Ho, P.O. v. Minister for Immigration & Ethnic Affairs Woong, K.J. v. Minister for Immigration & Ethnic Affairs In, L.J. v. Minister for Immigration & Ethnic Affairs Yol, C.B. v. Minister for Immigration & Ethnic Affairs Jin, S.B. v. Minister for Immigration & Ethnic Affairs Eun, L.J. v. Minister for Immigration & Ethnic Affairs Hoon, H.B. v. Minister for Immigration & Ethnic Affairs [1988] FCA 129 - FCA 1988 case summary

Federal Court of Australia|1988-03-29|Before: Davies J, Mr J

These are applications under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)("the ADJR Act") for orders of review with respect to decisions of delegates of the

Minister of State for Immigration and Ethnic Affairs taken under

the Migration Act 1958 (Cth). There are seven applicants. Like decisions were made with respect to each. One of the applicants, Lee Jae Eun, has left Australia but the other six are in this

At the hearing of these proceedings, Mr B.J. Camilleri of counsel first appeared for the applicants. On his retiring because of ill health, the applicants were thereafter represented by their solicitor, Mr N.L.A. Barlow. Mr BP. Roberts of counsel

represented the respondent, the Minister of State for Immigration

amendments to the grounds of the application were sought and

There was tendered in evidence on behalf of each applicant, other than Lee Jae Eun, an affidavit, the intent of which appeared to be to contradict some of the material which was before the decision-makers when the relevant decisions were made and to put forward a view that, as a matter of fact, each of the applicants was, to use Mr Barlow's expression, an innocent victim of a migration racket. Thus, affidavits contained a paragraph to

"I never had the intention (nor did I ever state to my interpreter) that it was my intention to overstay my

: visa which I believed was being obtained for me by

Each applicant was cross-examined upon his affidavit, apparently with a view to showing that the applicant should

not be believed as to the facts to which he deposed.

However, in proceedings by way of judicial review, it is not for this Court to come to its own view on matters of

decision-maker and the decision-making power has not been conferred upon it. The decision-making powers conferred by the Migration Act are conferred upon the Minister, his delegates and officers of his department. A decision may be set aside by the Court under the ADJR Act only if it is shown that the decision was affected by an error of law, that is to Say, some procedural defect such as a breach of the principles of natural justice, some misapprehension of the law, a failure to deal properly with the issues by reason of a failure to take into account a material consideration or the giving of weight to animmaterial consideration, some improper motive or abuse of power on the part of the decision-maker or the reaching of a decision so perverse that no reasonable decision-maker could have arrived at it. In considering most of these issues, the ambit of the Court's consideration is limited to the material that was before the decision-maker and any other material that was to have been before the decision-maker because it was relevant and was either known to or ought to have been in the hands of officers of his

department. I deal with these matters more fully in Ruangrong

v. Minister for Immigration and Ethnic Affairs (delivered this

In the result, I have had to put out of my mind as being irrelevant to the issues before the Court much of what was deposed to in the affidavits and much of what emerged

A more important misunderstanding of the principles of judicial review lay behind the applicants' claim for damages with respect to the decisions under review and actions taken in consequence thereof. In brief, the case was put on behalf of the applicants that the deportation order made on 20 August 1986 should be set aside ab initio with the result that the subsequent detention of the applicants from 20 August to 2 December 1986 was unlawful. Alternatively, it was put that, | if the deportation order of 20 August 1986 was valid, then it ought to have been carried out forthwith and, as it was not, the applicants were detained until 2 December 1986 against their wishes and for an improper purpose. Arising out of these allegations damages were sought for unlawful detention. Mr Barlow submitted that the applicants had been arbitrarily detained for an unlawful purpose, that the Department's actions were calculated to injure the applicants and that there were elements of deception. He sought damages including

exemplary damages and submitted that there should be a further

However, damages are not a remedy of judicial review and s.16 of the ADJR Act, which specifies the orders which the Court may make in its discretion when making an order of review in respect of a decision, does not include an award of damages. Until the passing of legislation such as is contained in s.64 of the Judiciary Act 1903 (Cth), it was not possible to obtain any award of damages against the Crown, for neither an action nor a Petition of Right could be brought

against the Crown for a wrong committed by its officers. See

Dicey's Law of the Constitution 8th Ed. p.556. Even now, a claim for damages from the Commonwealth must be based upon a civil wrong or a breach of contract. An applicant who merely establishes a ground of review under s.5 of the ADJR Act is not thereby entitled to an award of damages. The remedies of judicial review are those in the nature of certiorari, prohibition, mandamus, injunction and declaration, as s.16 of the

Australia Act 1976 which authorises the Court to give "all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him in the matter...". Damages are not such a remedy in respect of proceedings brought by way of judicial review. Section 22 does not enlarge the provisions of substantive law so as to

authorise the award of damages in circumstances for which the law

does not provide: Thomson Australian Holdings Pty Ltd v. Trade

Practices Cmmission & Ors (1981) 37 A.L.R. 66 at p.73.

