THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS . v EMMA ESTRADA TAGLE

Migration Act 1958:- ss.6, 7, 10, 11B, 15, 16, 18, and 27

SWEENEY, WOODWARD and FITZGERALD JJ. MELBOURNE 28 July 1983 .

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JUDGES MAKING ORDER: Sweeney, Woodward and Fitzgerald JJ.

IN THE FEDERAL COURT OF AUSTRALTA ) HE FEDERAL COURT OF 4 j VICTORIA DISTRICT REGISTRY ) }

BETWEEN: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Appellant and "EMMA ESTRADA TAGLE Respondent

This appeal raises questions as to the extent to which the delegate of the Minister for Immigration and Ethnic Affairs was obliged to consider the circumstances of thé applicant, a

prohibited immnigrant, before deciding whether or not she should

The appeal is from a judgment of Keely J. On 17 March 1983, his Honour made an order setiing aside a decision of a2 delegate of the Minister for Immigration and f&thnic Affaics ordering the deportation of the applicant, Emma Estrada Tagie,

Miss Tagle is a Filipino citizen. She arrived in Australia as a visitor on 20 November 198L and was granted a temporary entry permit with currency for 59 days. Her parents, a sister, and her two brothers Live in the Phillipines. However, she has three sisters in Australia, one of whom arrived ak the same time and in similar circumstances to Miss Tagle. That sistec married an Australian resident on 11 December 1982 and remained in

In January 1982, Miss Tagle applied for her temporary entry permit to be extended to 20 May 1982. Her application was refused and an appeal was lodged to the Immigration Review Panel on 22 February 1982. For reasons not now relevant, the appeal did not come before the Immigration Review Panel until after 20 tlay 1982. For this reason the Panel did not deal with the appeal. There was no communication from the Department of Tiamigration and Ethnic Affairs to Miss Tagle concerning her appeal. No further

application for permission to remain in Australia was made by Miss

Miss Tagle was thus a prohibited immigrant within the meaning of the Act when, on 7 December 1982, she was arrested and

By letter dated 8 December 1982, Miss Tagle wrote to the Minister requesting that she be allowed to stay in Australia and

stating that she proposed to marry a named Australian resident on

On 17 December 1982, when he came to consider whether or

not a deportation order should be made under s.18 of the Act, the

Minister's delegate had before him Miss Tagle's letter of s& December 1982 and also a submission from the Acting Director of the Pronivited Immigrants Section of the Department. The submission, which recommende@ that a deportation order with respect to Miss Tagle be signed as soon as practicable, dealt with her position under the following headings:

For present purposes it will suffice to set out the iast

13. Ms. Tagle, an overstayed visitor, claimed after being apprehended that a resident of Australia wished to marry her. The resident has made that claim, and has stated that he 1s prepared to sponsor her back to Australia as his fiance. Ms. Tagle has a sister who arrived with her as a visitor and who recently married a resident.

14. In all the circumstances, I recommend that you sign the attached order for the deportation cf Ms. Tagle, to be invoked as soon as practicable. If in the interim further representations are made then deportation action will be held in abeyance until the Minister or this delegate has reviewed the matter. If you agree, Ms. Tagle, when she is advised of your decision, will be also advised that you considered her representations."

The submission was dated 17 December 1982; on the same day the recommendation was approved and the deportation order signed. Tne deportation order recited that Miss Tagle was a prohibited immigrant by virtue of s.7 of the Act in that she was the holder of a temporary entry permit which had expired and no further entry permit applicabis to her had come into force upon that expiration

The deportation order was stayed after an application

for an order of review under the Administrative Decisions

(Judicial Review) Act 1977 ("the Judicial Review Act") was made on

23 December 1982. On 11 February 1983, the delegate geve a statement of reasons pursuant to s.13 of that Act. It ais

aporopriate to set out this statement of reasons in full, omitting

The applicant, a Filipino citizen, arrived in Australia as a visitor on 20 Wovember 1981 at Melbourne and was granted a temporary entry permit with currency for 59 days.

In January 1982 the applicant applied for her temporary entry permit to be extended to 20 May 1982.

This application was refused and Mr. Raymond Eric Sparks acting on behalf of the applicant lodged an appeal to the Immigration Review Panel on 22 February 1982.

