The QueenMackellar [1977] HCA 35

High Court of Australia|1977-07-01|Before: Aickin JJ

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs, Murphy and Aickin JJ. The QueenMackellar [1977] HCA 35

The applicants seek, amongst other relief, an injunction to restrain the Minister for Immigration and Ethnic Affairs from putting into execution an order for their deportation which he made on 21st February 1977, until he has afforded them an opportunity of answering any matters which he took into consideration when making the order. The applicants made representations to the Minister seeking to persuade him not to make an order for their deportation but the Minister, having considered these representations and the reports of his officers, made the order. The applicants complain that they do not know the contents of the reports of the officers and claim to have a right to place before the Minister, after they know the contents of those reports, such answers, if any, which they may have to any matters stated by the officers in the reports.

The order for deportation was made in exercise of the power given by s. 18 of the Migration Act 1958, as amended ("the Act"). In the case of Salemi v. MacKellar [No. 2] [1] , I have expressed the view that the power to order deportation given by s. 18 is not qualified by the necessity to accord a prohibited immigrant natural justice. In this case this question has again been fully canvassed by counsel for the applicants. The further examination of the various decisions to which the Court has been referred and of the provisions of the Act confirm me in the view that, upon its proper construction, the Act does not give to the Minister by s. 18 a discretion which he cannot exercise unfavourably to the prohibited immigrant unless he affords the prohibited immigrant what, in the circumstances, natural justice may be said to require.

In Salemi's Case I emphasized the nature of the subject matter of the Act and that that subject matter did not permit of judicial formulation of principles upon which persons should be admitted to Australia or their entry refused or upon which persons who, according to the terms of the statute, were prohibited immigrants should be allowed to remain.

Apart from the unique character of the subject matter, the Act itself, it seems to me, indicates that the Parliament has given consideration to the question whether an order for the deportation of a prohibited immigrant should not be made except after notice to him of an intention to make it and until an opportunity has been afforded to the prohibited immigrant to ascertain and to canvass the reasons upon which the Minister contemplates making the order. In Salemi's Case I called attention to the obvious distinction between s. 14 and s. 18. Perhaps the relationship of these two sections bears a little further analysis.

Neither s. 13 nor s. 14 makes the immigrant a prohibited immigrant, but each authorizes deportation if the circumstances satisfy the respective requirements of those sections. But ss. 6 (1), 7 (3) and 8 (3) by contrast do make the immigrant a prohibited immigrant in the various circumstances set out in those sections. All of these sections (i.e. ss. 6 (1), 7 (3) and 8 (3)) make the status of prohibited immigrant to depend upon an objective fact. In none of them does that status depend upon the opinion of the Minister or of an officer. Section 6 (1) provides for the case of an immigrant who does not hold an entry permit. Whether he does or does not do so is a question which is to be decided in the long run by a court and, ultimately, by this Court. But if the fact be in accordance with the sub-section, the immigrant because of the fact is a prohibited immigrant. So also in the case of s. 7 (3). The expiry or cancellation of the temporary entry permit is the fact upon the existence of which the status of prohibited immigrant arises. The same is true of persons falling within the descriptions of s. 8 (3). Whilst s. 13 does not make the immigrant a prohibited immigrant, it does make the liability to deportation depend on the objective fact of conviction.

Some point was sought to be made of the fact that the applicants were not aliens but British subjects. But, in my opinion, that fact in relation to the matter in discussion in this case is irrelevant. The Act clearly indicates that British subjects may be prohibited immigrants. The contrast of ss. 12 and 13 is sufficient to emphasize that conclusion.

In high contrast to ss. 6, 7 and 8, are the provisions of s. 14. The Minister may under that section order the deportation simply because it appears to him that the conduct of the immigrant is such that he should not be allowed to remain or that he is a person who has done any of the things described in s. 14 (2) (b). Thus, the Minister's power under s. 14 is in the first instance conditioned on his own view not only of the facts but of their relevant quality. There are no lines of demarcation drawn by the statute as to what conduct may satisfy the specification of s. 14 (2) (a). But the power of the Minister under sub-s. (2) is made subject to the section. In sub-ss. (3) and (4) the Parliament has provided that in a case falling within s. 14 a notice must be first served on the person whose deportation is contemplated, which notice must specify the grounds upon which it is contemplated and, if that person so desires, the matter is to be considered by an independent tribunal which is to make investigation as prescribed and to report whether the ground specified by the Minister in his notice has been established.

The distinction between the cases I have instanced of prohibited immigrants and those falling within s. 14 are too obvious to need emphasis. In the cases falling within s. 18 the status of prohibited immigrant depends on a simple, readily ascertainable objective fact - lack of entry permit, expiry or cancellation of entry permit, or change in entitlement to enter without an entry permit. It is quite clear, in my opinion, that the Parliament has had in mind and considered in what cases notices should be given of intention to make a deportation order and when grounds should be specified or reasons given for the making of an order for deportation. The statute, having clearly laid down the circumstances in which the status of prohibited immigrant should arise, has seen no need for notice or of specification of grounds. The reasons for such a course on the part of the Parliament are readily understood. Of course, the existence of that status may be challenged, i.e. the existence of the circumstances on which the status is said to depend, and if challenged will be decided by the courts.

If s. 18 were to be qualified in the manner suggested then, of course, as I indicated in Salemi's Case [2] , the qualification must be universally applicable.