Mr Barlow referred to the further words in s.22 of the

Federal Court of Australia Act that "... so that, as far as

possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided." But those words do not entitle the Court in proceedings under the ADJR Act to make an order by way of damages when there is not before the Court any cause in respect of which damages may be awarded. Even

if, arising out of the facts that have occurred, the applicants

were entitled to bring proceedings against the Commonwealth or an officer of the Commonwealth for damages for false imprisonment, as to which I say nothing, and if, when brought, the Court had jurisdiction in respect thereof, by reason of s.32 of the Federal

Court of Australia Act or otherwise, such proceedings have not

been brought. Indeed, the Commonwealth is not a party to these

The present proceedings are proceedings solely under the ADJR Act for orders of review with respect to decisions taken by delegates of the respondent Minister. They are not proceedings against the Commonwealth or an officer of the Commonwealth for false imprisonment and make no claim for damages for a civil wrong. No amendment to the proceedings to raise such a claim was sought. It follows that the principal relief claimed in respect of the 1986 decisions was misconceived. See, eg. Pearce and

Before turning to the details of the decisions under review, it is appropriate that I make some comment upon the facts that were before the decision-makers. in doing so, I should make it clear that I shall not canvass much of the material to which Mr Barlow referred, particularly that part of the material which bears upon the applicants' claim in respect of unlawful

detention. I restrict my comments to matters which will explain

The applicant, Chong Bong Yol, entered Australia on 8

December 1985 and the applicant, Ko Joung Woong, entered

Australia on 22 February 1986. The other five applicants entered Australia on 26 July 1986. None of the applicants received an entry permit. Each held a return air ticket, presumably an open ticket, but as this was an ordinary requirement of a person entering Australia pursuant to a temporary entry permit, it was a neutral factor in each case. Each of the applicants came to Australia after contacting a Mr Choi, whom each had been informed could arrange his entry into Australia. Each paid Mr Choi several million Korean won, that is to say the equivalent of several thousand Australian dollars. Two of the applicants and other Koreans were accompanied to Australia by Mr Choi and the others by an accomplice of Mr Choi, named Chang. All were shepherded through Customs with the connivance of corrupt Customs officials. None of the applicants had a visa to enter Australia. Some or all held a visa to enter Taiwan, which they did not visit and some or all had a visa (whether valid or not) for the Phillipines or Papua New Guinea, countries which they did not

Mr Barlow contended that each of the applicants was an innocent victim of a dishonest migration agent, Mr Choi. Mr Barlow submitted that each of the applicants came to Australia on a business evaluation trip, intending to return to Korea. But, in the statements each of the applicants made to police officers, it was not suggested that any of the applicants discussed with Mr Choi his intention to come to Australia for a limited purpose or for a limited time. None of the applicants said that he

understood that Mr Choi was a migration agent or travel agent.

By way of example, I set out the following extracts from

the record of the interview which the applicant, Park Oh Ho, had

CHOI at the same tea room in the Chong Woo Hotel as arranged. CHOI told me about Australia, about the work in Australia that there was plenty of work in Australia. Also that anybody going to Australia before the end of July would be subject of an amnesty by Government. Also he say that if we have much money which we take to Australia we can be subject to the Business Immigration to Australia.

CHOI said: Bring your passport next time we meet as I want to check if it 1s a valid passport or not.

CHOI said: I am going to get the visa for Taiwan, then we

fly over to Hong Kong. In Hong Kong we are going to six months visa for Australia. I need money to get the visa for Australia when we arrive in Hong Kong.

CHOI said: I need about 3,000,000:00 won for all expenses to

CHOI said: If you willing to go with this price come to meet

On the 14th July, 1986 at 7PM, I and Mr. LEE went to the Tea Room in the Chong Woo Hotel where we met Mr. CHOI. I showed Mr. CHOI my passport which was valid and issued in Korea. I saw Mr. LEE show CHOI his passport.

CHOI said: These passports are good for travel. I can make

I said: That is impossible for me to leave on that date. I have my business commitments to look after.

I said: When will be the next time. CHOI: It will be the 24th July, 1986. I said: 'Ten days will be enough for me to look after my

CHOI said: I will take your passports with me. Meet me on the 17th July with the money at this place."

