Blunk, Hans Jurgen v Minister for Immigration and Ethnic Affairs [1983] FCA 9

Migration Act 1958 ss. 6A(1)(b), 7(3), 18, 27(1) (ab) and 39

HANS JURGEN BLUNK v. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

BETWEEN: HANS JURGEN BLUNK Appellant AND: THE MINISIER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent ORDER 3 Morling J.

1. That the application for interlocutory relief he dismissed.
2. That the matter be stood over to 9:30 on & February

) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. G 6 of 1983 ) )

AND: THE MINISTER FOR IMMIGRATION AYD ETHNIC AFFATRS

This 1S an urgent matter as the applicant seeks an interlocutory order that he be released from the prison in which he is presently detained. Tt ius therefore highly desirable that I should determine 1t as expeditiously as possible. As I have formed a firm view about the outcome of the proceedings, I propose to express that view without reserving my decision. I am much indebted to Mr Arthur For his thorough and able submissions and I should say at once that he has put every argument available to be advanced in support of the appiication.

s.5(1) of the Administrative Decisions (Judicial Review) Act

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1977 in respect of decisions made by the respondent minister on 16 June 1982 and 14 December 1982. The decisions were to refuse requests made by the applicant that he be given resident status in Australia. I shali refer to the nature of

these decisions in more detail later in these reasons.

At this stage of the proceedings, the applicant seeks unterlocutory relief staying proceedings under the minister's decisions. He also seeks interlocutory orders that he be released from Adelaide gaol where he 1s now being kept and that he be admitted to bail. If I had been persuaded that the applicant was entitled to interlocutory relief, I would have granted relief in a form somewhat different from that in which it 1s sought. I do not think that the granting of bail would be appropriate in proceedings of this kind; rather, I think the remedy would be an order, in appropriate terms, restraining the minister from detaining' the applicant. However, nothing turns on this matter because, had I been minded to grant interlocutory relief, I am confident an order could have been framed which would have met the circumstances of the case.

The proceedings arise in the foilowing way. The applicant, Mr Blunk, entered Australia on 5 June 1981, being then in possession of a valid temporary entry permit. The permit was valid for a stay of three months. It seems, on the evidence presently before me, that had Mr Blunk - who haiis

from West Germany ~ applied to the authorities to enter

Austrai1la as a migrant, he would have been rejected because of

his occupation as a cierk. No doubt it was for that reason that when he applied for his entry permit he appiied for a permit for purposes of tourism only. The permit was endorsed "employment prohibited". 2 .

After he had been in Australia for some time, Mr Blunk married Karin Hannelore Antoun in Adelaide on 10 Auqust 1981. This lady was and is an Australian citizen. On 13 August 1981 he submitted an appiication for change of status to that of a permanent resident and applied on the same day for a further temporary entry permit. He was granted a further 'temporary entry permit vai1ld for a stay until 5 January 1982.

On 18 December 1981 the applicant's wife called at the office of the Department of Immigration and Ethnic Affairs in Adeiaide and informed an officer of the Department that she intended seeking a divorce from her husband. She said that she had already changed her name by deed poll back to that of Antoun. She claimed that a next-door neighhour had brought the applicant to her when his visitor's entry visa was about to expire and suggested that marriage to the applicant was the only method by which he could remain in this country. She

told the departmental officer that she had been lonely and

that she saw marriage as offering her another chance of

happiness. After eight days she agreed to marry the applicant. She claimed that she separated from her husband when he ieft her at her request on 26 October 1981. - She

further claimed that the marriage had irretrievably broken

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down and that she was intending to apply for a dissolution of the marriage as soon as she was able to do so.

I stress that the above is a hearsay version of Mrs Biunk's account of the marriage, and whether 1t is correct or not remains to be ascertained when these proceedings go to a hearing on the merits.

Mr Blunk obtained employment with the Australian National Raliways at Maliala, and the evidence indicates that he has been engaged in that employment for at least 12 months and vrobabiy longer. On 15 January 1982 he calied at the Adelaide office of the Department of Immigration and Ethnic Affairs and spoke to an officer who informed him that, because his marriage had irretrievably broken down, his eligibility for a change of status no longer existed, and he would have to leave Australia.

