Znaty v Minister Of State For Immigration

27 (1). 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 a person so arrested may, subject to this section, be kept in custody as a deportee in accordance with sub-section (6) of this section.

(6) A deportee may be kept in such custody as the Minister or an officer directs -

(a) pending deportation, until he is placed on board a vessel for deportation;

(b) at any port or place in Australia at which the vessel calls after he has been placed on board; or

(c) on board the vessel until her departure from her last port or place of call in Australia.

An application was made to the Supreme Court of New South Wales for a writ of habeas corpus and in that proceeding the lawfulness of the keeping of the plaintiff in custody was challenged. That application was dismissed. There was no application to this Court for a writ of habeas corpus or for a declaration that the plaintiff was unlawfully in custody.

The injunctions sought by the notice of motion were to restrain the defendants "from ordering that the plaintiff be conveyed to Morocco" and to restrain them "from authorizing any officer (as defined in the Act) to require the master, owner, agent or charterer of any vessel or aircraft to receive on board the plaintiff for conveyance to Morocco".

An affidavit filed on behalf of the plaintiff stated that he was arrested on 2nd December 1970 and was shown the deportation order and told that he was to be deported. He said to the officer that he intended to leave for Japan on 4th December and he produced an airline ticket and visa. He was taken to prison. The following day he was told by an officer of the Immigration Department "I believe you are to be deported". The plaintiff then said that he had a ticket to leave immediately and asked could he go. He was told he could not leave for Japan and that he was to be deported on Sunday morning (that is 6th December) on a Qantas flight to Morocco. According to the affidavit the plaintiff's home is in France. He has not lived in Morocco since 1955. He has a Moroccan passport which was renewed in Paris. He did not desire to go to Morocco. He wished to carry on with his work "preferably by travelling to Japan". He would be "happy to go to Noumea".

The master, owner, agent or charterer of a vessel shall, on being required in writing by an authorized officer so to do, receive a deportee on board for conveyance to a place specified in the requirement, being a place to which the vessel is bound, and also receive on board, for such time as is required by the authorized officer, a person charged with the custody of the deportee.

(2) For the services specified in the last preceding sub-section, the Commonwealth is liable to pay such reasonable passage money and other charges as are demanded.

(3) An officer shall not make a requirement under sub-section (1) of this section unless he is satisfied on reasonable grounds that the deportee will be permitted to and at the place specified in the requirement, and it is a defence to a prosecution for a contravention of that sub-section if the defendant proves that, if the requirement had been complied with, the deportee would not have been permitted to land at the place specified in the requirement.

Counsel for the defendants informed the Court that it was not intended that a requirement in writing would be made in the terms set out in s. 22, but it was intended to arrange that the plaintiff be placed on a Qantas aircraft on a flight which would connect with a flight to Morocco. A ticket to Morocco would be obtained and the Commonwealth would pay for it. It was not intended that any attempt would be made by or on behalf of the Commonwealth to prevent the plaintiff from leaving the aircraft after it had left Australia or to ensure by physical restraint or by surveillance that the plaintiff left the aircraft at Morocco and at no other place outside Australia.

Counsel for the defendants was not prepared to concede that it had been proved or admitted that there was any threat to do the acts against which injunctions were claimed by the notice of motion. But whether or not the notice of motion was in an appropriate form, it was necessary to consider the material before the Court to see whether it had been made to appear that the defendants threatened or intended to do, or to cause to be done, any act which was an unlawful invasion of some right of the plaintiff in respect of which he was entitled to seek an injunction from the Court. The plaintiff made no claim, nor could he have supported any claim, that the deportation order was invalid. Nor was the Court asked for any declaration that the plaintiff was not lawfully in custody or for any relief on that basis. In the course of the argument a suggestion was made that because the plaintiff had said, in effect, that he was able and willing to leave Australia for Japan on 4th December, his detention after that date was not authorized. But in my opinion, it was not possible for the Court to deal with the matter on that basis. As will appear, it is my opinion that the powers given by the Act are not so limited as to make it unlawful to detain a deportee pending his deportation, if he has made an offer to leave the country at a time and in a manner chosen by himself. But in any event, on the material before the Court and as the proceedings were framed, it would not have been proper in my opinion to make an order restraining the defendants from preventing or impeding the plaintiff from leaving Australia by an aircraft bound for Japan. No such order was sought.

