JOHN DURRELL v RAFET ARSLAN and EROL AYDIN

S255 of 1983 Coram: Sweeney, St. John and Morling JJ.

IN THE FECERAL COURT OF AUSTRALTA } Noc. G25l of 1362 } 3252 cr 1922 = = = le GF aen NEW SOUTH WALES DISTRICT PEGISTRY ' CBEl oF LDS? , StTE5 of 1923 SEUDPAO DIVISION ) BETEGN . DUE MINISTER 2F' S'RATE FOr IMMIGRATION AND EXHMNIC APFATRE Am TON DISTT Agpellants SND: RATE? ARSLAN anit Enth Vt7T Tar hestondants D z JUDGES MATING ORDEP . Gyweeney, Th. Tohn ari Mocling of. : 17 August Loess

=+ weet GEPSAL7 SD Al. iva. ca) a opeessende che wre mee maa 7s 2 wanes ue Tra visscndants way Tas aceslle.te Jl505.

IN THE FEDERAL COURT OF AUSTRALIA Nos. G251 of 1983

) ) G252 of 1983 NEW SOUTH WALES DISTRICT REGISTRY ) G253 cf 1983 )

BETWEEN : THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS AND JOHN

BURRELL Appellants AND: RAFET ARSLAN and EROL AYDIN Respondents CORAM: SWEENEY. ST. JOHN, and MORLING Jd. DATE PLACE. SYDNEY

These appeals are against 423cisions or a judqde of the Court im which he set aside, on applicatisns made under the

Administrative Decisions (Judicial Review) Act 1977 ("the

Judicial Review Act") decisisns made by the appellant ¢shn Durrell (an officer of the Department of Immigration and Ethnic

Affairs) refusing to qgrant further temporary entry permits

pursuant to s. the Migration Act 1353 to tne resscondcnts

State for Immigration and Ethnic Affairs to deport the

The facts are set out in his Honour's judgment and it is unnecessary to recapitulate the whole cf them. The respondents are Turkish citizens who were employed by a German corporation which was interested in establishing a Turkish language newspaper in this country. They entered Australia in 1981 pursuant to temporary entry permits which in due c3urse expired. They were subsequently granted further temporary entry permits. On 24 March 1983 the appellant Durrell wrote ts the solicitor for the respondents informing them of his decision to refuse a further extensicn of their temporary entcy permits and indicating that deportation proceedings wou'd have to be instituted aif the respondents didnot leave Australia

within fourteen (14) days of the date of the letter.

Amongst the documentary material considered by Mr Durrell before making his derision was a report from another officer of the Department, Mr R.S. Henry, which reproduced allegations made against the German corporatisn 'and some cf the personnel who are currently working f£3r 2%) Sy a rival

Turkish newspaper. These aliegatzioncs incivded the fcllowing: -

"Serious but unconfirmed allegatisns from a varisty of official and sther sourtes have been made against Tertuman and some of the personnel who are currently working for it. Thes2 include:

• the newspaper plans 'ta channel monay 'from Australia ta support extremist politiczai activity overseas;

• some personnel may be connected with the Gre Wolves Qa right wing terrorist group, and ar involved in illegal drsuq and arms tratrficking.

That report became Exhibit A. It is convenient to refer to the

allegations in Exhibit A as "the Grey Wolves allegations".

At the time of the writing of the Iletter of 24 March 1983 a report dated 15 March 1983 from Mr D.J. Crossland, another officer of the Department, had been made as the result of an interview with the proprietors of the Turkish newspaper from which the allegations in Exhibit A were reproduced. This report made more detailed allegations of a similar nature to those contained in Exhibit A. This report became Exhibit P. In the letter of 24 March 1983 Mr Durrell made mo reference to

the allegations made against the respondents in Exhibits A and

In a statement furnishec Ey Mr Duereil in response to

an applicaticn made by the respondents pursuant to s.123 of the

Judicial Review Act no mention was made of the allegatisns in

Exhibits A and P under the heading "My Findings on Material

Questions of Fact". Under the heading "The Evidence or Other

Material on which my findings are based" he auncludea a

reference to "Submissions to the former Minister from Mr R.

