Schlieske, J.I. v The Minister for Immigration & Ethnic Affairs [1987] FCA 393

today. Pursuant to those directions the applicant has filed an amended application for review under the provisions of the Administrative Decisions (Judicial Review) Act 1977, which I

The applicant relies upon two affidavits sworn by his solicitor, Mr O'Brien on 9 and 13 July 1987. There is no evidence from the applicant himself. The respondents to the amended application rely upon the affidavit of the third

The present application arises out of what the applicant apprehends is the imminent carrying into effect of a deportation order made in respect of the applicant on 3 October 1986 under s.18 of the Migration Act 1958, which I shall call the Migration Act. The deportation order recited that the applicant was deemed to be a prohibited non-citizen by virtue of s.16(1) of the Migration Act, in that the applicant was not at the time of his entry into Australia on 29 June 1986 an Australian citizen and in that at the time of that entry he produced to an officer of the Department in respect of his entry into Australia a passport that was not issued to him; in addition, the applicant was not the holder of an entry permit

of a kind referred to in that section of the Migration Act.

The making of the deportation order on 3 October 1986 was preceded by a submission to the decision maker dated 2 October. The submission was a document of some 23 paragraphs

It appears that the applicant first entered Australia on 26 June 1985 at Sydney and for the purpose of securing entry into this country he produced an Italian passport issued under another name and endorsed with an Australian visa. He was granted a temporary entry permit valid until 24 August 1985; he was subsequently granted two further temporary entry permits. The second of these was for a period to expire on 26 December 1985. The applicant departed Australia under the name of the person identified in the Italian passport. He did so on 25

The applicant returned to Australia on 29 June 1986 and it is the circumstances of this entry into Australia which are recited in the terms of the deportation order that I have described. On this occasion, the applicant produced a Swiss passport issued in the name of another person and again endorsed with an Australian visa. The applicant was granted a temporary entry permit. This entry permit was for a stay of six months and was endorsed "Employment prohibited without

It follows from the above that the applicant, by the operation of 8.16(1)(b) of the Migration Act, was deemed to be a prohibited non-citizen in that for the purpose of entering into Australia he had produced to an officer of the Department

On 12 August 1986 the applicant was arrested by officers of the Australian Federal Police in Sydney on an extradition warrant issued in the Federal Republic of Germany. He remained in custody until his release at St James Local Court on 26 September 1986, when it was found that the evidence against him did not comply with the requirements of the

The applicant was arrested pursuant to the power contained in s.38 of the Migration Act following his release from custody in the extradition matter, The applicant was interviewed by an officer of the Department on 29 September 1986. He said in the course of that interview that he would like to remain in Australia for varied reasons, including his wish to marry his Australian girlfriend. He also said that he did not wish to return to Europe because he had "no interest in their nuclear politics and attitudes". Attempts to reach the person described as the applicant's girlfriend were made by the

The evidence is that on the same day as the interview was conducted the applicant was, by letter from the Department, informed of his status under the Migration Act and invited to provide written submissions for consideration by the Minister's delegate in connection with the determination of the question of whether he should be permitted to stay in Australia or be deported from Australia. There is no evidence directly indicating that this letter was received by the applicant, but I infer that it was received by him, and, in any event, the record of interview of 29 September 1986, which is in evidence,

Are you or others intending to make written submissions on your behalf? If yes, from whom?

I have mentioned proceedings between the applicant and the government of the Federal Republic of Germany. These proceedings were complex and included several hearings in this Court. They culminated in an order of this Court made by consent on 9 July 1987 which had the effect of ordering that the applicant be released from custody. However, on 9 July 1987 a written direction expressed to be pursuant to s.39 of

the Migration Act was issued to the Superintendent of the

Metropolitan Remand Centre at Malabar, New South Wales. This directed that the applicant be kept in custody at that institution pending deportation and until he is placed on board "a vessel for deportation". The reference to "vessel" picks up the language of the definition in s.5(1) of the Migration Act which provides that the term "vessel" includes an aircraft. It was consequent upon the making of this order under s.39 of the Migration Act that the present proceedings

The applicant seeks interlocutory relief which would have the effect of staying the taking of any action under the deportation order made on 3 October 1986, pending a final hearing. The applicant also seeks an interlocutory order that the applicant be released from custody. The application 15