The statements made by each of the seven applicants to the police officers varied a little in detail, but each was consistent in the general structure and details. Having read the material which was, at various times, before the officers who handled this matter in the Department of Immigration and Ethnic Affairs, I am satisfied that it was open to the officers of the Department to decide, if they saw fit to do so, that each of the applicants entered Australia illegally, that each was aware that he was entering the country irregularly, that is to say either without a permit or by means of corruption, and that none entered the country merely

Mr Barlow laid emphasis upon the need for the Departmental officers to consider the individual circumstances of each of the applicants. However, the evidential : circumstances of each of the applicants were considered. Each applicant was dealt with separately and the particular facts

relating to him were taken into account. I am not satisfied

that there were significant differences between the cases such

that the decision-maker ought to have made a decision as to any one of the applicants different from the others. I am not suggesting that officers of the Department could not have distinguished between the applicants if they saw fit to do so. But, as differentiation between persons in a generally similar situation can lead to allegations of arbitrary and inconsistent decision-making, I am not surprised that like

decisions were made with respect to all the applicants.

The applicants were each arrested on 26 July 1986. Each was interviewed by an immigration officer, the interview being limited to placing a number of set questions to the applicant and recording short answers thereto. On 31 July 1986, an officer of the Investigations Branch of the Department of Immigration and Ethnic Affairs, Mr P.D. Scott, interviewed the applicants at the Villawood Detention Centre. Mr Scott obviously had in mind that the applicants might assist in the prosecution of Mr Chang and of the Customs officers who had been involved in their illegal entry and who had been arrested and also of Mr Choi, who was overseas. The precise details of the conversation are not important and, in any event, as it occurred through an interpreter at the Villawood Detention Centre, there could well have been some misunderstanding on both sides. Mr Scott stated in the course of that interview that the applicants had the alternative of returning or being returned immediately to Korea or, if they wished, of assisting the Police in the prosecutions, in which case consideration would be given to their release from the

Villawood Detention Centre and to the issue of work permits.

Each of the applicants appears to have gained the impression at that early date, 31 July 1986, that, if he cooperated with the Police, his release from the Villawood Detention Centre

and the issue of a work permit would be favourably considered.

The issue which Mr Scott raised so promptly was, nevertheless, not resolved until November 1986, and then not favourably to the applicants. In the meantime, the applicants

were kept in custody at the Villawood Detention Centre.

In early August 1986, each of the applicants was interviewed by a police officer and each gave a long statement to him. I have set out extracts from the statement given by Mr Park to Detective Sergeant Johnson of the Australian

On or about 8 August 1986, each applicant was given a

"It has been established that you are a prohibited non-citizen within the meaning of the Migration Act, 1958.

The question of your deportation will be put before a delegate of the Minister for Immigration and Ethnic Affairs. If you wish to put any material before the delegate apart from the information you have provided at interview you should put that material in writing and provide it close of business on 11 August 1986.

If you choose to make a formal application for grant of resident status your application will be assessed by an officer of the Residence Section and that assessment will be put before the delegate of the Minister who will determine your application and consider the question of your Deportation or further stay in Australia."

The applicants made no response to that letter, either because they had nothing to add or because they expected to be released from the Villawood Detention Centre and to stay in Australia if

they cooperated with the Police, which they were doing.

On 19 August 1986, Mr R. Wilson, Acting Assistant Director, Enforcement, forwarded to Mr J.R. Tushan, the Acting Director for New South Wales, Department of Immigration and Ethnic Affairs, statements setting out the position with respect to each applicant. Mr Wilson recommended in each case that no resident entry permit be granted, that the applicant not be given the concession of voluntary departure and that he be deported. On 20 August 1986, Mr Tushan adopted those recommendations and, on that day, he ordered that each applicant be deported from

Australia. I shall deal later in more detail with Mr Tushan's

provides that, "Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.", none of the applicants was in fact deported pursuant to Mr Tushan's order. Each of the applicants was kept in custody at the villawood

Detention Centre under s.39 of the Act which provides inter

"39.(1) Where an order for the deportation of a person is in force, an officer may, without warrant, arrest a person whom he reasonably supposes to be that person, and a person so arrested may, subject to this section, be kept in custody as a deportee in accordance with sub-section (6).