This application proved to be incomplete. This, together with further lack of promptness by the applicant caused a delay of approximately two months. A further delay of 20 days is attributable to departmental processing (Ms. Tagle for example, did not respond (to invitations to attend the Department so that a temporary entry permit could be granted to cover the period of the review which she had sought.).

Due to these delays the appeal did not come before the Immigration Review Panel until the requested period of further stay had expired and the applicant had achieved her object. Accordingly the Panel found the determination of the question to be no longer necessary.

The Melbourne office of the Department of Immigration and Ethnic Affairs was unable to contact the applicant to advise her that she was required to depart Australia.

On 7 December 1982, the applicant, as a prohibited immigrant under section 7 (3) of the Migration Act 1958 was arrested and held in custody pursuant to the provisions of section 38 of the Migration Act, 1958.

After her apprehension a representation dated 8 December 1982 requesting permission to stay on the basis of an intended marriage was made py the applicant.

THE EVIDENCE OR OTHER MATERIAL ON WIIICH MY FINDINGS ARE BASED

11. In making the above findings, the material to which I had regard was:

a submission to me from Mr. G.A. Broom, Acting Director Prohibited Immigrants Section, Central Branch, Department of

Immigration and Ethnic Affairs, dated 17 December 1982 and the annexure thereto.

This annexure comprises the representation by the applicant dated 8 December 1982.

12. The applicant became a prohibited immigrant pursuant to section 7 (3) of the Migration Act 1958 upon the expiration on 20 January 1982 of her temporary entry permit no other entry permit applicable to her having come into force.

13. The presence of a fiancee does not in itself detract from the applicant's status as a prohibited ummigrant liable to deportation. If any person wishes to sponsor her back to Australia (after her departure) as his fiances then that will be a matter for the appropriate area of the Department of Immigration and Ethnic Affairs to consider.

14. As the applicant's further stay was not regularized by grant of an entry permit, temporary or permanent, her continued stay in Australia could not be countenanced. Accordingly on 17 December 1982 I ordered the applicant's deportation."

So far as the order of review 1S concerned, it 1s necessary to refer only to one of the grounds upon which review was sought, together with the further particulars of that ground

given later. Ground 3 of the application was in the following

In her further and better particulars of that ground, the applicant listed a number of matters which it was alleged had not

peen taken into account. Broadly, these related to the

applicant's family ties in Australia, her proposed marriage, her good conduct in Australia, and the hardship which the deportation would cause. Further, it was alleged that the delegate "wrongly took into account that as the applicant's further stay had not

been regularised, her continued stay in Australia could not be

countenanced" and asserted that he had exercised his discretion

"in accordance with a policy or rule that where a further stay had not been regularised he could not countenance her continued stay in Australia without regard to the merits of the applicant's

Keely J's findings on these claims, although not expressed in the words of the Judicial Review Act, are quite

"In my opinion those reasons for the decision show that the delegate did not give any consideration at all to the question of possible hardship to the applicant, or to [her intended husband] nor to any of the other matters set out in ..... the further and better particulars set out earlier.

AR fair reading of his reasons for decision, in the context of the statement as a whole, shows that, instead of considering whether to deport the applicant, he treated that question as being one to which there could be only one answer because the applicant's further stay was not "regularized" by an entry permit. The delegate wrongly acted uvon the view that he "could not" countenance her continued stay in Australia "as" (i.e. because) she did not have a current entry permit and in so doing misconceived his function. In my opinion the making of the decision to deport the applicant was an imoroper exercise of power conferred by s.18 of the Migration Act in that the delegate failed to "give consideration to whether or not in all the circumstances the prohibited immigrant should be deported" (per Stephen J. in Salemi v MacKellar

1977 137 CLR 396 @ 432) and accordingly his discretion miscarried."