Natural justice on that assumption must be accorded to any prohibited immigrant who falls within its purview. As I have indicated in Salemi's Case [2] , what would need to be done to satisfy that requirement may vary according to the circumstances, but the qualification will be universal: the power will thus be a qualified power. It is not without interest in this connexion to observe that the prohibited immigrant, who has become such upon the cancellation of a temporary entry permit, can have no standing to complain of the cancellation of that permit. Section 7 (1) gives to the Minister an absolute discretion at any time to cancel the temporary entry permit. It would be odd in the extreme if, none the less, before an order for deportation could be made of an immigrant whose entry permit has been cancelled, that the prohibited immigrant could insist on being informed of the reasons why it was contemplated that the order should be made and have an opportunity to contest those reasons, apparently both in relation to the facts and their sufficiency to warrant a deportation order being made. It seems to me that the cancellation of the entry permit must clearly be quite sufficient to ground the order for deportation.

I indicated in my reasons in Salemi's Case [3] that there was at least a doubt as to whether the Minister really had a discretion not to order deportation of a prohibited immigrant. On further reflection I have formed the view that there is no such discretion. The discretion which the Minister has is to alter the status of the prohibited immigrant by the grant of an entry permit of a suitable kind. Section 10 of the Act provides the exclusive means by which the status of prohibited immigrant can be brought to an end.

Under s. 38 a person who is suspected of being a prohibited immigrant may be arrested, brought before a prescribed authority which, if satisfied that there are reasonable grounds for the suspicion, may authorize detention for such period not exceeding seven days as the authority thinks is reasonably required in order to enable the Minister to consider whether the person is a prohibited immigrant and whether a deportation order should be made. It may be said that the form of s. 38 (3) suggests that there is some discretion in the Minister as to whether he will or will not make a deportation order. But it seems to me that upon its proper understanding that sub-section really affords the Minister an opportunity to determine the status of the prohibited immigrant by the grant of an entry permit. Unless he does so, it seems to me that the scheme of the Act as a whole requires that deportation of a prohibited immigrant be ordered. I cannot think that the Parliament entrusted to a Minister a discretion to allow a person who remains a prohibited immigrant to remain in Australia. Of course, if the Minister makes an order for deportation, this Court can determine whether the person, the subject of the order, is in fact a prohibited immigrant.

It seems to me impossible in the face of the other provisions of the statute itself to construe s. 18 as granting only a qualified power to make the order for deportation.

I am therefore of opinion, first, that there is no basis upon which an injunction could be granted in this case to restrain the execution of the Minister's order. The absence of any qualification of the power given by s. 18 is sufficient for this purpose and I have no need to consider whether, on general principles, injunctive relief is available or appropriate.

The question whether, if natural justice had to be observed before a deportation order was put into effect, the requirements of natural justice had in fact been satisfied in this case was discussed. It is clear from what I have written that, in my opinion, no such question arises. But as the facts of the case were canvassed before us I think it appropriate that I should say that I think the applicants have no reasonable complaint as to their treatment by the Minister. He considered their representations before he made his order. They were not entitled, in my opinion, to be furnished with particulars of the reports he had before him or of the reasons for which he decided to make the order. The applicants' case upon the facts is, in my opinion, unmeritorious.

In these proceedings the prosecutrices, two Fijian girls, seek against the Minister for Immigration and Ethnic Affairs a writ of prohibition to prohibit the Minister from proceeding further upon deportation orders made against the prosecutrices on 21st February 1977, or a writ of certiorari to remove the deportation orders into this Court for the purpose of quashing them, or such other relief as may be appropriate in the circumstances.

Each of the prosecutrices is a British subject although a citizen and national of Fiji. They came together to Australia from Fiji on 13th February 1976. Before that time they had worked as trainee nurses in Suva. They hoped to continue their training as nurses in Australia. Upon their arrival in Sydney they were both granted temporary entry permits, expressed to authorize each of them to remain in Australia for one month. It is said that before leaving Fiji they had signed declarations that they would not engage in employment or in formal studies in Australia. They themselves describe their permits as "visitor's permits". Within a month of their arrival in Australia, they enrolled for the Nurses' Entrance Examination at the East Sydney Technical College (which is a preliminary qualification for entrance to general nursing training in New South Wales and apparently involves attendance at a course which lasts for three months) and applied to an official of the Department of Immigration for an extension of their permits to enable them to sit for this examination. The officer refused their application, and told them that what they had done was against the law and that they would have to leave Australia within seven days. However representations were made on their behalf and they were granted further extensions to their permits. These extensions expired on 13th August 1976 and no further entry permit was issued to either of them after that date.

In the meantime, in April 1976, the prosecutrices obtained employment as nursing assistants at the Sacred Heart Hospice in Darlinghurst, an institution whose primary function is to care for persons who are ill beyond hope of recovery. It appears that they remained in employment at the Hospice until February 1977. In August 1976 they made application to the Director of Nursing, Royal Prince Alfred Hospital, Sydney, to accept them as trainee nurses at that Hospital and in September 1976 they were told by the Director that they would be accepted if the Department allowed them to stay in Australia for that purpose. At about the same time, representations were made on their behalf to the Minister, requesting him to allow them to remain in Australia to complete the nursing course, which it was said would take about three years. It appears that no reply was received to the representations. On 7th February 1977 the prosecutrices were arrested under the provisions of s. 38 of the Migration Act 1958 Cth, as amended ("the Act"). On 21st February 1977 the Minister signed the deportation orders. Arrangements were made to deport the prosecutrices on 31st March 1977, but before that date the Minister was restrained by interim injunction from putting the orders into execution.

It cannot be doubted, and is not contested, that upon the expiration of the entry permits on 13th August 1976 the prosecutrices became prohibited immigrants: s. 7 (3) of the Act. The deportation orders state on their face that they are made in pursuance of the power conferred upon the Minister by s. 18 of the Act. That section provides as follows:

The Minister may order the deportation of a person who is a prohibited immigrant under any provision of this Act.