(6) A deportee may be kept in such custody as the Minister or an officer directs -

(a) pending deportation, until he is placed on board a vessel for deportation;

The reason for the delay in the deportations was that the Director of Public Prosecutions desired that the applicants remain in Australia to help with the prosecution of Mr Chang and of the Customs officers. On 29 August 1986, a letter from the Director of Public Prosecutions to the Regional Director, Department of Immigration and Ethnic Affairs, New South Wales, stated, inter alia, that all of the applicants were essential to the prosecution and that it would be unlikely that the prosecution would be finalised in less than 18 months. For some months thereafter there was no resolution of the applicants' position despite many attempts by the applicants to obtain a final decision. Ultimately, a letter was written on their behalf to the Prime Minister and the applicants threatened to go on a hunger strike unless a

On 18 November 1986, an officer of the Director of Public Prosecutions informed an officer of the Department- of Immigration and Ethnic Affairs that the Department was no longer obligated to hold up the deportations. That advice may have been given reluctantly for the Director of Public Prosecutions continued to seek the cooperation of the

applicants. Either a statement or evidence from each was

subsequently tendered at the committal proceedings which took place in mid 1987. Nevertheless, arrangements for the applicants' deportation were set on foot. Those arrangements were stayed after application was made in this Court for

orders of review with respect to Mr Tushan's decisions.

I return now to those decisions of 20 August 1986. There is not before the Court any statement from Mr Tushan of his reasons for decision but the submission put to him by Mr Wilson is some evidence of the factors which he took into

There are three grounds of challenge. One is that Mr Tushan adopted an improper procedure by adopting Mr Wilson's factual findings, reasoning and recommendations without independent consideration and deliberation. Mr Barlow relied upon comments made by Keely J. in Palko and Another v. Minister for Immigration and Ethnic Affairs (VG 371 of 1986 delivered 6 March 1987). However, there is no evidence that Mr Tushan merely adopted Mr Wilson's findings of fact and reasoning and there is no evidence that Mr Tushan did not give the matter his own personal attention and substantial

Another ground of attack is that each of the applicants was not provided with any real opportunity to be

heard on the issue of his deportation, as each understood from the conference with Mr Scott on 29 June 1986 that the question

of his stay in Australia for the purpose of giving evidence

against Mr Chang and the Customs officers was being considered. However, each of the applicants received the letter dated 8 August 1986 which stated that the question of deportation was being considered and which asked the applicant to put forward any material he wished to be taken into consideration. It is true that the letter was in the English language, not Korean, but the applicants were in custody at the Villawood Detention Centre where, I assume, assistance in interpretation could have been obtained 1f it had been required. The applicants had by this time been interviewed by an officer of the Department and by an officer of the Australian Federal Police. Their statements were full and described their personal circumstances and the circumstances in which they came to Australia. In my opinion, each of the applicants was given a fair opportunity to put forward the

matters that he wished to have taken into account. -

Another ground of contention is that Mr Wilson failed to disclose to Mr Tushan that Mr Scott "had made arrangements with the applicants concerning their remaining in Australia as Commonwealth prosecution witnesses and that their arrangements were awaiting Ministerial confirmation". I would not uphold the ground in these terms for Mr Scott's only arrangement with the applicants was that, if they cooperated with the police, their stay in Australia would be considered by senior officers of the Department of Immigration and Ethnic Affairs. However, the decision to deport was made at a time when the future of the applicants' stay in Australia for the purpose of the

prosecution proceedings was under active consideration by the

Office of the Director of Public Prosecutions and by officers of the Department of Immigration and Ethnic Affairs, including Nr Scott. This was not a matter referred to in Mr Wilson's

If Mr Tushan did not turn his attention to the issue whether the applicant should be deported pending the conclusion of the prosecution proceedings, then he did not turn his attention to a matter which was material not only to the applicants but also to the Australian community. The materiality ef the issue is shown by the fact that, once the Director of Public Prosecutions had written on 29 August 1986 to say that the applicants were essential witnesses for the prosectution, the applicants were thereafter held in custody at the Villawood Detention Centre until advice from the Director of Public Prosecutions consenting to their deportation was received. If Mr Tushan was not in fact aware of the discussions his officers were having with the Office of the Director of Public Prosecutions and therefore failed to give this matter his attention, then he failed to take into account a material consideration that was not but ought to have been brought to his notice, for it was a

material consideration known by officers of his department.

Having regard to Mr Tushan's position in the Department, however, I think it probable that he was in fact aware that officers of his Department were discussing this aspect of the matter with officers of the Director of Public Prosecutions. I therefore draw the conclusion that Mr Tushan made the deportation

orders under an error of law. When s.18 authorises the Minister

or his delegate to order that a person be deported from Australia, it does not authorise the Minister or his delegate to sign a deportation order unless the decision-maker has determined that the prohibited non-citizen shall be deported as soon as appropriate arrangements for his deportation can be made. A deportation order may not be made as a mere indication of a possible or likely future course of action. Once made, the deportation order may not be suspended. See Dallikavak v.