What the plaintiff did claim, according to my understanding of the submissions made on his behalf, may be stated as follows: (1) No power is given by the Act to the Minister to select a destination to which a person is to be deported. (2) It was shown by the evidence and by the statements of counsel for the defendants that the Minister had selected a destination to which the plaintiff was to be deported. (3) The arrangements which the Minister had made or intended to make for the departure of the plaintiff on a Qantas aircraft, as set out above, were steps taken to give effect to a decision that the plaintiff was to go to Morocco and they were not steps which could be regarded as being taken for the purpose of carrying into effect the deportation order. (4) Therefore, the Minister should be restrained from proceeding to carry out the proposed arrangements.

Before examining the legal questions raised by those submissions I wish to advert to a question of fact. On the material before the Court I think that the inference is open that the Minister (or his agent dealing with this matter) decided that the course which ought to be taken in relation to the plaintiff was to make arrangements which would have the practical effect that he would go (in all probability) to Morocco and not elsewhere. It appears, I think, that the choice of the particular flight was not made at random or because it was the first flight upon which the plaintiff could be taken. It was made because the Minister, no doubt for reasons which seemed good to him, preferred that the plaintiff should go to Morocco. There may be room for argument as to whether there was sufficient admissible evidence to prove that this was so. But I propose to assume in favour of the plaintiff that it was so.

I do not accept the view that the fact, if it were the fact, that the Minister desired and intended that the plaintiff should go to Morocco rendered the actions taken or proposed by him or his agents in any way unlawful. In my opinion the Minister may determine the way in which a deportation order is to be carried out and may choose the vessel or aircraft in which the deportee is to leave the country. The steps taken in the exercise of those powers are not invalidated if the intended practical result is the arrival of the deportee in a particular country. I shall seek to explain my reasons for thinking that the terms of the Act and such judicial pronouncements as are relevant support the opinion I have just stated. If that opinion be correct, I think it is clear that the application was rightly dismissed.

No question has been raised as to the validity of any of the provisions of the Act. As was mentioned in the course of the argument, it is proper to bear in mind that the Act was enacted under the powers conferred on the Parliament by the Commonwealth Constitution. But this does not seem to me to require any relevant limitations to be placed, by a process of construction, upon the natural meaning of its language or upon what may properly be implied from its provisions: cf. Attorney-General (Canada) v. Cain [1] . The effect of a deportation order is stated in general terms in s. 20. It is provided that the person named in the order "shall be deported accordingly". There is no provision, such as that which was contained in the Order in Council discussed in some English cases to which I shall refer later, stating that the effect of the order is that the person named "shall forthwith leave and thereafter remain out of" the country. That is to say, there is no provision suggesting that the primary intended consequence of an order is a voluntary departure by the person against whom an order has been made. The language of s. 20 suggests that action will be taken against the deportee by the appropriate authorities. So does the language of s. 39. Its provisions, authorizing the arrest of the deportee and his detention in custody "pending deportation, until he is placed on board a vessel for deportation" and afterwards until the vessel has left Australia, are not made subject to any proviso preventing them from operating when an offer is made of a voluntary departure to a place selected by the deportee.

The provisions of s. 22 make it clear that a place may be selected as that to which an authorized officer will require the master etc. of a vessel to convey the deportee, provided that the officer is satisfied on reasonable grounds that the deportee will be permitted to land at that place and provided it is a place to which the vessel is bound. Such a requirement renders the master etc. liable to a penalty if he does not comply with it, subject to its being a defence if the defendant proves that the deportee would not have been permitted to land at the place specified. The intention is here disclosed by the Act that the authorities may select a place to which the deportee is to go and may then take steps designed to produce the result that he goes to that place. Like s. 39, this provision is in no way limited by any exception making it unavailable if the deportee offers a different arrangement for his departure from the country.