Section 18 confers upon the Minister an unfettered power to order the deportation of a person who is a prohibited immigrant. Since the prosecutrices are prohibited immigrants it appears at first sight that the orders made by the Minister for their deportation were entirely within the power conferred on him by the section. However the submission made on their behalf is that the Minister, in exercising his powers under the section, is obliged to act in accordance with the principles of natural justice. It was said that this meant that the prosecutrices were entitled to know the substance of the material which the Minister had before him, and upon what grounds he acted, in making the orders, and to be given an opportunity to answer any statements that may have been made against them and to place before the Minister their reasons for opposing the making of the orders.

In fact, since the deportation orders were made a number of submissions have been made to the Minister on behalf of the prosecutrices by their solicitors. The Minister has been supplied with information that they are both persons of good character and that they have rendered useful service at the Hospice, which finds it difficult to engage staff suitable to undertake the difficult and demanding work that is necessarily required at such an institution. In relation to this matter it may be mentioned that although the Hospice wishes to retain the services of the prosecutrices, it seems unlikely that in any event they would remain there indefinitely in view of their wish to undergo training at the Royal Prince Alfred Hospital. Replies have been sent to the solicitors by the Secretary of the Department (on 24th February 1977) and by the Minister himself (on 28th March 1977). However it is now argued on their behalf that these letters give rise to the inference that the Minister may have acted upon assumptions of fact which could have been shown to be erroneous if the prosecutrices had been given the opportunity to answer them. In particular the letter of 28th March 1977 states that the whereabouts of the two prosecutrices remained unknown until 7th February 1977, whereas it is said that at all times they could have been found if inquiries had been made to the address which they had given to the Department when their permits were extended. Further that letter contains the following sentence:

Evasion of immigration controls by people seeking to enter or remain illegally in Australia has increased considerably in recent years and is a matter of serious concern. It was submitted that this may have indicated that the Minister believed, contrary to the facts, that the prosecutrices had gone into hiding to escape from the notice of the authorities. That does not seem to be a correct interpretation of the Minister's words. In fact it is clear that although the prosecutrices entered Australia as visitors on temporary permits, having first declared that they would not engage in employment or formal studies, their intention in coming to Australia was to undergo training as nurses, and in these circumstances the Minister may have been justified in thinking that they attempted to evade immigration controls. However the main argument advanced on behalf of the prosecutrices was that they do not know upon what material the Minister may have acted and therefore cannot answer any erroneous allegations that may have been made against them.

In Salemi v. MacKellar [No. 2] [5] I discussed the provisions of the Act that give the Minister power to make deportation orders and the authorities dealing with the application to statutory powers of the principles of natural justice. In that case I reached the conclusion that the power given by s. 18 of the Act is not subject to an obligation to observe the principles of natural justice, and in particular that the Minister is not bound to disclose the grounds on which he proposes to act in making a deportation order, or to afford a hearing to a prohibited immigrant before ordering his deportation. Having considered the arguments advanced in the present case I see no reason to depart from that conclusion. I do not wish to add to the reasons which I gave in Salemi v. MacKellar [6] , except to say that there do not exist in the present case circumstances similar to those whose presence in Salemi v. MacKellar [7] led some members of the Court to consider that the Minister had wrongly failed to observe the requirements of natural justice. In that case the Minister had announced the granting of what was called an "amnesty" for prohibited immigrants and the plaintiff there claimed to have satisfied the terms on which the amnesty was granted. In the present case, however, there is not the slightest suggestion that the prosecutrices were ever led by the Minister or any member of his Department to believe that they could enter Australia other than as visitors or that they would be given the right to stay indefinitely in Australia.

Ante, p. 396. 2. Ante, at pp. 399-407. 3. Ante, at pp. 408-410.

For these reasons I consider that the deportation orders were within the power of the Minister to make and that no ground has been advanced for challenging their validity. I would dismiss the applications.

This is another case, like that of Salemi v. MacKellar [No. 2] [8] , in which it is sought to invoke principles of natural justice so as to prevent the deportation of visitors to Australia who, having overstayed the term of entry permits issued to them, have become prohibited immigrants.

However, unlike the plaintiff in Salemi's Case the two Fijian girls who have instituted the present proceedings can claim no entitlement to the benefit of any "amnesty" offered by the Minister. A further and no less important distinction is that in this case the evidence makes it clear that the Minister has not only received detailed submissions prepared on behalf of the prosecutrices but has given careful consideration to those submissions and has stated in considerable detail why it is that he has rejected them and has determined to press ahead with deportation.

In Salemi's Case I considered what might be the position of such prohibited immigrants as these without benefit of any amnesty and, while finding it unnecessary to express any concluded view, doubted whether s. 18 of the Migration Act 1958 empowered the Minister summarily to deport such "overstayed" prohibited immigrants without first affording them the opportunity of making submissions on their own behalf. I will not again review the authorities which I there examined, nor restate the conclusions which I thought might be drawn from them. If the doubts which I expressed in Salemi's Case [9] were well founded they will nevertheless not assist the present prosecutrices.

The particular circumstances leading to the making of deportation orders in this case appear from the reasons for judgment of Gibbs J. What occurred shortly before and shortly after the orders were made satisfies me that the prosecutrices cannot here complain that they have not had a fair opportunity of placing before the Minister all that they at the time wished to say concerning the reasons why, despite their status as prohibited immigrants, they should not be deported. They did this on various occasions and in various ways.

