Supreme Court of the NT|1988-03-11|Before: Sheppard J

Ian John Lewis v Minister of Immigration, Local Government & Ethnic Affairs, Commonwealth of Australia and John Henry Bohning [1988] NTSC 16; 89 FLR 218 (11 March 1988)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Asche C.J.(1) CWDS Migration Act - ss. 18, 20 and 39(6) - Deportation Order - whether Minister under duty to deport immediately - whether Minister may delay execution of deportation order once served. Migration Act - Commonwealth power - issue of deportation order not inconsistent with power of State or Territory to commence and continue criminal proceedings against deportee - such power ceases only on execution of the order. Cases applied: Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395 Znaty v Minister for Immigration [1972] HCA 14; (1972) 126 CLR 1 Pochi v Macphie [1982] HCA 60; Cases considered: Dallikavik v Minister for Immigration and Ethnic Affairs Re Frearson Re Ozsayin Cases referred to: Re Poll Piroglu v Minister for Immigration and Ethnic Affairs ; Blunk v Minister for Immigration and Ethnic Affairs ; Kioa v The Minister for Immigration and Ethnic Affairs ; Bird v British Celanese Limited Re Chhinda Singh-Dhillon v John Richard Mahoney (unrep 9/10/86 Sheppard J.) Mahoney v Dillon (1987) 71 ALR 395 HRNG DARWIN #DATE 11:3:1988 Counsel for the Plaintiff: C.R. McDonald Solicitor for the Plaintiff: Australian Legal Aid Office Counsel for the 1st G. Hiley QC and 2nd defendants: Solicitor for the 1st Australian Government Solicitor and 2nd Defendants: Counsel for the 3rd Defendant: T. Pauling QC Solicitor for the 3rd Defendant: Solicitor for the NT ORDER These proceedings should be dismissed as against all defendants. JUDGE1 By Writ and Statement of Claim in proceedings No. 44 of 1988 issued 22 January 1988 the plaintiff a citizen of New Zealand seeks by way of declaration and other relief against the Minister of State for Immigration, Local Government and Ethnic Affairs and against the Commonwealth of Australia that a Deportation Order dated 30 September 1987 and served on him early in October 1987 be implemented. The third defendant is a servant of the Northern Territory being the Superintendent of the Alice Springs prison wherein the plaintiff is presently held. 2. By Summons filed 7 January 1988 in proceedings No. 3 of 1988 the same plaintiff seeks as against the third named defendant a Writ of Habeas Corpus. Those proceedings have been stood over pending the hearing of proceedings No. 44. 3. In a country where frequent applications are made to the Courts to stay the operation of deportation orders, a demand by the person served that he be deported forthwith has at least the merit of novelty. The explanation is not far to seek, since the plaintiff is presently in a Northern Territory gaol awaiting trial for various indictable offences alleged to have been committed by him in the Territory. I do not think I am being over-cynical if I take what seems to be the obvious view that immediate deportation gives the plaintiff the opportunity to be sent out of Australia without facing those charges, or possible sentences of imprisonment if convicted. No doubt he would take his chances on whether any efforts would be made to extradite him once he had reached his native shores. The reductio ad absurdum would be when he called to aid the deportation order as a potent defence to extradition proceedings. 4. However, having made those observations, I bear in mind that the plaintiff has not pleaded guilty to any charges, that he is innocent until proved guilty, that his motives in bringing these proceedings are irrelevant if he establishes the right which he claims, and that a serious question, not involving liberty of the subject, since he is not a subject, but certainly involving liberty of the individual is at issue. No doubt an Australian citizen placed in a similar position in a foreign country, and whether he was innocent or guilty of the charges there levied against him, might well act similarly; and the plaintiff deserves no less consideration. 5. All counsel engaged in the case have agreed on the facts and I can do no better than set out the Statement prepared by them. STATEMENT OF AGREED FACTS