First, an attack was directed to the circumstances in which the order under s.18 of the Migration Act was made in October 1986, as indicating a lack of procedural fairness (ADJR Act, s.5 (1)(a)). However, the material now before the Court discloses, quite clearly in my view, that the decision maker had before him material which indicated that the applicant had had extended to him sufficient opportunities for the making of representations and that he had been extended procedural fairness in the circumstances of the case, within

the meaning of Kioa v The Minister for Immigration and Ethnic

Affairs, (1985) 62 ALR 321. It was also said on behalf of the applicant that the decision maker had failed to take into account the alleged willingness of the applicant to leave the country on his own accord provided he were able to choose his destination. (ADJR Act, s.5(1)(e) and s.5(2)(b)) However, the evidence shows the question of voluntary departure was before the decision maker. In the submission of 2 October 1986, one stated purpose of the submission is to obtain a decision as to whether there should be a refusal of the concession of a supervised voluntary departure. The decision maker decided

Then it was said that the existence of the extradition procedures was wrongly taken into account (ADJR Act, s.5(1)(e) and s.5(2)(a), s.5(2)(c) and s.5(2)(j)). The complaint is, as I understand it, that in making the deportation order the decision maker had in mind the use of the procedures under the Migration Act as a_ fall-back mechanism to be used if the West German government were unsuccessful in its extradition proceedings. There is no evidence that at the time of the making of the order on 3 October 1986 the decision maker had this in mind. Certainly there was material referring to the existence of the extradition procedures, but not in the manner relied upon by the applicant. There are no serious questions to be tried, which arise from any of the foregoing submissions for the

The second ground of attack is directed to what has happened since the deportation order was made and to the circumstances which are said to surround the delay in the execution of that order. It will be recalled that s.18 of the Migration Act provides that the Minister may order deportation of a person who is a prohibited non~citizen under any provision of the Migration Act. Further, s.20 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. It goes on to provide 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.

I should observe there is no evidence in the present case of any application to the Minister to revoke the order in question, within the meaning of s.20. Section 39 provides that 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 the legislation goes on to provide for the keeping of such a person in custody. Section 39 may thus be seen as accessory to the provisions of s.18 and s.20. The first question that arises on this aspect of the case is whether there is presented any decision under the Migration Act in the sense required for the bringing into operation of the ADJR Act. Two decisions of the

Full Court of this Court are in point. The first is

Dallikavak v Minister for Immigration and Ethnic Affairs

(1985) 61 ALR 471; the second is Mahoney v Dillon (1987) 71

ALR 395. The first decision establishes that the Migration Act gives the Minister no statutory power, expressly or impliedly, to suspend a deportation order, with the result that any conduct in and about the execution of the order is not conduct which attracts the operation of the ADJR Act. There is, as I have said, a power of revocation but the Full Court distinguished it from a suggested statutory power of suspension. Likewise, the second case decides that 5.20 contemplates that, unless revoked, the deportation order will be complied with and that in the absence of a request for revocation of the order under s.20 no relevant decision is

The substance of the applicant's complaint concerns the delays in the carrying into execution of the deportation order of 3 October 1986. It is said that that delay produces an effect whereby the making of the original order may be impugned. In my view there is no serious question to be tried on that issue; in my view the order remains in effect despite the alleged delay in its implementation. Nevertheless, even if I be wrong in this and there 1s any such principle to be drawn from the provisions of the Migration Act or the general law, in my view that principle would have no application in

It would, in my view, plainly be an appropriate exercise of any statutory discretion which was reposed in the Minister, to delay implementation of the order until the conclusion of litigation in the courts of this country between the deportee or proposed deportee and another party, in this case a foreign government. Such considerations have been treated as relevant to the antecedent questions that arise before an order is made under s.18 in the first place. By way of example, I refer to the decision of Lockhart J in Laremont

v The Minister for Immigration and Ethnic Affairs,(6 December

In the present case the applicant complains that the delay is explicable by the concern of the Department, which I have earlier referred to, to use the provisions of the Migration Act as an alternative or second route for the purposes sought to be achieved by the West German government in the extradition proceedings. The applicant offered no evidence on this allegation, which would be a serious one. However, the respondents have quite properly placed the relevant material from the Department's documentation before the Court. This material discloses a consistent concern on the part of the officers with the conduct of this matter that the Department not use or permit to be used the provisions of

the Migration Act to facilitate extradition proceedings.