Minister for Immigration and Ethnic Affairs (1985) 61 A.L.R. 471

and Mahoney and Others v. Dillon (1987) 71 A.L.R. 395. Section 20 imposes the statutory duty that a deporation order be implemented "accordingly", that is to say according to its terms. Section 39 authorises the arrest and detention of the prohibited non-citizen pending deportation, but that is to say only for the purposes of deportation and during the period it may take to arrange deportation by means which are appropriate having regard

to the terms of the order and the circumstances of the case.

Having regard to the discussions which were on foot with the office of the Director of Public Prosecutions and to the unresolved issues as to the use to be made of the applicants in the prosecution, it appears to me that Mr Tushan must have had in mind that the deportation orders would serve to authorize the detention of the applicants and that the implementation of the

orders could be suspended pending resolution of the issues.

The deportation orders were made at a time when it was

not correct to make them, for the part which the applicants were

to play in the prosecutions was under consideration and had not

been determined. Whatever was Mr Tushan's actual reasoning, his decisions for the deportation of the applicants were flawed by

Mr Roberts submitted that, nevertheless, the Court should not make an order with respect to the deportation orders as the deportation orders were subsequently revoked on 8 February 1987. He submitted that, as the orders were no longer in force, there was no reason why an order of the Court should be made. He further submitted that, while the orders were on foot, officers of the Department had acted upon their authority and had kept the applicants in custody. He submitted it would be unfair to those officers that the legal authority for their actions, the

As the deportation orders had effect from 20 August 1986 until revoked on 8 February 1987, there exists a matter with respect to which an order of the Court may take effect. In deciding whether to make an order setting aside the deportation orders ab initio, I have regard to the nature and effect of the error in the decisions. In my opinion, the defect affecting the deportation orders was of such significance that the deportation orders should be treated as a nullity. Either Mr Tushan had a misapprehension as to the nature of the decisions which he had to make or he failed to turn his attention to an issue the resolution of which was crucial to the question whether the applicants should or should not be deported from Australia. As is shown by the judgment of Lord Pearce in Anisminic v. Foreign

Compensation Commission [1969] 2 AC 147 at p.195, a decision is a

nullity, "... iff the Tribunal asks itself the wrong questions (that is, questions other than those which Parliament directed it to ask itself) ...". The present is not a case in which the decision-maker genuinely dealt with the substance of the matter that called for consideration. A decision to deport the applicants could not sensibly have been taken until such time as the part which the applicants were to play in the prosecution had been resolved. Either Mr Tushan misunderstood the decision which he had -to make or he failed to turn his attention to a matter of fundamental importance to that decision. In these circumstances, I am of the view that the deportation orders should be set aside

The decisions to refuse to each of the applicants the option of voluntary supervised departure were next attacked. I do not regard voluntary departure as a matter for separate decision but simply as an alternative to be considered. In any event, there was no breach in the rules of natural justice insofar as that matter was concerned and the substance of the matters bearing upon it, as an alternative to deportation, were before Mr Tushan and considered by him. In the course of his address, Mr Barlow referred to some passages of a departmental manual bearing upon voluntary supervised departure and submitted that, having regard to the innocence of the applicants, it was inconsistent with departmental policy not to grant the applicants this concession. However, the precise words used in the policy statement should not be read with an eye to technicality. The statement was a guide only. The matter was one for the

consideration and judgment of the decision-maker, Mr Tushan. I

The next decisions attacked were described as decisions that "the applicant be detained in custody pursuant to s.39 of the Migration Act 1958". The date of the decisions was given as 20 August 1986 to 2 December 1987. Although it may be assumed from the fact that the applicants were kept in custody that directions must have been given pursuant to s.39(6) of the Act, the evidence does not disclose what decisions were taken or when they were taken or by whom or even whether the decision-makers were officers of the Department of Immigration and Ethnic

Affairs. The term "officer" is given a wide definition by s.5(1)

These proceedings are not an action for unlawful imprisonment. If they were, 1t could well have been sufficient to prove the detention and to put forward grounds tending to show that any decisions authorising the imprisonment must have been taken for an improper purpose. But, these proceedings seek orders of judicial review with respect to decisions. In the absence of identification as to the date and terms of decisions and to who was or were the decision-maker or decision-makers, it is not appropriate that any order by way of judicial review should be made. I therefore do not consider these decisions