kind referred to in that sub-section. NOW I, JOHN RICHARD MAHONEY, Assistant Secretary, Compliance Branch, Department of Immigration, Local Government and Ethnic Affairs, and delegate of the Minister of State for Immigration, Local Government and Ethnic Affairs, DO HEREBY ORDER, pursuant to section 18 of the Migration Act 1958, that the said IAN JOHN LEWIS be deported from Australia." 6. To the above Statement of Agreed Facts I should add certain other matters to clarify the questions I must determine. 7. Section 16(1)(c)(iii) of the Migration Act, referred to in paragraph 4 of the above Statement, provides that where a person who enters Australia is not an Australian citizen, and at the time of entry was a person who had been convicted of 2 or more crimes and sentenced to imprisonment for periods aggregating not less than 1 year, he shall be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognises him to be a person referred to in s. 16(c). It is conceded that the plaintiff has had periods of imprisonment in New Zealand which cumulatively total more than 12 months. (Para 11 of plaintiff's affidavit sworn 14 December 1987). It is conceded that the plaintiff does not hold the requisite permit and it is conceded that he is a prohibited non-citizen. 8. The explanation as to why the plaintiff was not, on his entry to Australia, asked about his prior convictions is given in the affidavit of Mr McLoughlan, an officer of the Department, sworn 8 February 1988, that it is not the general practice to ask these questions of incoming passengers from New Zealand; a piece of trans-Tasman courtesy which no doubt repays overall in goodwill the occasional difficulties created by a case such as the present one. 9. By s. 18 of the Migration Act the Minister may order the deportation of a prohibited non-citizen. He has so acted in this case. 10. The plaintiff is held in custody in two ways, as appears from the affidavit of Mr Bohning the Superintendent of Her Majesty's Gaol at Alice Springs. First in point of time are warrants issued after the arrest of the plaintiff under the Justices Act of the Northern Territory that he be kept in gaol pending the disposition of the various indictable offences alleged against him. Although the two warrants annexed to Mr Bohning's affidavit are dated 27 November 1987 and 3 February 1988 respectively, I am assured that earlier warrants had been issued dating from the arrest of the plaintiff in August 1987. This must be the case since the plaintiff has remained in custody since then and bail was refused on 28 August 1987 by the Stipendiary Magistrate at Alice Springs. 11. The second basis upon which the plaintiff remains in gaol is the Direction issued by the Immigration authorities on 30 September 1987 to the Superintendent, Alice Springs Prison pursuant to s. 39 of the Migration Act. S. 39(6) of that Act provides that a deportee (who is defined in s. 5 as "a person in respect of whom a deportation order is in force") may be kept in such custody as the Minister or an officer directs. The full text of the Direction is as follows:- "DIRECTION TO HOLD IN CUSTODY To Superintendent Alice Springs Prison ALICE SPRINGS NT WHEREAS I JAMES WILLIAM McLOUGHLAN an officer for the purposes of the Migration Act 1958 AND WHEREAS IAN JOHN LEWIS is a deportee as defined in the said Act: NOW, in pursuance of the powers conferred upon me by Section 39 of the said Act I DIRECT that the said IAN JOHN LEWIS be kept in your custody pending deportation from Australia. Dated this 30th day of September 1987." 12. It is conceded by Mr McDonald for the plaintiff that the Commonwealth power of deportation is not in question Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395 at 405, 415, 418-419: Pochi v Macphie [1982] HCA 60; (1982) 151 CLR 101 at 106. I think Mr McDonald would also concede that, up to 30 September 1987, which was the date of the issue of the Deportation Order and of the above Direction, the plaintiff was lawfully detained as the result of the Northern Territory Warrants and the refusal of bail on 28 August 1987; and there has been no appeal from such refusal. 13. It is, however, one of his submissions, that since 30 September 1987, the power of the Northern Territory to hold the plaintiff pursuant to the warrants, and to continue criminal proceedings, has ceased; because the Commonwealth, has acted under the Migration power and issued the order for deportation and has evinced an intention to cover the field; and the matter is not now within the jurisdiction of the Northern Territory. That argument, however, confuses issue with execution. It is not denied that the Minister could execute the order at any time and the Northern Territory would be bound to comply. But until such time there is nothing inconsistent with the criminal processes of the Northern Territory continuing; and it is the expressed intention of the Commonwealth, that those processes continue to resolution. (Paragraph 10 of the Statement of Agreed Facts). Nothing in the Deportation Order or the direction to the Superintendent at Alice Springs is inconsistent with that intention. 14. Mr McDonald submits that the Deportation Order should not and cannot be delayed. He refers to Dallikavikv Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471 at 474 where their Honours Northrop and Pincus JJ. comment that "Some may think it undesirable that, without any limit as to time, the Minister should be enabled to leave in a legal limbo persons against whom a deportation order is in force". However their Honours do not suggest that they are laying down any principle capable of enforcement in the courts, and in the next sentence they say: "It does not seem appropriate, however, for us to go into that question at any length, for we have come to the conclusion that considerations of that sort are a matter for Parliament and not for us." 15. In any event the principle or desideratum stated by their Honours does not, in my view, apply to the present situation. The plaintiff is not in the "legal limbo" referred to by their Honours. I take that expression to mean that a person is being held for deportation for an unconscionable time without any proper reason for the delay. Here the plaintiff is being lawfully held under the lawful processes of the criminal law of the Northern Territory. Vis a vis those processes his position is no different from that of any other person charged with indictable offences and awaiting trial in any Australian State or Territory. It is difficult to accept that the issue of a Deportation Order automatically excludes a deportee from prosecution for crimes against the laws of a State or Territory of Australia; and I do not accept it. 16. The issue simply comes down to this:- Can the Minister, or his delegate, having issued a deportation order, delay the execution of that order to enable pending criminal proceedings to be concluded; and further delay the execution of that order in the event that those proceedings result in the conviction of the deportee and the imposition of a term of imprisonment? 17. Mr McDonald for the plaintiff puts the following arguments:-