MacKellar 28 ALR 363 at 375, the question of what considerations are to be taken into account 15s "largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant", in my opinion the delegate is nonetheless bound, in the exercise of his discretion under s.18 of the Migration Act, to give some consideration to the particular circumstances of the proposed deportee. It is a matter for the delegate to determine whether any and what weight is to be attached to those circumstances. However, if the delegate fails to give any consideration at all to those circumstances, then in my opinion, he fails to carry out his task of considering whether-'to deport the applicant." vee

In our view these passages in Keely J's judgment amounted to findings in favour of the applicant on her allegations, both of failing to take relevant considerations into

account and of exercising a discretionary power in accordance with

a rule or policy without regard to the merits of the particular case. They should not be taken as a finding that all the personal circumstances of a prohibited immigrant have to be considered in all cases. They mean no more than that, in the circumstances of this case, where the Minister's delegate had material available to him from the Department and the prohibited immigrant. he should have looked at it, (which he did), identified the circumstances (if any) in favour of the prohibited immigrant's case to stay in Australia, and given them such weight as" he saw fit. Such circumstances should have been considered together with any policy or rule which had been determined in relation either to the particular type of case, or to cases of prohibited immigrants generally. All relevant considerations would have to be taken

into account; and the policy or rule could not be applied

Counsel for Miss Tagle specifically forbore to challenge before us any aspect of the decision of the Full Court of this

Court in Minister for Immigration and Ethnic Affairs v Haj-Ismail

(H&M) 40 ALR 341. He accepted for purposes of the argument in this Court that s.5(1)(a) of the Judicial Review Act did not extend the application of the rules of naatural justice beyond

their common law application, and that the High Court has held in

Salemi v MacKellar (No. 2) (1977) 137 CLR 396, and The Queen v

MacKellar, ex p. Ratu (1977) 137 CLR 461, that the Minister 1s

under no common law obligation to observe principles of natural

justice before exercising his power to deport under s.18 ef ths

Act. Counsel did not seek to argue that we have here an exceptional case, in which there was room for contending thet an obligation arose to observe the principles of natural justice (see Haj-Ismael's Case, above, at p.348.) We therefore say nothing

about the rules of natural justice. The first ground of appeal

set out in the Notice of Appeal f1led by the Minister was in the following terms: "The learned judge was wrong in law in holding that in each case the Minister, before exercising the powers conferred on him by section 18 of the Act is under a duty, in relation to a= prohibited immigrant, to consider her particular circumstances, or alternatively, her particular circumstances insofar as those circumstances may be

affected by the decision whether or not to make an order for deportation."

$.5(1){e) of the Judicial Review Act provides that a person who is aggrieved by a decision to which that Act applies that is made after the commencement of that Act may apply to the Court for an order of review in respect of the decision on the ground that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. Under sub-s.(2) of s.5, the reference in sub-s.(1)(e) to an improper exercise of a power shall be construed as including a reference to failing to take a relevant consideration into account in the exercise of a power (ses sub-s.(2)(b)) and to an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of

Section 13 of the Act provides simply that the Minister

"may order the deportation of a person who is a prohibited

immigrant under any provision of this Act". Under the Act an

iimigrant may become a prohibited immigrant in a number of ways,

(a) by entering Australia without an entry permit (s.6(1));

(ob) upon the expiration of a temporary entry permit, unless a further entry permit then comes into force (s.7(3));

(c) upon the cancellation of a temporary entry permit, unless a further entry permit comes into force (s.7(3)); such cancellation may be made by the "Minister, in his "absolute @iscretion, at any time (s.7(1)); and

(a4) upon the cancellation, an the absolute discretion of the Minister or an authorized

A person who has become a prohibited immigrant upon the expiration or cancellation of a temporary entry permit, ceases to be a prohibited immigrant if and when a further entry permit is granted (s.10) or at the expiration of a period of five years from the time at which he or she became a prohibited immigrant, unless

at the expiration of that period a deportation order in relation

s.16(1) of the Act provides that a person entering Australia in certain circumstances shall be deemed to be a prohibited immigrant unless specifically exempted; those circumstances include evasion, the use of a false or forged document, or one obtained by false representation, being a person suffering from a prescribed disease or condition, or who has been convicted of a specified crime or crimes, or who has been found guilty of having committed a crime while of unsound mind or acquitted on the ground that the crime was committed while of unsound mind, or who has been deported from Australia or another country, or a person who has been excluded from another country in