The next decision attacked in each case is described: "The deportation order signed on 20 August 1986 be suspended or

not be executed. (Date of decision: 20 August 1986 to approx 24

November 1986)". Mr Barlow relied upon the fact that the deportation orders were not implemented immediately and that it was not until late November 1986, after the Director of Public Prosecutions had agreed to the deportation of the applicants, that administrative arrangements for the deportations were put in train. Mr Barlow submitted that the decisions should be inferred. On that point I make no finding. It would not be proper for the Court to make an order by way of judicial review with respect to decisions the terms of which are unknown, the date of which is unknown and the identity of the decision-maker

Mr Roberts submitted that, in any event, any such decision was not a decision "under an enactment" and was not susceptible of review under the ADJR Act. He relied upon

Dallikavak v. Minister for Immigration and Ethnic Affairs, cited above, and Mahoney and Others v. Dillon, also cited above,

Undoubtedly, there are remarks in the judgments in those cases which support that submission. But the remarks should, I think, be read in the light of and as referable to the particular issues which were raised in those cases. When considering the meaning of the expression "made in the exercise of powers conferred by

that enactment" in s.25(1) of the Administrative Appeals Tribunal

Act 1975 (Cth), a majority of the Court, Bowen C.J. and Smithers J., Deane J. dissenting, held in Collector of Customs (NSW) v.

Brian Lawlor Automotive Pty Ltd (1979) 41 F.L.R. 338, that a

decision made in purported exercise of a power under an enactment was a decision under the enactment, though when the legislation

was properly construed, it did not authorise the making of the

decision. The reasoning in that case applies equally to the words "under an enactment" in s.3 of the ADJR Act. I do not read

Dallikavak v. Minister for Immigration and Ethnic Affairs or

Mahoney and Others v. Dillon as challenging that view.

Thus, if a decision that an order for the deportation of a person be suspended were made in the purported exercise of a power mistakenly thought to be implied in s.20 of the Act, that

person would be entitled to apply to the Court under s.5 of the

ADJR Act for an order setting aside that invalid decision and

directing that the deportation order be carried into effect.

In the present case, however, such a decision has not been proved. I uphold Mr Roberts' submission only on the basis

that here, as in Dallikavak v. Minister for Immigration and

Ethnic Affairs, no actual decision purporting to have been made under s.20 of the Act suspending the deportation order has been identified. In that sense, there is no decision "under an

enactment" to review. This conclusion adds little to the view I

The next decisions attacked are decisions that the deportation orders signed on 20 August 1986 be reinstated and executed. The date of these decisions is given as approximately 20 November 1986. I need say little about these decisions, which are identified only by reference to the steps which were taken to implement the deportation orders. Those steps taken to implement

the deportation orders were stayed upon the bringing of the

proceedings in this Court. The deportation orders themselves were

revoked on 8 February 1987. Thus, there remains no further Matter in respect of which an order of the Court ought to be made. I should add, however, that as the deportation orders had issued, it was the duty of officers of the Department of Immigration and Ethnic Affairs to attend to their implementation and there was no error in their doing so. Mr Roberts also

submitted, relying upon Dallikavak v. Minister for Immigration

and Ethnic Affairs and Mahoney and Others v. Dillion that there

the decisions were not subject to review under the ADJR Act. These authorities decided that, once a deportation order was made, the only relevant decision authorised by the Act thereafter, other than a decision for revocation, was a decision giving effect to that order. The Act confers no power to suspend a deportation order and no power to reinstate a deportation order. A deportation order does not lapse or become ineffective through lapse of time, as s.20(2) of the Act provides. In the

present case, as in Mahoney and Others v. Dillon, the particular

arrangements made for the deportation were not challenged and there was no other decision made or purportedly made under powers conferred by the Act. In that sense only, there was no decision

The next decisions in issue are the decisions that "the applicant as a deportee in custody be required to pay maintenance'

costs pursuant to ss.21A(7) of the Migration Act 1958 at the rate of $37.00 per day from the 20 August 1986 to the 2nd December

"(7) Where a person in respect of whom a deportation order has been made is kept in custody in a State or Territory under this Act pending his deportation from Australia, the person is liable to pay to the Commonwealth, in respect of the cost to the Commonwealth of keeping and maintaining him while he is so kept in custody, for each complete day in the period during which he is so kept in custody, an amount equal to the amount determined by the Minister, by notice published in the Gazette, to be the daily maintenance amount in respect of that State or Territory."