The words of s. 20(1) of the Act are simple and unequivocal and cast a duty upon the Minister to act. Hence once the order is made the deportee "shall ... be deported accordingly." He refers to the remarks of Beaumont and Gummow JJ. in Mahoney v Dillon (1987) 71 ALR 395 at 401:- "In its terms s. 20(1) contemplates, indeed requires that, unless revoked, the deportation order will be complied with".

The Act gives the Minister power to revoke a deportation order: s. 20(1). That is not to the point here for the Minister has not exercised that power. But the Act gives the Minister no express power to suspend the order. And none can be implied. Dallikavik v Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471 at 475 (per Northrop and Pincus JJ.): at 481 (per Jenkinson J.).
Nothing in the deportation order or the direction to the Superintendent at the Alice Springs prison suggests that deportation is contingent upon the criminal proceedings in the Northern Territory. Both the order and the direction speak directly of deportation or pending deportation; as they should. The power conferred is to deport or not to deport. There is no half-way house. The Minister's express intention (para 10 of the Statement of Agreed Facts) to deport the plaintiff after the resolution of the criminal proceedings and any subsequent sentence of imprisonment which might occur is, in effect, an intention to suspend the order or a failure to carry out its terms; and hence, a failure to carry out the intention of the Act.
S. 20(2) of the Act which states that "the validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order", is not meant to give the Minister a power to delay indefinitely the execution of the order. Rather is it directed to circumstances where the deportee has evaded or prevented the execution of the order, (as for instance by going into hiding) and then relied upon lapse of time as a ground for invalidating the order.
As to the first of these arguments I would agree that the words of s. 20(1) imply that the Minister, having issued a Deportation Order, should act upon it. But the Minister is not limited to time. The expression "shall ... be deported accordingly" does not suggest that the deportee must be deported "immediately" or "forthwith". In the Canadian case of Re Poll (1937) 3 WWR 136 (cited in Dallikavik v Minister (supra) at p 475) the Statute provided that upon the making of a Deportation Order the deportee "shall be deported forthwith", and the Canadian Court held that the Immigration authorities had no power to make an order "which they can call up whenever they see fit and under which they can deport this man if they see fit at any time". The term "accordingly", however, does not imply restriction as to time but as to manner of execution; and in the Commonwealth Statute the word in my view means no more than "according to the tenor of the order". The order itself merely states that "the said Ian John Lewis be deported from Australia". I see nothing in the section or the terms of the order to limit the time within which the order should be carried out, or to fetter the Minister's discretion as to when it should be carried out. Whatever may be the situation if the Minister can be shown to have acted in an arbitrary fashion or to have failed properly to exercise his discretion, (not, in my view, shown here) there are obvious circumstances when it could be said that delay in execution of a deportation order was reasonable and just. For instance, to allow the deportee to challenge the validity of the order, or to bring other matters to the notice of the Minister, or to review his decision under the Administrative Decisions (Judicial Review) Act. In Piroglu v Minister for Immigration and Ethnic Affairs [1981] FCA 78; (1981) 55 FLR 99 undertakings were given by those representing the Minister that a deportation order would not be executed pending the hearing of an application by the deportee to review the decision under the Administrative Decisions (Judicial Review) Act. See also Blunk v The Minister for Immigration and Ethnic Affairs [1983] FCA 6; (1983) 66 FLR 6 at 12 where the undertaking was that no step would be taken to deport the applicant without giving at least 72 hours notice to his solicitors. I note in Kioa v The Minister for Immigration and Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 that the deportation order was made in October 1983 but Mr and Mrs Kioa remained in Australia until the ultimate decision of the High Court in December 1985 when the order was set aside. So far as appears in the reports no formal steps were taken to delay the execution of the order; it being no doubt assumed that it was sufficiently within the Minister's power to do so. So, in this case, if it is necessary for the Minister to establish some reasonable ground for delay (in my view not an essential requirement in these proceedings although a different situation may apply in proceedings under the Administrative Decisions (Judicial Review) Act), then it seems to me essentially reasonable to delay the execution of the order until the hearing and determination of criminal proceedings.