On 21 Aprii 1982 the then Minister of State for Immigration and Ethnic Affairs, Mr Macphee, wrote to Senator Bolkus who, I assume, was seeking to assist the applicant, and informed him that as the applicant was a prohibited immigrant he shouid leave Australia immediately. The Minister informed the senator that 1f there were other considerations or additional factors which wouid materialiy strengthen the applicant's application to remain in Australia as a permanent resident, the applicant could prepare a case for special consideration by the Tmmigration Review Panel. A leafiet setting out the functions of that panel was forwarded to the

Subsequently the applicant did avail himself of the opportunity of putting his case to the Immigration Review Panel. In his submission to the Panel he gave his account of the marriage. If his account 1s to be accepted, the marriage was not 1lliusory; he saw his wife quite frequently before the Marriage ceremony; he lived with her as man and wife for some time after the marriage, and, according to him, i1t was the circumstance that his place of employment was a railway camp at Mallala which seems to have ied his wife to come to the view that thelr marriage was over. He said he was upset by her change of attitude and attempted to see her to persuade her to a different point of view. Apparently she has not responded to his overtures. He says he entered into the Marriage out of genuine regard and affection for his wife and that he had no reason to believe that his wife married him for any reasons other than ordinary love and affection. I have not heard oral evidence from either the applicant or his wife and it 1s not for me on the hearing of this application to express any view one way or the other as to the genuineness of his statements as to the marriage. For the purposes of this application, T propose to accept his account of the reasons for the marriage and also that he genuinely wishes to make it work.

In his decision of 16 June the minister said, inter alla:

Minister for Immigration and Ethnic Affairs under section 6A(1)(b) of that Act which does

aliow for the grant of residence to the spouse of an Australian citizen. However, Mrs Blunk

has provided information which ieads the department to believe that your marriage 1s one of convenience, undertaken for the sole purpose of gaining resident status for yourself in Australia. Tn those circumstances the Manister for Immigration and fthnic Affairs has decided not to approve your application for resident status.

As your temporary entry permit has expired, you are now a prohibited immigrant. You should make arrangements to leave Austraila and should notify this office within three. days of the date of this letter of your departure plans. These should provide for departure within three weeks.

Whilst the Minister 1s satisfied from the '1nformation presented that you are not entitled to the grant of resident status, shouid there be other compelling factors which wouid materially substantiate and strengthen your appiication, you may wish to present a case to the Immigration Review Panel for special consideration. I have enclosed a leaflet and a form of Request for Review 1f you wish to do this."

It will be remembered that it was after the sending

of that letter by the minister to the applicant that he did

indeed submit his case to the Immigration Review Panel.

The minister's decision of 14 December 1982 was in the form of a letter addressed to the applicant's solicitors.

Mr Biunk's case has been considered by the Immigration Review Panei. The panel had before it his Request for Review and attachments thereto, together with information from the department concerning the Legisiation, policy and other criteria appiicabie to persons who enter Austrailia as ~- visitors and subseaquentiy seek to remain permanentiy.

I have examined the information presented by you and Mr Biunk and studied the findings of

the panel. However, I have decided that the decision to refuse his appiication is to be maintained.

Mr Blunk should now make arrangements for his departure from Australia within 21 days of the date of this letter. However, if he possesses a valid entry permit authorizing his stay beyond that date, he need not depart until that permit expires.

I shouid mention that if he does not depart either within the 21 days specified in the . previous paragraph or before the expiry of any valid temporary entry permit he may hoid, provision exists under the Migration Act to

enforce his departure by ordering his deportation."

It 1s indisputable that the applicant is a prohibited immigrant. Section 7(3) of the Migration Act provides, inter alia, that upon the expiration of a temporary entry permit, the person who was the holder of a permit becomes a prohibited immigrant unless a further entry permit applicabie to him comes into force upon the expiration of the earlier permit. Section 18 gives the minister power to order the deportation of the applicant. The minister has exercised that power and has signed a deportation order dated 25 January 1983. By virtue of s.2?7(1)(ab) of the Act, the applicant is deemed to be guility of an offence and s.39 authorises his arrest and detention. In fact, the applicant was arrested on 28 January and placed in Adeiaide Gaol pending his deportation.

I turn now to consider the grounds of his application for an order of review. He claims that he 1s entitled to an order of review of the minister's decisions on the grounds

(a) a breach of the rules of natural justice occurred 1n connection with the making of the decisions;

improper exercise of the power conferred on the minister;

(c) the minister's decisions were induced or affected by fraud; and

(da) there 1s no evidence or other material to justify the making of the decisions.

Mr Arthur made it clear that no allegation of fraud was made against the minister; rather it was suggested that Mrs Biunk had been guilty of conduct in the nature of fraud in making her representations to the minister.