$.27(1) (ab), which was inserted by Act No. 117 of 1979 (s.15), provides that an immigrant who becomes a prohibited immigrant upon the expiration of a temporary entry permit that is applicable to him "shall be deemed to be guilty of an offence against this Act punishable upon conviction by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6

It will be clear from the wide variety of circumstances in vhich a person may become a prohibited immigrant, from the very nature of that status and from the terms of s.27(1) (ab), that there will be cases in which the Minister or his dslegate will

wish to act promptly on the material immediately available ~- which

may be quite Limited. In the present case, however, there was no

such need for urgent action. Normal public service processes had produced a convenient statement "of the facts, together with a recommendation, attaching a copy of a submission received from the alleged prohibited immigrant.

Counsel for the Ministec submitted that upon a true construction of s.5 of the Judicial Review Act and of s.18 of the Act the Minister was not under a duty, when exercising the power to deport conferred upon him by s.18 of the Act, to take unto account relevant considerations, nor was he under a duty not to exercise his discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

In our view this submission on behalf of the Minister should be rejected. We see no reason why we should not give the words of the sub-sections of s.5 of the Judicial Review Act their ordinary and natural meaning. They confer upon persons aggrieved a right to apply to the court for review of a decision on the grounds specified. "It is then for the court under s.165 of the Act to decide whether, in its discretion, it will make all or any of the orders set out therein.

We see nothing in the language of s.18 of the Act, considered in the context of the Act generally, which suggests that in the circumstances of the present case the delegate should not be under a duty, when exercising the power to deport conferred

by that section, to take into account relevant considerations, ner

under a duty not to exercise his discretionary power in accordance with a rule or policy without regard to the merits of the

Having determined that the Minister's delegate was under

a duty in this case to take intq account celevant considerations and the merits of Miss Tagle's case, it becomes necessary to ask what those considerations and merits were. This should have been a matter for the delegate in the first instance, but he made no attempt to go beyond Miss Tagle's position as a prohibited immigranl. He referred to her proposed marriage only to make the

If the delegate had taken into account the material before him relating to Miss Tagle's proposed marriage, her letter requesting that she be allowed to stay in Australia, her family ties in Australia, and the circumstances in which she became a prohibited immigrant, he may or may not have exercised his

discretion in favour of deportation; but in the process he would

have properly exercised the powar conferred upon him by the Act.

The merits of the delegate's decision are, of course, not matters

Keely J. decided that, on a fair reading of the delegate's reasons, he had regarded himself. as bound to order

-deportation once Miss Tagle's status as a prohibited immigrant was

established. Making all proper allowance for possible

infelicities of expression in the stated reasons for decision, we share his Honour's view. lt follows therefore that, 'yithin the meaning of s.5(1)(e), (2)(b) and (2)(f) of the Judicial Review Act, the making of the decision by the delegate was an improper

exercise of the power conferred upon him because he did not take into account relevant considerations, and he exercised his discretionary power in accordance with a rule or policy without

In the exercise of the discretion conferred upon the Court by s.16 of that Act his Honour granted Miss Tagle's

application and set aside the order of deportation.

The familiar rules governing appeals from the exercise

of a judicial discretion (see House v The King (1936) 55 CLR 499

at 504-5; Lovell v Lovell (1950) 81 CLR 513 at 518-520, 526, 528,

532-534; and Gronow v Gronow (1979) 144 CLR 513) apply.

We see no reason for disturbing his Honour's orders.

Accordingly, we would dismiss the appeal, with costs.

I certify that this and the /4 preceding pages are a true copy of the reasons for judgment herein of The Honourable Mr. Justice Sweeney and The Honourable

VICTORIAN DISTRICT REGISTRY ) No. VG 53 of 1983 GENERAL DIVISION ) BETWEEN.

Fitzgerald J.: Sweeney and Woodward JJ in their joint judgment set out the circumstances leading up to this appeal. I agree with their conclusion that the appeal should be dismissed with costs. My reasons for that

govern the irmpact of the Adminislrative Decisions (Judicial

Review) Act 1977 ("the Judicial Review Act") upon statutory

provisions in respect of which it operates. The possibility

may be accepted that, notwithstanding the Judicial Review Act,

it will remain possible to grant a power in such terms that

observance of the rules of natural justice will not he

essential to its valid exercise or itn terms which will permit

the adoption and implementation of inflexible policies.