The crux of the argument for the plaintiff seems to be that the Minister should not issue a deportation order against any person until he (the Minister) is assured that the order can be carried out immediately or almost immediately. As I follow the submission in this case it is put that the Minister, having been informed that the plaintiff was a prohibited non-citizen, had to take one of two courses: either issue the order before the completion of the criminal proceedings; in which case he must execute it forthwith; or to wait until the conclusion of the criminal proceedings and then again execute it forthwith. I fail to comprehend as a matter of principle why the Minister should be so restricted. Not only may there often be practical difficulties in finding a deportee if criminal proceedings pending against him fail, or if he is granted bail; but it would seem fairer to such a person as soon as a decision is taken as to deportation to let him know it. I cannot see how this could be considered the denial of natural justice which it is alleged to be. I have a, perhaps unworthy, suspicion that if, in this case, the Minister had waited until the conclusion of the criminal proceedings before issuing the deportation order, complaints, either to this court or some other tribunal, would be made that the Minister had acted in breach of the principles of natural justice by not informing the plaintiff earlier of his decision, and thereby raising false expectations that the plaintiff would be allowed to remain in Australia.
I have been referred to certain remarks of Davies J. in Re Frearson (1983) 5 ALN 256 and to some comments on those remarks by Deputy President Hall in Re Ozsayin (1985) 8 ALN 273. Those remarks seem to me basically concerned with the possible injustice created in those cases where it is uncertain whether or when a deportation order will be executed. If a person faces a possibility but not the actuality of deportation for a long period due to this uncertainty that may well create an injustice. But that is not the case here where the intention to execute the order has been made quite clear. I note also that Davies J. in Re Frearson while expressing the above concerns nevertheless observed that there was nothing in s. 13 (since repealed) and 20 of the Act to indicate that a deportation order would lapse if not executed promptly.
I would not, therefore, disagree with the remarks of Beaumont and Gummow JJ. as already quoted to the effect that s. 20(1) require that the deportation order be complied with. There is nothing in the present order which suggests that it will not be complied with after the happening of certain events.
As to the second argument I must agree with Mr McDonald that delaying the order has much the same effect as suspending it. However suspension means a temporary cessation of an order during which the rights and obligations of both the Minister and the plaintiff would cease to operate c.f. Bird v British Celanese Limited (1945) K B 336 per Scott L.J. at 341. To delay has a very different effect, as the order continues in operation, and its execution and the time of execution remains in the discretion of the Minister. Under these circumstances delay is not equivalent to suspension whatever may be said to be the practical similarities.
The third argument is, I think, covered by the matters I have already discussed.
The argument relating to sub-s. 20(2) of the Act does not, I consider, affect the position either way for it is not put that the order is invalid. Rather is it put that the order is not only a valid order but one which should be and must be enforced. However the presence of s. 20(2) may assist the case for the defendants in this sense that it contemplates that there can be delay in execution. I note that in Re Chhinda Singh-Dhillon v John Richard Mahoney and Ors (unrep 9 October 1986) Sheppard J. observed: "Sub-section 20(2) of the Act indicates that the execution of a deportation order may not be an automatic affair." Later in his judgment His Honour said: "Unlike the decision to make the deportation order whereby the applicant would be deported, the decision to execute the order involves a continuing process. The order may be executed at any time. The fact that the reason why it has not been executed is because of a stay of proceedings granted by this court in May last is not to the point. Just as it would be lawful for the Department, although a deportation order were in existence, to leave it in abeyance until a deportee was fit to travel, so, in my opinion, would it be lawful to delay its execution until a deportee in the position of the