The orders were made on 21st February 1977. The prosecutrices had been employed as nursing aides at the Sacred Heart Hospice, Darlinghurst, for a large part of the twelve months that had passed since their arrival in Australia and, early in February 1977, their then solicitor, who was also honorary advisor to the Hospice, had written to the Minister seeking permission for the girls to remain in Australia and describing the acute need of the Hospice for nurses and the girls' suitability for this role. This was replied to on behalf of the Minister on 24th February 1977, giving as reasons for rejecting the submission and ordering their deportation, the girls' status as prohibited immigrants, which itself made them liable to deportation, their lack of acceptable qualifications, a situation which would have rendered them ineligible to come to Australia had they initially applied to settle in this country as migrants instead of entering as temporary visitors, and their engagement in employment in Australia despite their original entry as short term visitors only.

There followed, on 4th March 1977, a detailed seven page written submission by their solicitor to the Minister which appears fully to have presented their case and with which was enclosed a letter from the Rectress of the Sacred Heart Hospice, Darlinghurst, describing at some length the valuable work which the two girls were performing at the Hospice as nursing aides, their good character, intelligence and other desirable attributes and their wish to undertake further training as nurses.

This submission elicited a lengthy reply from the Minister himself on 28th March 1977, of which more must be said. However before going to it, I should make passing reference to additional representations which appear to have been made on the girls' behalf by a Mr. Baltinos of the New Settler's Federation of Australia. He is said to have written an early letter, in August 1976, seeking permission for the girls to remain in Australia long enough to undergo training as nurses and to have written again, in early February 1977, enclosing a letter from the Rectress of the Hospice. It is not clear whether these letters were ever recieved by the Minister or his Department; they were not replied to. They add nothing to the material to which I have earlier referred.

There was, then, ample opportunity, freely availed of, to make submissions to the Minister and there is no doubt that he gave consideration to them but nevertheless adhered, for reasons stated by him, to his decision to deport the prosecutrices. However it is said on their behalf that this is not enough to satisfy the requirements of natural justice. It is not enough because the prosecutrices have not had the opportunity to deal with two matters prejudicial to them and which may have affected the Minister's decision. The existence of the first of these matters is conjectural, it consists of such material, if any, adverse to the prosecutrices as may appear in the departmental reports concerning them which the Minister has had before him. The second consists of the Minister's understanding, said to be erroneous, that they concealed their whereabouts from the Department after being refused permission, in 1976, to remain in Australia and that they had engaged in evasion of the immigration laws until their apprehension by officers of the Department.

The prosecutrices rely upon the Minister's own letter as their source of knowledge of these two matters and of the Minister's alleged reliance upon them. It is true that that letter does refer both to his examination of "the reports on" each of the prosecutrices and to their whereabouts being unknown to his Department for some considerable time. He also, in a quite unspecific way, refers to the topic of the evasion of immigration controls. However on no fair reading of the letters of 24th February 1977 and of 28th March 1977 can it be thought that these matters formed any part of the grounds upon which the Minister has acted in rejecting the submissions made to him.

I have already referred to what was said on his behalf in the earlier of these two letters. In his own letter of 28th March he points out that these girls, before leaving Fiji, signed declarations that they would not engage in employment or in formal studies in or seek to settle in Australia, and would leave after the conclusion of their permitted visit here; the visas issued to them were stamped "Employment Prohibited". Then follows a summary of relevant events, including their becoming prohibited immigrants, their apprehension and the signing of deportation orders. The Minister then says:

I have again examined the matter. However Miss Salusalu and Miss Doko are not eligible to come to Australia as migrants (or as students) or to remain here. It appears that the basis of your representations is that the Sacred Heart Hospice wishes to retain the services of Miss Salusalu and Miss Doko because they are indispensable.. In saying this he is clearly correct in his understanding of the basis of the representations being made to him. He proceeds to explain in some detail his reasons for rejecting the representations as affording sufficient reason for permitting the girls to remain in Australia. In doing so he meets and deals directly with the case put on their behalf and, whether satisfied or not with the Minister's views, no principle of natural justice can be invoked to justify any continued debate on this matter. In conclusion the Minister voices his concern at the serious increase that has occurred in the extent of evasion of immigration controls, this at a time when lawful immigration is being restricted; he expresses the view that those who, by deception, gain entry should not thereby obtain any advantage over those who do not deceive the authorities and are, in consequence, refused entry to Australia at the outset.

The precise nature of the prosecutrices' complaint, as urged before us, appears clearly enough in an affidavit sworn by Miss Ratu. In it she says that she does not know what may be the contents of the departmental reports mentioned by the Minister and wishes to have an opportunity to make submissions on any matters they may raise; she complains of a lack of opportunity to answer "allegations made against me either directly or indirectly" in the Minister's letter and concludes by seeking an opportunity of refuting the matters upon which the Minister has said he relies for his decision.

I have already said as to this last matter that an appeal to natural justice cannot entitle the prosecutrices to debate the Minister's declared reasons, whatever they may think of them; the allegations made against them by the Minister that they were admitted to Australia as visitors only and upon conditions which they have wilfully ignored, are not denied; they have, in the very sense in which the Minister speaks of evasion of immigration controls, sought to evade those controls. Finally, to suggest that the Minister has adhered to his decision to deport either because of some mistaken belief that the prosecutrices failed to keep the Department informed of their whereabouts or because of some other prejudicial material conjectured as contained in departmental reports is not only to ignore what the Minister has said are the reasons for his decision. It also involves treating his letter as wanting in frankness, perhaps even as knowingly misleading, and this without any disclosed grounds for doing so and despite the existence of his stated reasons for deportation which are on their face inherently probable and reasonable ones.