Demands were made of the applicants for the payment of maintenance charges accrued during their detention in the Villawood Detention Centre. It is not necessary for me to consider whether the demands would be a reviewable decision under the ADJR Act, if they were independent of other issues in the proceedings. I have come to the conclusion that the deportation orders of 20 August 1986 should be set aside ab initio. It follows that the maintenance charges should not be levied for the custody dependent upon that deportation order. An appropriate ancillary order to make is to declare that the

maintenance charges are not payable by the applicants.

The next decisions for review are those of 8 February 1987. The decisions were made by Mr W.A. McKinnon, Secretary, Department of Immigration and Ethnic Affairs. In addition to the decisions under review, Mr McKinnon ordered that the

As to the decisions that each of the applicants be deported from Australia, the first ground of attack was that

the applicants and their solicitor were not notified that the

making of new deportation orders was being considered. However, by letter dated 2 December 1986 the applicants' solicitors were advised that the decisions of 20 August 1986 were being reconsidered and that, inter alia, submissions in relation to the reconsideration of the Department's decision to deport the applicants should be lodged with the Department. Subsequently, formal applications for resident status were lodged by each of the applicants and the applicants' solicitors wrote to the Department of Immigration and Ethnic Affairs. In my opinion, an adequate opportunity was given to the applicants to put all that they wished to put with respect to the question of their deportation, and indeed also with

respect to the other matters which were considered on 8

Secondly, it was alleged that there was bias on the part of departmental officers because the applicants' solicitors had indicated that they proposed to sue the Minister for Immigration and Ethnic Affairs in the Supreme Court of New South Wales for damages for unlawful imprisonment and had forwarded to the Department a copy of the proposed statement of claim. But no element of bias arises, The applicants were seeking reconsideration of the deportation orders and other decisions made on 20 August 1986 and that reconsideration could be undertaken only by officers of the Department of Immigration and Ethnic Affairs who were delegates of the Minister. There was no special bias on the part of Mr McKinnon and, indeed, the evidence does not

disclose that he played any part in the earlier events. The

alleged unlawful detention was one of the matters that the applicants sought to have taken into account as a relevant factor. No bias appears in the fact that Mr McKinnon undertook the reconsideration which the applicants sought and took into account factors raised for consideration by the

The next ground of attack is that the decisions were based on substantial factual errors. However, the submissions which were put to Mr McKinnon by Mr A.E. Faubel, Director, Enforcement II Section, put the matters for consideration

fully and fairly. Mr Barlow complained of passages of which

"With respect to the above matters you might consider that:

. Mr Park was firstly detained on 26 July 1986 as an illegal immigrant who had avoided immigration entry procedures and requirements;

. 1t is not an insignificant offence against the law, in terms of the maximum penalties provided under Section 27(1) of the Migration Act, to become a prohibited non-citizen in the way Mr Park has done so;

. Mr Park's claim to be an innocent victim of an illegal migration racket might be considered in the light of the statement he made to the AFP on 4 August 1986 in which he indicated he was aware that some of the money he paid to arrange his entry, was required for an official at Sydney Alrport;"

Mr Barlow submitted the matter ought to have been considered on the basis that the applicants were innocent dupes of an unlawful

migration racket. I have already indicated my view that it was

open to officers of the Department of Immigration and Ethnic Affairs to take a more serious view of the applicants'

Mr Barlow further complained of some of the comments in a report which has been made by Mr Paul Vanderhaar, Senior Investigator, Internal Investigations, with respect to a complaint made by the applicants against Mr Scott. Mr Barlow submitted that Mr Vanderhaar formed an unfair and wrong view of the applicants' behaviour. I do not need to examine Mr Vanderhaar's report in any detail. It was simply one of the background papers which was listed in Mr Faubel's submission to Mr McKinnon and which accompanied those submissions. The statements in Mr Vanderhaar's report, of which Mr Barlow complained, were not repeated in those submissions. In his decisions, Mr McKinnon did not adopt the statements made in Mr Vanderhaar's report. In my opinion, the findings of fact which Mr McKinnon made were findings that were open to him on the material before him. In the course of the address, Mr Barlow submitted that there was a breach of the rules of natural justice in that Mr Vanderhaar's report was not given to the applicants and they were not invited to correct any errors they found therein. But Mr Vanderhaar's investigation was an internal inquiry concerning the part Mr Scott played at the time of his interview on 31 July 1986. Mr Vanderhaar absolved Mr Scott of the criticism which the applicants have made of him. There was no obligation on the part of the Department to refer that report to the applicants. The applicants received natural justice in

that those who had complained of Mr Scott were interviewed by

Mr Vanderhaar and were given an opportunity to put their view

Another ground of attack was that the decisions to deport the applicants were unreasonable. In my opinion, the decisions were ones which a reasonable decision-maker could have made and they were not inconsistent with any departmental policy.