Henry" dated 28 Ceptember 1982. This was a refersnce &

Exhibit A. Under the heading "The Reasons for the Decision" wh

Mr Durrell's expressed reasons for his decisicns were

confined to the length sf time the respondents had kEeen in

Australia, breach of conditions of entry by taking employment, the prohibited immigrant status of the respondents and the

circumstances relied upon by the respondents which did not, in

his view, warrant the grant of further temporary entry permits.

At the hearing before the learned trial judge counsel for the appellants objected to the tender of Exhibit P on the ground that 1t had not been specifically referred to by Mr Durrell in the relevant 3.13 statements. The appellants urged this court to hold that the trial judge should have rejected the tender because he was not entitled to infer that, before making the decisions referred to inhis letter of 24 March 1983, Mr Durrell had knowledge of the allegations in Exhibit P. The argument at the trial was to the effact that, because there was no reference to Exhibit FP in the 3.13 statement, the judge should not infer that Mr Durrell had seen it.

At this point 1t 15 convenlant tc consider the status

of the 5.123 statement and its evidentiary value, 1f any. Order

54 Rule 3 of the Federal Court Rules reyuires that sucha

statement be filed where an arplication 15 made for review

under the Judicial Review Act. It seems to us that the

applicant for a reviaw of a decision may axtract from it, and

use, such statements as are admissions in nis favour but ths

officer, or Minister. whose decision 15 being reviewed. cannot use the statement as evidence of the facts contained therein in

It is true that in Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (1983) 51 A.L.R. 561 at 570

Smithers J. said that a statement under s.13 is evidence of the reasons for the decision referred to in the statement. His

"There 1s a preliminary question concerning the evidentiary status of the statement of reasons

provided by the Minister on 15 September 1983. The statement was not in the form of an affidavit and was merely tendered at the commencement of the hearing. Some guidance as to the status of the reasons can be gleaned from Givaudan & Co. Ltd. v Minister of Housing and Local sovernment £1967] 1 WLR 250; C1966] 3 All ER 696. In that case the Minister was under a statutory duty to provide reasons pursuant to the Tribunals and Inquiries Ast 1958. His Honour Mr Justice Megaw said (WLR at 259); The idcument containing the Minister's reasons is... am important document, required by statute to he prepared for a particular and impcertant purvose, and 1t must be. and nc doubt i

is, regarded by the Minister as such. The whole of its contents must be assumed prima farzie, at least, to

have been inserted for a relevant purpose: namely, the setting forth with reasonable precision and clarity of matters which are relevant as indicating and explaining positively or neqatively the reasons for the Minister's decisicn.' In line with the thrust of these comments 1. take 'ne view that the statement of reasons provided by the Minister, unless effectively challenged, are svidence of the reasons for his Gecision.'

If oné goes to Givaudan's Cace, it 15 clear "hat, in

making the statement reliec upon by Smithers J., Megaw J. "RE he then was) was dealing with an argument on behalf -f the Minister that the Minister did not take an irrelevant 3:2! cr an Act into account in making his decision. Megaw J. us2i 'ie

Minister's statement of reasons as an admission against "in.

In our view, the case is net authority for the propositicn what

the statement is prima facie evidence cf the facts stated

In any event we do not think that what was said by Smithers J is inconsistent with the view that we have already expressed that the making of a decision 15 not evidence of the facts that may underlie the decision itself. Thus a statement in a $.13 statement that the Minister's decision was based upon his opinion that a person was of bad character would be evidence only of the fact that the Minister held that opinion. It would net be evidence tnat the person was, in fact, a person

The substantial questions arguei on the hearing of the appeal were. firstly, whether the trial judge was in error in inferring that Mr Durrell saw Exhibits A and P and took into account the Grey Wolves allegations in reaching his decisions without glving either of the ressondents an i¢portunity te answer them and, secondly, whether he erred in holaing that the

Hu a iit] to} cw Ps) Gs S a ian wv rm] a ct oc ny B is) om + faa ion ia]

Honour erred in drawing the inference that the allegations came to Mr Durrell's notice. In inferring that Exhibit P came iD fey ley beg ct ny a

cespondents. These circumstances included the i13sue cof a

document styled "The New Review Rights", but there is nothing in the issue of that document which, in cur opinion, advances

the respondents' case. Accordingly the appeals should be