In these circumstances, whatever may be the extent, if any, of the rights of the prosecutrices to require the observance towards them of the rules of natural justice, they cannot ask more from the Minister than they have already received. I would dismiss the application accordingly.

The case presented on behalf of the applicants was, to say the least of it, somewhat elusive. Although in form an application for prohibition and certiorari it was in reality an application for an injunction to restrain the Minister from acting on the deportation orders which he had made against them on 21st February 1977 until he provides particulars of the contents of reports which he took into consideration when making the orders and until he has an opportunity of considering further representations to be made to him by the applicants in the light of those particulars, with a view to persuading him to allow them to remain in Australia to receive training as nurses. At times the argument presented on behalf of the applicants appeared to concede that the deportation orders were validly made, the applicants being prohibited immigrants whose temporary entry permits had expired on 13th August 1976. In essence the applicants' submission was that the principles of natural justice required the Minister to reconsider his earlier decision and, as a preliminary to that reconsideration, to inform the applicants of the reasons on which the earlier decision was based.

If the deportation orders themselves were valid and incontestable, the applicants' case cannot be sustained. On the assumption that the Minister is at liberty to revoke a deportation order once made, he does so of his own motion. The Migration Act 1958, as amended, makes no provision whatsoever for the reconsideration or revocation of a deportation order. As the Act imposes no duty on the Minister to reconsider a deportation order once made or to consider an application for its reconsideration, I am unable to perceive how natural justice provides any support for the applicants' case unless it applies to the initial making of the deportation orders.

The success of the application therefore depends on the status of those orders. If it could be said that the Minister departed from the principles of natural justice in making the deportation orders, the applicants would be entitled to relief. Whether the rules of natural justice apply to the making of a deportation order under s. 18 of the Act and what those rules require is fundamentally a question of statutory construction. The statute may displace the application of the principles of natural justice in whole or in part and it may displace their application in some situations but not in others. In relation to judicial proceedings in courts it has been said that an intention to displace the rules is "not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment." (Commissioner of Police v. Tanos [10] ). Here the context in which orders are made under s. 18 is not that of judicial proceedings, with the consequence that we are not confronted with the necessity of finding "express words of plain intendment" to displace the requirements of natural justice. It is a matter of determining what is fair, having regard to the subject matter and to the provisions of the statute.

In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [11] , Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depended on "the particular statutory framework", and went on to say [12] :

By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin [13] . As Tucker L.J. said in Russell v. Duke of Norfolk [14] , in a passage approved by the Privy Council in University of Ceylon v. Fernando [15] , there are no words which are of universal application to every kind of inquiry and every kind of tribunal: "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth" [16] . What the law requires in the discharge of a quasi-judicial function is a judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. 1. (1963) 113 C.L.R. 475. 2. (1963) 113 C.L.R., at p. 504. 3. [1964] A.C. 40, at p. 73. 4. [1949] 1 All E.R. 109. 5. [1960] 1 W.L.R. 223, at p. 231; [1960] 1 All E.R. 631, at p. 637. 6. [1949] 1 All E.R., at p. 118.

The suggestion here is that natural justice requires that the Minister before making a deportation order under s. 18 should give advance notice to the person against whom the order is to be made of the reasons for which it is to be made. No doubt it is right to say that in many circumstances natural justice requires that a person against whom an order is proposed to be made that will deprive him of some right or interest or the legitimate expectation of some benefit is entitled to particulars of the case sought to be made against him (see Schmidt v. Secretary of State for Home Affairs [17] ; Annamunthodo v. Oilfields Workers' Trade Union [18] ; Breen v. Amalgamated Engineering Union [19] ). In the present case, however, the conclusion which I have reached on an examination of the Migration Act is that the making of the deportation orders did not deprive the applicants of any right or interest or of the legitimate expectation of a benefit in such circumstances as to impose upon the Minister an obligation to give advance notice of his reasons for making the orders. This conclusion in my opinion follows from the character of the deportation orders which were made, the purpose which they serve under the Act, the effect which they had upon the applicants' position and to a lesser extent from the provisions of the Act dealing with the grant, refusal and cancellation of temporary entry permits and with the making of deportation orders.

[1969] 2 Ch. 149, at p. 170. 2. [1961] A.C. 945. 3. [1971] 2 Q.B. 175, at p. 191.

An immigrant who enters Australia without an entry permit becomes a prohibited immigrant (s. 6 (1)) and is guilty of an offence (s. 27 (1) (a)). The Minister may at any time, in his absolute discretion, cancel a temporary entry permit by writing under his hand (s. 7 (1)). Upon the cancellation or expiration of a temporary entry permit the holder becomes a prohibited immigrant (s. 7 (3)). He does not commit an offence by remaining in Australia but he is liable to arrest and an order for detention may be made against him by a prescribed authority (s. 38). A person ceases to be a prohibited immigrant if and when an entry permit or a further entry permit is granted to him (s. 10) or at the expiration of five years from the time at which he became a prohibited immigrant unless, at the expiration of that period, a deportation order is in force in relation to him (s. 7 (4)). A person who is a prohibited immigrant by virtue of s. 7 (3) may be required by an authorized officer to leave Australia within a time specified by the officer; he is bound to comply with that requirement and if he fails to do so he is guilty of an offence (s. 7 (5)).