There 1S some authority for the proposition that in dealing with applications for interlocutory relief by deportees who are heid in custody, the court shouid appiy the

weli known principles referred to in Beecham Group Limited v

Bristol Laboratories Pty Limited (1968) 168 C.L.R. 618. See

Nural Tirogliu v The Honourahie Ian Macphee, Minister for State

for Immigration and Ethnic Affairs and the Commonweaith of

Austrai1a (18 June 1981) per Northrop J. I am not at all sure that this proposition is always applicable in proceedings of this kind. Tn my opinion it 1s always a most compelling consideration that an applicant 1s in gaol and I think the court should be quick to grant interlocutory relief in such a

case unless there are strong grounds for him being kept in

Nevertheless, 1t does seem to me that 1t 1s necessary

in proceedings of this kind to have some regard to the

applicant's prospects of success in the proceedings. No doubt the applicant's evidence has been put together with some haste because of the urgency of the matter but I must say that, as at present advised, I would have thought that the only conceivable ground upon which the current proceedings couid succeed would be the first ground that I have enumerated above, namely that there was a breach of the rules of natural Justice in the making of the decisions. But on the evidence u

in its present form even the first ground will be very difficult to substantiate. Mr Arthur argued that the appiilcant had not been given an opportunity by the minister to repiy to his wife's allegation that the marriage had 1rretreivably broken down. However it seems to me that although there may have been some informality in the manner in which the applicant was informed of the considerations which were being urged against his appiication by his wife, he nevertheless had an adequate opportunity to present his case to the minister. On the information presentiy before the court it does not appear to be a strong appitcant's case.

An equally, if not more, important consideration 1s the circumstance that the applicant 1S now a_ prohibited immigrant. The provisions of the Act to which I have referred make 1t ciear that the detention of the applicant 1S Lawful. A case such as this is radically different from a case un

which a person is charged with a criminal offence buk where

that offence has not been proved. In such a case the granting

of bali 1S very common indeed. As Northrop J. pointed out in , Ze vat = eee ee ee EI Bho ae <s a aN ciated we wai. a ee ee ee

Nurai Tiroglu v The Honourabie Ian Macphee (supra) a case of

the present kind is much different from a case in which a person is held in custody pending his trial. His Honour said

"The poticy of the Migration Act 1s Clear. Prohibited ammigrants shouid not be left at Large in the community pending deportation unless the minister or an authorised officer exercises his discretion in accordance with section 39."

I respectfully agree with his Honour's observation. Nowever, I must confess to having considerable

sympathy for the applicant. So far as the evidence shows, he

1s not a member of the criminal classes. There 1s evidence

that the German police are ""iooking for" the applicant. Information to that effect was given to an officer of the Department by the Consulate General of the Federai Republic of Germany but, in spite of a request by the officer for details of that statement, nothing has been forthcoming. I therefore entirely disregard this matter in reaching my decision. Nevertheless, the fact is that the applicant 1s a prohibited iummigrant. He has no entitlement to stay or work in this country. Being a prohibited immigrant he is subject to the sanctions imposed by the Migration Act. Nor can I say that the minister 1s unreasonable in requiring the applicant to be kept in custody pending his deportation. There is nothing in the evidence to suggest that the appiicant wili

abscond but it would not be unreasonable for the minister to

A further dafficulty in the way of grantinq the unterlocutory application is that even if the applicant succeeds on the final hearing it does not follow that he witli cease to be a prohibited immigrant. Mr Arthur argued that a person who is the spouse of an Australian citizen is entitled as a matter of law to be granted an entry permit pursuant to s-6A(1)(b) of the Migration Act. He contended that if the minister reconsiders the applicant's request for an. entry permit he will be obliged as a matter of law to grant it because the applicant 1s indubitably legaily married to an Australidn citizen. If this 1s correct, 1t wouid foliow that the minister would also be obliged to order the release of the applicant from prison.

I cannot accept this argument. It 1s not supported by any authority, and I do not think it is possible to read s.6A so as to cast upon the minister a statutory obligation to 1ssue an entry permit to a person merely because he hecomes the spouse of an Australian citizen.

Por these reasons I refuse the application for interiocutory relilef. However, this 1s clearly a case which should be heard expeditiously and I shall give appropriate directions to ensure that the matter comes to trial at the earilest opportunity.

I note that the minister by his counsei undertakes that no step wiil be taken to deport the applicant from

Australia without giving at least 72 hours notice to, the

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I wouid hope that 1f this case takes any length of time to come to triai the minister will take further steps to inform his mund as to the risk of the applicant absconaing. If he comes into possession of information which leads him to believe that there 1s no risk of that happening then he will no doubt consider whether he should exercise his power under s.39(7) of the Migration Act to order the release from prison of the applicant.

I will stand the further hearing of the matter over

until 9.30 a.m. on Tuesday, 8 February. Whilst I do not

formally direct the Minister to furnish a statement of the

reasons for his decisions under s.13 of the Administrative

Decisions (Judiciai Review) Act, T would expect, on the facts

of this case, that such a statement will be given toa the appiicant's solicitors by 2 p.m. on Monday, 7 February.

If Mr Arthur desires his client to be in Court next Tuesday I or the Registrar will make an order requiring him to

I certify that this and the even (7/) preceding pages are a true copy of the

Reasons for Judgment herein of his Honour ir. Justice Moriing.

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