The procedure which Mr McKinnon adopted, namely to adopt as his findings of fact and reasons the findings of fact and reasons set out in Mr Faubel's submission, was not specifically referred to by Mr Barlow in his address, though this would have been a more appropriate occasion for the submission on the matter than was the earlier decision of Mr Tushan. However, as the application for review mentions s.5(2)(e) of the ADJR Act, I should state that I reject the ground of attack. The adoption of the practice, which was criticized in the Palko and Another v. Minister for Immigration and Ethnic Affairs, does not, without more, lead to the inference or conclusion that the decision-maker -did not turn his own mind to the decision and make the decision for the reasons which appear expressly or by implication from the statement of reasons given under s.13 of the ADJR Act. In the present case, I accept that Mr McKinnon turned his own mind to the decisions which he made and that his reasons therefore may be

sought is that the applicants be refused the concession of

voluntary supervised departure. These were not, I thank, separate decisions but simply an alternative which was properly considered with other matters when consideration was given to the deportation of the applicants. Mr Barlow contended that the applicants were not given an opportunity to put submissions with respect to this issue. 'However, they were given adequate notice that the issue of deportation would be reconsidered and they were given an opportunity to put forward any submissions that they wished. In the circumstances, there was no breach of the rules of natural justice. Comments which I have made with respect to

the like decisions on 20 August 1986 apply equally here.

Mr Barlow also submitted that there was an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. However, the

individual circumstances of the applicants were fully considered.

The next decisions in issue were that each of the applicants be refused a work permit, that each of the applicants be refused the grant of a temporary entry permit and that each of the applicants be refused a grant of resident status. It was submitted that the decisions in this respect were based upon serious, substantial and material factual errors concerning the background and character of each of the applicants. However, as I have already stated, no error in Mr Faubel's submissions was identified. The material before Mr McKinnon did not suggest that the applicants had been convicted of entering Australia illegally, that any of the applicants had any other criminal

conviction or that any were not persons of good repute in their

homeland, Korea. There is no reason to conclude that Mr McKinnon thought the contrary. Mr Faubel''s submissions made it clear that each of the applicants claimed that he was an innocent victim of an immigration racket, who had intended to visit Australia for a business evaluation trip and who had intended to return to Korea. These matters, the personal circumstances of each of the applicants in Korea and the circumstances in which they had been held at the Villawood Detention Centre in Australia since 20 July 1986 were all before Mr McKinnon when he made his decisions. It does not appear to me that Mr McKinnon took into account any irrelevant consideration or failed to take into account relevant considerations or that he exercised his power in a way that

It was further contended that no consideration was given to the compassionate and humanitarian aspects of the applicants' circumstances including the physical, mental, emotional and financial effects of the long period of their detention for non-migration purposes and their valuable contribution to the law enforcement interests of the Commonwealth. However, the circumstances surrounding the applicants' detention were before Mr McKinnon. They were referred to in many places in Mr Faubel's submissions. Mr McKinnon had before him the statement of claim in the Supreme Court proceedings and copies of letters written by Mr Barlow to the Department and to the Prime Minister. These matters were specifically mentioned by Mr Faubel as circumstances that the applicants wished to be taken into account in their favour. In rejecting the grant of resident status, Mr McKinnon

took into account, as he was bound to do, that s.6A requires of

an applicant for a grant not only that there be strong compassionate or humanitarian grounds but also that the applicant be the holder of a temporary entry permit. None of the

It was further submitted that Mr McKinnon failed to take

into account that the applicants, if deported to Korea, would suffer unlawful, arbitrary or otherwise improper detention in Korea. However, apart from a claim to this effect made by the applicants' solicitor in a letter regarding Lee Jae Eun, there was no evidence to that effect or, indeed, any evidence that Lee Jae Eun was so treated on his return to Korea. Mr Faubel specifically raised for Mr McKinnon's consideration the claim that each of the applicants would not be able to readjust to life

I shall therefore set aside ab initio the deportation orders of 20 August 1986 and shall declare that the maintenance charges demanded are not payable by the applicants, but shall otherwise dismiss the applications. As the applicants have succeeded in part but failed with respect to other and important parts of the claim I think that the proper order as to costs is

that each party should bear his own costs of the proceedings.

I certify that this and the 33 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Davies.

Counsel for the appellants: Mr B.J. Camilleri Solicitors for the appellant: Mr N.L.A. Barlow Counsel for the respondent: Mr P. Roberts

Solicitor for the respondent: Australian Government Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (194 paragraphs)

Legislation Cited (5)

Cited By (1)