Deportation orders may be made by the Minister under s. 12 (aliens convicted of serious crimes), s. 13 (immigrants who have been convicted of certain crimes within five years of entry or who become within that time inmates of mental hospitals or institutions), s. 14 (1) and (2) and s. 18. Section 14 enables the Minister to order the deportation of aliens and of immigrants of no more than five years' standing where it appears to him that their conduct has been such that they should not be allowed to remain in Australia. It also confers the power of deportation in relation to immigrants of no more than five years' standing who appear to the Minister to advocate or teach certain doctrines. In each of these cases the Minister is required, before making a deportation order, to serve notice on the person in question, informing the person that he proposes to make an order on the grounds specified in the notice, unless that person requests by notice in writing within thirty days that his case be considered by a Commissioner (s. 14 (3)). If such a request is made, the Minister may summon the person to appear before a Commissioner who shall make a thorough investigation and report to the Minister (s. 14 (4) and (6)). Subject to certain exceptions, the Minister is not permitted to exercise the power of deportation unless the Commissioner reports that he considers that the ground specified in the notice has been established (s. 14 (8)).

It will be noticed that, unlike s. 14, there is no provision relating to the grant or refusal of entry permits or to the making of deportation orders under s. 18 which requires an officer or Minister to give reasons or to give notice of the grounds upon which an entry permit is intended to be refused or a deportation order made.

By way of contrast with the earlier provisions providing for deportation, in particular s. 14, s. 18 is generally expressed and enables the Minister to order the deportation of a person who is a prohibited immigrant under any provisions of the Act. The exercise of the power is conditioned only upon the fact that the person the subject of the order is a prohibited immigrant; it is not required that the Minister shall form any opinion or judgment. Nor is a procedure specified.

The character of the power to make a deportation order under s. 18 may be deduced partly from the circumstance that it is exercisable in relation to a prohibited immigrant, that is, a person who enters or remains in Australia without lawful authority. Unlike entry into Australia without a permit - which does constitute an offence under s. 27 (1) (a) - remaining in Australia after an entry permit has been cancelled or has expired and has not been renewed does not constitute an offence, though failure to comply with a requirement under s. 7 (5) is an offence. However, neither the fact that a person may remain in Australia after cancellation or expiry of his entry permit without committing an offence nor the fact that he will cease to be a prohibited immigrant if he stays here for five years, no deportation order being made against him, detracts from his character as a prohibited immigrant in the meantime. He is liable to arrest and detention. He is an illegal immigrant, having no right or title to remain here (Reg. v. Forbes; Ex parte Kwok Kwan Lee [20] ).

The making of a deportation order under s. 18 therefore provides lawful authority for the removal from Australia against his will of a person who has no right to remain here. It is not the case that the order terminates his right to remain; nor can it be said in the ordinary case that it deprives him of a legitimate expectation that he will be allowed to remain here. Deportation, for which the order provides, is then but a consequence of the prohibited immigrant's failure to depart when he has no right to remain.

Another factor suggesting that the Minister is not under an absolute or universal obligation to give advance notice is to be found in the width of the discretion conferred by the section and in the absence of any obligation to give reasons. The discretion is unlimited in scope except in so far as the nature and purpose of the Act may possibly suggest some confinement. And it is not easy to see how any limitation in scope in relation to a power to deport a prohibited immigrant can be derived from an Act which deals with the topic of immigration. The very general words of the section leave the Minister free to take into account government policy on important issues and, where it is thought to be appropriate, the personality and circumstances of the individual. No doubt the Minister in considering whether a deportation order should be made will have as the foremost consideration in mind the fact that the prohibited immigrant has no right to remain in the country but there may be countervailing considerations of policy or considerations personal to the prohibited immigrant which admit of his remaining in Australia. In some cases it may be thought that action should be taken under s. 7 (5), before resort is had to s. 18. Indeed, unless there is reason to suppose that a situation of emergency exists or that a requirement under s. 7 (5) will be disobeyed, there is no occasion to resort to s. 18 in the first instance. As the discretion is general, as no criteria for its exercise are enunciated and as the Minister is not required to form any opinion or judgment as a preliminary to the making of an order, there is no persuasive analogy with the judicial function.

In the argument advanced for the applicants there was a tendency to use the words "grounds" and "reasons" as if they were interchangeable, yet what the applicants sought was something which travelled beyond "grounds". The ground upon which an order is made under s. 18 is that the person in question is a prohibited immigrant. The making of the order expresses the ground. Whether the ground is correct in a given case is a matter for judicial determination because the order is invalid if the person does not have that character. The Minister's reasons for making the order may, and very likely will, include considerations of government policy which, whether they lend themselves to disclosure or not, the statute does not oblige him to disclose. When the statute imposes no such obligation the court is not justified in creating indirectly a like obligation by holding that the Minister is under a duty of the kind suggested.

Moreover, the contrast between s. 18 and s. 14 supports the inference that the Minister is under no general duty to give notice to a prohibited immigrant before proceeding to make an order under s. 18, an inference that might in any event be drawn from the nature of the power and the necessity or desirability of ensuring in an appropriate case that deportation takes place with all due speed. No doubt cases have arisen or will arise when it is imperative in the interests of national security that a prohibited immigrant who has entered without a permit or whose entry permit has expired or been cancelled should be deported without delay. The Act does not inhibit speedy deportation once a person becomes a prohibited immigrant and the considerations already mentioned suggest that the Act authorizes such a course where it is considered appropriate. If the Minister declines to make a deportation order in relation to a prohibited immigrant in the ordinary case it will be because he considers that the immigrant should be permitted to remain in Australia by means of an entry permit or further entry permit. Indeed, in this case the reasons advanced on behalf of the applicants against the making of the deportation orders were the very reasons put forward for the grant of further entry permits. What the applicants sought was an alteration in their status as prohibited immigrants, an alteration which would deprive the Minister of the power to act under s. 18. This alteration in status could be achieved only by the grant of a temporary entry permit under s. 6 (5) and (6). And it is difficult to see why an obligation to give advance notice of the grounds upon which an application for a permit will be refused should be imported into the grant or refusal of such a permit in the ordinary course of things. As a temporary entry permit may be cancelled at any time as a matter of absolute discretion (s. 7 (1)), the grant or refusal of such a permit must itself be a matter of absolute discretion. It is for the applicant to include in his application such material as he thinks will influence the grant of a permit. The officer who deals with the application may reject that material and in doing so he may take an incorrect view of the facts. But the court has no jurisdiction to review his exercise of discretion or to point out to him where he has gone or may go wrong. It is not a case in which natural justice or fairness dictates that an advance notice be given; it is not a case in which a charge is brought against a person or in which a person is deprived of a right or the legitimate expectation of a benefit. The considerations affecting the grant or extension of entry permits are very different from those relating to the renewal of licences - see Schmidt v. Secretary of State for Home Affairs [21] .