applicant here had had an opportunity of prosecuting his claim. This course was adopted by Lockhart J. in Laremont v Minister for Immigration and Ethnic Affairs (6 December 1985, unreported)." 25. Although His Honour's judgment was reversed on appeal see (Mahoney v Dillon (1987) 71 ALR 395) it was not reversed on any grounds relevant to these comments and no disagreement with them was expressed by their Honours of the Full Court of the Federal Court. In the view of the Full Court the appeal succeeded because the learned trial judge had purported to review a decision, not to deport the appellant, but to execute that decision to deport, and there was no evidence that this second "decision" i.e. to execute the order, had been made. The evidence only went to correspondence by the respondent's solicitors seeking that the Minister delay the execution of the order. 26. That the discretion of the Minister is a broad one is shown in Znaty v Minister for Immigration [1972] HCA 14; (1972) 126 CLR 1 a majority decision of the High Court. There Walsh J., with whose decision McTiernan and Owen JJ. agreed (contra Barwick C.J. and Windeyer J.) said at p. 8:- "In my opinion the Minister may determine the way in which a deportation order is to be carried out and may choose the vessel or aircraft in which the deportee is to leave the country." 27. At p. 9 His Honour said:- "But I do not find anything in the Act which warrants the conclusion that where a prohibited immigrant, against whom a deportation order is made offers to leave the country at a time and in a manner proposed by him and, in fact, available to him, the Minister is without power to make his own decision and give effect to the deportation order in a way which seems to him proper, including the selecting by him of the time at which and the manner in which the deportee should leave the country." 28. In the circumstances of this case nothing is shown to establish that the Minister or his delegate, having issued and served a deportation order against the plaintiff, was or is under any duty or obligation to deport the plaintiff immediately; or at any rate before the completion of criminal proceedings or any sentence served as a result of being found guilty in such proceedings. 29. These proceedings should be dismissed as against all defendants.

Ian John Lewis v Minister of Immigration, Local Government & Ethnic Affairs, Commonwealth of Australia and John Henry Bohning [1988] NTSC 16; 89 FLR 218

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Judgment (5 paragraphs)

Ian John Lewis v Minister of Immigration, Local Government & Ethnic Affairs, Commonwealth of Australia and John Henry Bohning [1988] NTSC 16; 89 FLR 218 (11 March 1988)

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Cases Cited (8)