Applicants were arrested on 21 November 1986 when their imminent deportation must undoubtedly have been expected. They were notified on 12 December 1986 that an adverse decision had been made two days previously as to their refugee status following the DORS Committee's recommendations. It was then clear that their deportations were again under consideration. On 18 December 1986 their solicitor was invited to make further submissions but for the

reasons given he was unable to do so. This is not by any standards an unreasonable timetable for the demands of natural justice in a matter of

It was even submitted on behalf of the Minister that I should take into account the fact that almost a month had elapsed between the date of the deportation orders and the end of the hearing of these applications. I do not think this approach should be adopted, especially since the stay of the deportation orders was granted by Mr. Justice Beaumont on 6 January 1987. While this case was being prepared and conducted, and whilst 'the Department 'was' under a' Court order not to deport the Applicants, it does not seem that the Department can obtain any benefit from the additional time that has elapsed. Nor could it be expected that the Applicants could make the further submissions and submit the further evidence their solicitor had foreshadowed when they had still not been supplied with the reasons for the DORS Committee's recommendations and

as a result they had not had the Minister's review of the decision which

However, none of these submissions seem to me to relate to the unreasonableness or impropriety of the decisions to deport. I find it difficult to categorise these decisions as "entirely devoid of plausible justification"; still less as decisions that "no reasonable body of persons could have reached". The error that has been made here is strictly one of law and not that the decisions under consideration were

As I indicated earlier, the only possible "unreasonableness" I can see is the decision to make the deportation orders on 22 December 1986. I have not heen able to find any authority as to whether this type of "unreasonableness" is within section 5(2)(g) of the ADJR Act - that is, whether a decision to make a decision and to make it on a particular date in the knowledge that this would or might procedurally disadvantage

a potential deportee is or could be an improper exercise of the power to

deport. In the absence of authority, I should be inclined to say that the statute should be so interpreted and that these decisions in this case infringe the subsection as they are such that no reasdénable person (such as Mr. Wilson's legal adviser) would have made them. However, in the light of my earlier conclusions, it is not necessary to decide the

Having found therefore that a ground exists for the Court's intervention, the question next arises as to whether the Court should exercise the discretion granted to it under the ADJR Act for the granting of orders of review. A number of matters were submitted under this heading for the Applicants, including that this was a case involving preservation of a family unit, that the evidence identified some factual errors on the part of the Departmental officers prior to the making of the deportation order, that no reasonable opportunity had been granted to make the submissions, and that even if bad faith as a matter of law was not established, there had been a lack of good faith shown by the Department. For his part the Minister submitted that Mr. Rahim was 23 years old and that in any case the break-up of the family unit had been considered by the delegate. It was further submitted that the Applicants had ample time and access to legal advice and that any factual errors made by the Department did not amount to legal error. As I have earlier said, the respondent also submitted that these Applicants

I was not particularly assisted by these submissions. It seems to me that 1t will be a comparatively rare and otherwise hopeless case when a person is denied a substantive fright to procedural fairness by a significant breach of the standards required, that the discretion to intervene should not be exercised. I have already pointed out that the Department granted a fright to have the acceptance of the DORS Committee's recommendations decision reviewed by the Minister. [In this particular case, the Department was at all relevant times presumably (or hopefully) working on the preparation of reasons to be furnished to the Applicants so that their submissions to the Minister could be sensibly framed. The effect of the granting of the refugee status would mean in reality that they would not be deported, at any rate not for the time being. Even if they are not granted refugee status, material may very well emerge in the course of its consideration which would permit their making application for and being granted permission to stay in Australia

These are real and substantive rights. The Department's Enforcement Section did receive legal advice that amounted to a statement that if they went ahead notwithstanding the fact that the DORS recommendations had not been reviewed, this Court might intervene under the ADJR Act. If their applications are as meritless as the Minister's representative before me contends, the time involved could only have been slight and the decisions to refuse refugee status could not have been reversed by the Minister. The delegate's unwillingness or refusal to grant these Applicants an adequate degree of natural justice was thus not based on inadvertance or unimportant factual error, nor was it of littie or no substance. In my opinion therefore, I should in principle exercise my

This raises, finally, the special situation of the already deported Mr. Rahim. If Mr. Justice Beaumont had been informed on 6 January 1987, as his Honour most certainly should have been, that Mr. Rahim had already been deported, there could and would have been no stay of his deportation order. Indeed, an entirely different application would have had to be made to his Honour than the one actually made and his Honour May have dealt with it in a completely different way. Although as I have found, Mr. Rahim, like the other two Applicants, has heen denied procedural fairness in the making of the deportation order against hin, different issues arise as a matter of discretion. For here not only am I being asked to quash the deportation order but to direct the

respondent Minister to arrange for Mr. Rahim's return to Australia.

I have given careful consideration to the reasons for judgment of Mr. Justice Wilcox in Azemoudeh (supra) but do not think that this is a case in any way analogous to that which there prompted his Honour to order the return of a deported person. Mr. Rahim is a Singapore citizen who has been deported to his home country. He is 23 years of age. His father and some siblings live in Singapore, although I understand he has had little contact with them over recent years. He may in fact be truly part of the family unit of his mother and step-father, but I know little of their relationship, domestic or occupational. On the other hand, Singapore can not reasonably be regarded as a country which on the evidence before me is likely to subject its citizen, Mr. Rahim, to such adverse treatment as would permit him to be classified a refugee or successfully to invoke section 6A(1)(e) of the Migration Act. If his mother and step-father in Australia are refused permission to reside in Australia in due course, there 1s seemingly nothing that could he advanced on behalf of Mr. Rahim of which I am aware that could make it

remotely likely that he would be granted permission to live in Australia t

alone. Nor on the evidence would he wish to. If, however, the parents are permitted to reside in Australia, the quashing of his deportation order should remove a major barrier to his visiting the other Applicants

here and/or making due application to join them in this country as a

1. that the deportation orders made against the first, second and

2. that the matter be referred to the respondent Minister for further consideration of the decision to deport the Applicants

Mr. Islam and Ms Banu in accordance with the Reasons for

I certify that this and the preceding pages are a true copy of the

Solicitors & Attorneys 916/185 Elizabeth Street Sydney, 2000