There is no such similarity between the facts in this case and those in Salemi v. MacKellar [No. 2] [22] as would lead me to the same conclusion as I reached in that case. The applicants entered Australia on 13th February 1976 on temporary entry permits allowing them to remain in Australia for one month. Extensions were granted until 13th August 1976 but on that day they became prohibited immigrants. On 21st February 1977 deportation orders were made. There is nothing in the evidence to support a view that the orders were made for any reason other than that the applicants were prohibited immigrants and pursuant to a general policy of ordering the deportation of prohibited immigrants.

Representations were in fact made to the Minister on behalf of the applicants and replies were sent by the Secretary of the Department of Immigration and Ethnic Affairs and later by the Minister himself. It has been attempted to extract from those replies some evidence that the Minister acted on mistaken facts when he made the orders in order to base a claim that an opportunity ought to be given to the applicants to have the mistakes corrected and the question of deportation reconsidered. The attempt so to do fails. The Minister's letter makes it clear that the applicants come within no category under which as a matter of policy entry permits would be granted or extended. They do not fall either into the migrant category or the student category. It would also appear to be policy that a person cannot arrive under the category of visitor and subsequently seek an advantage over other people overseas who disclose before arrival that they would wish to migrate to Australia or to undertake a course of study in Australia. The Minister in his long letter to the applicants' solicitors, expressing his reasons, referred to "evasion of immigration controls" and to "deception to evade immigration controls". He was clearly referring to the general problem and to the general policy adopted to deal with the problem. There is nothing to show that the Minister's order was motivated by a view that the applicants had practised a deception at the time of their initial entry. It is inconceivable that in the implementation of policy the Department or the Minister or officers under the Act are required to distinguish between cases where there was at the time of entry an undisclosed intention to make a further application for an entry permit to remain in Australia and cases where the intention was formed after the initial entry.

Since the Minister made the orders because the applicants were prohibited immigrants he was not bound to state his reason or to give an opportunity to make submissions. In fact that opportunity was given, the submissions were fully considered and reasons for rejection of them were given in considerable detail, based on broad policy considerations.

This is an original proceeding against the Executive Government Officer responsible for the administration of the Migration Act 1958, the Minister for Immigration and Ethnic Affairs. The applicants overstayed their temporary entry permits and are therefore prohibited immigrants (see s. 7 (3) of the Act) whose deportation may be ordered by the Minister under s. 18 of the Act. The natural meaning of s. 18 is that the Minister has a discretion to order deportation; he may but need not order deportation. The Act has been administered on the basis that the power is selective. Over the years, orders for deportation have not been made against many thousands of prohibited immigrants. This meaning is confirmed by s. 38 (3) which refers to a period for the Minister "to consider whether a deportation order should be made". If there were no discretion, the Minister would be cast in a "rubber stamp" role inconsistent with his high office.

The Migration Act was an attempt to abolish the procedures under which the deportation laws could be administered arbitrarily and inhumanely. It was primarily aimed at removing the mischief of the existing laws, in particular the much abused dictation test (see the Egon Kisch Case, certain aspects of which were dealt with by this Court in R. v. Carter; Ex parte Kisch [23] ; R. v. Wilson; Ex parte Kisch [24] ) and at ensuring that deportation powers would be exercised not only in the national interest, but in a humanitarian way (with proper regard to the welfare of the persons affected). In Salemi v. MacKellar [25] , the Court considered whether the Minister's power must be exercised in accordance with natural justice. In my opinion, it must be.

(1934) 52 C.L.R. 221. 2. (1934) 52 C.L.R. 234. 3. Ante, p. 396.

The doctrine of natural justice is not a modern development; it is traditional in most English speaking countries. It is an aspect of due process, traceable in English law at least back to Magna Carta. This referred to "the law of the land" which became "due process" in the statutory version of 1534: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law" (28 Ed. III c. 3). Coke, who translated "the law of the land" as "due process" regarded the concept as fundamental and Magna Carta in this respect as merely declaratory of the old law of England (Second Institutes, ss. 50-51).

In the American colonies, "the law of the land" and "due process" were used interchangeably. The concept found its way into the United States Constitution and most of the State Constitutions in the guarantees of due process (see generally Constitution of the United States of America, Analysis and Interpretation, Senate Document 92-82, p. 1137). In what has become a classical description of due process, Frankfurter J. said:

It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply inbedded in the traditions and feelings of our people as to be deemed funadmental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just. (Solesbee v. Balkcom [26] ). The same concept is often now referred to as "the rule of law", "natural justice" or "fairness". I leave aside whether this basic constitutional concept is implied in the Australian Constitution. At the least, it is part of the federal common law of statutory powers, and applies unless excluded by the legislation. There is a strong presumption that the legislature intends due process to be observed in exercising judicial or administrative power. This presumption will not be displaced except by unambiguous, that is unmistakeable language; any other approach by the courts underestimates Parliament. The modern history of the Australian Parliament shows a disposition against granting or continuing arbitrary powers. 1. (1950) 339 U.S. 9, at p. 16 [94 Law. Ed. 604, at p. 609].