There 1S no present need to pursue these questions.

The power to order deportation given by s.18 of the Migration Act 1958 ("the Act'') is permissive, not mandatory The Act does not expressly prescribe the considerations which are relevant to the exercise of the power. However, in my opinion, 1t would not be correct to describe the discretion given as absolute or unfettered. On the contrary, I consider that the power 1s tightly circumscribed by its

Section 18 grants an exceptional power of deportation in respect of a limited class of persons who have no claim to remain in Australia and no expectation that they will be permitted to do so. The condition precedent to an ordei 0 deportation under s.18 1s that the proposed deportuc 15 a prohibited immigrant; 1n broad terms, a person who has entered Australia without an entry permit or who has entered Australia with an entry permit which has been cancelled or has expired: see ss. 6, 6A and 7 of the Act, and also ss. 11B and 16. It is unnecessary to note in any detail provisions such as sub-s. 7(4), which specifies a period after which a person ceases to be a prohibited immigrant.

A person who enters Australia as a prohibited immigrant

or becomes a prohibited immigrant after entry into Australia commits an offence sub-s. 27(1). The usual, although not invariable, course will be to order deportation. No special circumstances will be needed to make a deportation order

The omission to make a deportation order under s.18 will almost always, if not always, be related to the possibility, for which the Act expressly provides, that the potential deportee will cease to be a prohibited immigrant, whereupon the power of deportation under s.18 will be removed. Section 10 of the Act provides that a person who is a prohibited immigrant ceases to be a prohibited immigrant 1f and when an entry permit or further entry permit 1s granted to him or her. A person cannot be convicted of an offence related to the expiration of a temporary entry permit if a further entry permit is later obtained: sub-s. 27(2A). A further temporary permit may be granted at any time (s.7), although, by vartue of s.GA, an entry permit other than a temporary entry permit may not be granted to an immigrant after entry into Australia unless one or more specifled conditions are satisfied. Even the consequences which a deportation order may have, for example to the person's chances of returning to Australia, may make it sometimes appropriate to grant a temporary entry permit under s.7 of the Act to allow the person to depart rather than be deported from Australia as a prohibited immigrant. Less frequently, it will be appropriate not to make a deportation order unless and until a decision is made that no entry permit or further entry permit is to be granted under s.GA of the Act. Representations or other information in fact held by the Minister or his delegate cannot be

totally ignored in the sense of being wholly excluded

When the deportation order was made, Miss Tagle was not merely a prohibited immigrant. She was a prohibited immigrant who had made an application, however, informally, for a further entry permit. She could have been granted a temporary entry permit and, had that occurred, she would not only have ceased to be a prohibited immigrant but she could have been granted a permanent entry permit under para. 6A(1)(e) of the Act which empowers the granting of a permanent entry permit to the holder of a temporary entry permit if there are strong compassionate or humanitarian grounds for the granting of an entry permit. The complaints made on behalf of the department that the statements in the judgment appealed from, requiring reference to Miss Tagle's particular circumstances, would impose intolerable burdens upon the operation of s.18 lacked substance. Section 18 is not operated 1n a vacuum, any more than what was said by Keely J. 1s properly to be seen divorced from the content of this case. The "particular circumstances" of Miss Tagle, and more particularly her family connections in Victoria and her foreshadowed marriage, were circumstances which, quite obviously, were generally related to para 6A(1)(e) of the Act. It was in the context of the information which he

had available to him concerning those matters, including

what Miss Tagle had told the department and her application to he permitted to remain in Australia, that the Minister's delegate was required to decide whether or not to order her deportation. There is nothing to indicate that any general policy which had

been adopted required that, in such circumstances, she

Keely J. concluded that it appeared from the Statement of Reasons given by the delegate under s.13

of the Judicial Review Act that the delegate had held

that he was bound to order Miss Tagle's deportation merely because she was a prohibited immigrant. That

seems to me the better view of what the delegate stated.

All that Keely J's decision in favour of Miss Tagle requires

1s a reconsideration by the Minister or his delegate of the question whether she ought be deported. A valid deportation order may still be made if that is the