This appears from a departmental file note dated 10 October 1986 and a further file note dated 12 February 1987, the first being a note of a communication with an officer of the Attorney-General's Department and the second a note of the conversation with an officer of the Director of Public Prosecutions. It follows that even if the submission that is made 1s one that has any secure legal footing, it would still lack, 1n my view, any serious factual issue to be tried, the factual material pointing entirely in the one direction, a direction away from the case sought to be made by the

A third ground of attack 1s related to the grounds already described, but should be considered independently. It 1s that the provisions of the Migration Act dealing with the making and execution of deportation orders do not confer a power to bring about the deportation of the deportee to a particular destination where that destination 1s one unacceptable to him and where he would wish to propose practical alternatives. The respondents assert that there is such power, or, to put it more accurately, that the general terms of the legislation are not inhibited by the placing upon them of any restriction of this type. They refer in particular to the decision of the High Court of Australia in

Znaty v The Minister for Immigration, (1972) 126 CLR1, and in

particular to the judgment of Walsh J who spoke for the majority in that case. I agree with the submissions for the

I would point out that I have taken into account the possibility that special circumstances could arise, as indicated in the joint judgment of Mr Justice Beaumont and

myself in Mahoney v Dillon (1987) 71 ALR 395 at 401. However,

I should add that the reference there to the decision of Ryan

J in Daguio v The Minister for Immigration and Ethnic Affairs,

(unreported, 31 October 1986), at page 18, is to be understood in the setting of that case. This proceeded upon a concession made for the respondent Minister that the decision made by the Minister or an authorized officer subsequent to a deportation order as to the place to which the deportee is to be taken (as contemplated by s.21(3) or (3A) or s.21A(1) or 8.22(1)) is itself reviewable at the instance of the deportee. There is, in any event, no evidence before me as to the making of any

Lastly, an attack is made upon the second direction issued pursuant to s.39 of the Migration Act - namely, the direction of 9 July 1987. The first direction, made in 1986, was treated as spent by subsequent events involving the extradition proceedings, and accordingly attention was focused upon the second and current direction. I accept the submission by the respondents that the issue of such a direction would not, at least in the circumstances of this case, require the observance of procedural fairness such as to require the decision-maker to present an opportunity for

used de facto to achieve an object outside the provisions of

the Migration Act - namely, the extradition of the applicant. As to that, I need say no more than what I have already said as to the care taken by the respondents to exercise their powers under the Migration Act in this case with a view simply to the observance of the requirements of that Act, not any

I should add that reference was made by counsel for the applicant to the decision of the English Court of Appeal

in The Queen v The Governor of Brixton Prison; Ex parte

Soblen, [1963] 2 QB 243. The applicant sought some comfort from this decision. That, of course, is not a decision illustrative of the operation of legislation in this country. What the Court of Appeal decided was that, at least as the situation existed in Britain in 1962, deportation was an act of an executive character, not of a judicial or quasi-judicial character. It followed under the law, at least as it was then understood in England, as to interference by prerogative writ that an alien was not entitled to an opportunity of making representations against the making of an order. In the course of his decision in that case, the Master of the Rolls raised the question of whether the applicant might be entitled to an opportunity of making representations against execution of the

The position in this country is radically different. The principal ruling of the Court of Appeal - namely as to judiczal restraint in respect of the making of deportation orders - is, of course, greatly at odds with the operation of the ADJR Act upon a wide range of decisions under the Migration Act, including those under 5.18: see Kioa's Case (supra). It follows that the limitation on the court's role which was the basis of Lord Denning's comments in Soblen's

Accordingly, I have reached the conclusion that there are presented in the material before me no serious questions to be tried within the meaning of the authorities discussed in their application to this area by Northrop and Pincus JJ in

their joint judgment in Dallikavak v The Minister for

Immigration and Ethnic Affairs, (supra). I am prepared to

accept that the balance of convenience would appear, as is usually the position in these cases, to favour the applicant; but that, of course, is not sufficient. It follows from what I have said as to the absence of serious questions to be tried

I certify that this and the fourteen (14) preceding pages are a true copy of the

Reasons for Judgment of his Honour Mr Justice Gummow.

Counsel and Solicitors for Applicant: Mr B. Purves instructed by Mr W.P.

Solicitor for the Respondents: Mr S. Daley, Australian Government Solicitor.