The courts have long required observance of due process in the exercise of statutory powers affecting property rights. The former almost exclusive emphasis on property rights is a reflection of nineteenth century values and does not represent current values. The concept is not limited to property nor to what may be strictly described as rights.

Deportation is always very serious. Although it is not a criminal proceeding, it imposes a severe penalty and may inflict considerable hardship. It may adversely affect the person deported in personal and business relationships, employment and other ways. There is no insuperable administrative difficulty in observing natural justice when making an order under s. 18. This conforms with the experience of the United States where aliens, at least in peacetime, are protected by the due process clause in deportation proceedings (United States; Ex rel. Vajtauer v. Commissioner of Immigration [27] ). Section 38 of the Act enables the detainment of a prohibited immigrant while it is decided whether an order for deportation should be made.

(1927) 273 U.S. 103, at p. 106 [71 Law. Ed. 560, at p. 563].

The presumption that Parliament intends official behaviour towards individuals to be governed by civilized standards (embraced in natural justice and other aspects of due process) extends to persons who are not Australians. The applicants are British subjects, but not Australian citizens.

The applicants claim that the Minister denied natural justice by making the order without allowing them an opportunity to be heard against it. The only arguable basis for a finding of denial of justice is that the applicants were unaware of the contents of two departmental reports which the Minister relied on in making the order. The Solicitor-General (on behalf of the Minister) assured the Court that there was nothing in the reports which required clarification or answering by the applicants. Representations were made on the applicants' behalf before the order. Their case was not properly presented and they have now dissociated themselves from some of the statements made on their behalf. This was not the Minister's fault.

The respondent contended that natural justice (if it was required and the applicants were entitled to be heard) would be satisfied if, after an order was made and before its execution, an opportunity were given to show why it should be revoked. On the evidence, it is clear that since making the order, the Minister has given careful attention to the applicants' representations. In some cases (De Verteuil v. Knaggs [28] ; Cooper v. Wandsworth Board of Works [29] ; Jones v. Jemalong Shire Council [30] ;Vestry of St. James and St. John, Clerkenwell v. Feary [31] ), the requirement to give an opportunity to be heard was regarded as satisfied if the opportunity is given either before or after the order is made, but before it is executed. In Delta Properties Pty. Ltd. v. Brisbane City Council [32] , the Court referred to " the prior observance of the fundamental principles of natural justice" [33] and to the opportunity to be heard as "a pre-requisite" [34] . The Act does not provide for any stay between the order and its execution, although no doubt the Minister may modify or revoke his order. There is a great difference between an opportunity to be heard before an order is made and an opportunity to show why an order should be revoked (see Lowe J. in R. v. Milk Board; Ex parte Tomkins [35] ). In my opinion, under s. 18 the opportunity must be given before the order. I find that the Minister has not denied natural justice.

[1918] A.C. 557. 2. (1863) 14 C.B. (N.S.) 180, at p. 194 [143 E.R. 414, at p. 420]. 3. (1953) 53 S.R. (N.S.W.) 427, at p. 438. 4. (1890) 24 Q.B.D. 703. 5. (1955) 95 C.L.R. 11. 6. (1955) 95 C.L.R., at p. 18. 7. (1955) 95 C.L.R., at p. 22. 8. [1944] V.L.R. 187.

The facts giving rise to these applications are stated in the judgment of Gibbs J. and I need not repeat them here.

In Salemi v. MacKellar [No. 2] [36] I agreed with the reasons expressed by Gibbs J. for the conclusion that the power of deportation given to the Minister by s. 18 of the Migration Act 1958 Cth, as amended, is not limited by a requirement that he observe or comply with the principles of natural justice and that under that section the Minister is not obliged to provide an opportunity for a prohibited immigrant to be heard before making a deportation order. Nothing that has been advanced in argument in the present case has led me to reach a different conclusion concerning the proper construction of s. 18 and the nature of the power which it confers upon the Minister. We were pressed with an argument based on the difference between the words "may, in his absolute discretion," as applied to the Minister's power to cancel a temporary entry permit under s. 7 (1), and the words "may order the deportation" in s. 18. It was said that this indicated that the power under s. 18 was controlled by the requirements of natural justice - I cannot accept this argument because it appears to me that the "absolute" nature of the power under s. 7 (1) points to the power under s. 18 having a like character. The exercise of the power under s. 7 (1) has the effect of making the person concerned a "prohibited immigrant", that is a person who has no right to remain in the country. The acquisition of that status renders the person concerned liable to be deported. A decision to revoke a temporary entry permit can be directed to no other purpose than the deportation of the person concerned. To regard the deportation power as limited in those circumstances would be contrary to the scheme of the statute. Section 7 (1) therefore does not support the applicants' argument.

In the present case there are no facts comparable to those which some members of the Court, in Salemi v. MacKellar [No. 2] [37] , regarded as giving rise to an obligation on the Minister to observe the requirements of natural justice in those particular circumstances.

The Minister in fact received submissions made on behalf of the applicants and, both through his Department and personally, replied to those representations and indicated his reasons for making a deportation order. Taking the view, as I do, that the power given by s. 18 is not subject to compliance with the requirements of natural justice, I express no opinion as to what the position would be if that section bore some other construction.

I am therefore of opinion that these applications should be dismissed.

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)