It has been suggested that in a case in which it is supposed that a deportee is willing and able to go from Australia to some particular country and offers to do so, the only power which the Minister (or any officer acting under his authority) then has is to take such steps as may be necessary to see that the deportee abides by his offer, those steps including taking him into custody and keeping him in custody until he does so. It is suggested that the end sought to be achieved by the making of a deportation order is simply that the person shall leave the country and that purpose will be fully effected by a voluntary departure. It is suggested that from this it follows that the Act should be read as giving no authority to do anything more than is necessary in such a case to supervise his voluntary departure. But I do not find anything in the Act which warrants the conclusion that where a prohibited immigrant against whom a deportation order has been made offers to leave the country at a time and in a manner proposed by him and, in fact, available to him, the Minister is without power to make his own decision and to give effect to the deportation order in a way which to him seems proper, including the selecting by him of the time at which and the manner in which the deportee should leave the country. The provisions to which I have referred seem incompatible with such a conclusion. I do not accept the view that any departure from the country must be regarded as being just as effective as any other departure, for the purposes of carrying into effect an order that a person shall be deported. I do not mean that the Minister is bound to reject an offer of a voluntary departure. I think that he has the power to accede to it if he thinks fit and has power to give effect to his own decision if he does not see fit to accept what is proposed by the prohibited immigrant. That was the view taken in R. v. The Governor of H.M. Prison at Brixton and the Secretary of State for Home Affairs; Ex parte Pawel Sliwa [1] , as to the effect of the enactment there considered, which contained provisions more favourable to the opposite view than are those of the Act.

It was suggested in argument that deportation can have no purpose except the physical removal of a person from the territory of the deporting country, and that in exercising a power to deport the only action which may lawfully be taken is an action which is necessary to achieve that purpose. It was suggested that several consequences flow from this. One is that if the deportee is able and willing and offers to leave the country no step can be taken except to keep him under surveillance and, if necessary, to hold him in custody pending his fulfilment of his offer. Another consequence is that it is no concern of the deporting authority to consider what country is willing to receive the deportee. Therefore, it is extraneous to the exercise of the power to deport to consider whether or not it is desirable to send a man to a country which is known to be unwilling to receive him or to consider whether or not it is probable that he will still be on board the ship or aircraft which takes him away, when it returns to this country. I do not find these propositions acceptable. I do not think that the concept of deportation has been regarded in any of the cases which I have examined, or should be regarded, as restricted in the way and to the extent suggested or that the word "deport" and its derivatives should be assumed to have been used in an Act relating to deportation with such a limited meaning. It was not so regarded in Robtelmes v. Brenan [2] . (See the judgment of O'Connor J. [3] and that of Barton J. [4] .)

1. (1906) 4 C.L.R. 395. 2. (1906) 4 C.L.R., at pp. 420-422. 3. (1906) 4 C.L.R., at p. 411.

I have stated the opinion that it is for the Minister to decide by what vessel or aircraft a deportee shall be taken from this country. According to s. 39 he may be kept in custody "pending deportation, until he is placed on board a vessel for deportation". It is not necessary here to decide what legal remedy if any would be available against an oppressive use of that power, as a result of which a man was kept in custody for an inordinately long time. That question does not arise. It is not in my opinion a tenable view of the Act that it is mandatory to place the deportee on the first "vessel" which sails or which leaves the nearest airport after the arrest of the deportee. But unless that be mandatory, the lawfulness or otherwise of the course taken or proposed in the present case cannot be determined by reference to the possibility that in some cases the powers given by the Act might be abused.

I must now consider some authorities to which we were referred. Counsel for the plaintiff relied on statements made in some of the cases to the effect that the Secretary of State or the Minister could not order deportation to a particular country or place. Indeed this is the foundation of the plaintiff's argument. But in the same cases it was laid down that there was nothing unlawful in placing the deportee on a ship or aircraft selected by the Secretary of State or the Minister, although it was openly acknowledged that it was selected because it was going to a particular country and would almost certainly convey the deportee to that country and because it was the desire and the intention of the authorities that he should be conveyed to it. On this question the cases to which I wish to refer are R. v. Secretary of State for Home Affairs; Ex parte Duke of Chateau Thierry [1] ; R. v. Superintendent of Chiswick Police Station; Ex parte Sacksteder [2] ; Ferrando v. Pearce [3] ; and R. v. Governor of Brixton Prison; Ex parte Soblen [4] .

1. [1917] 1 K.B. 922. 2. [1918] 1 K.B. 578. 3. (1918) 25 C.L.R. 241. 4. [1963] 2 Q.B. 243.

If those cases are used to support the argument for the plaintiff, it must appear that the dicta that deportation may not be ordered to a particular country should be accepted but the proposition, essential to the decision of the cases, that the Minister or the Secretary of State had a complete discretion in selecting the ship or aircraft and could do so in such a way as to achieve the practical consequence which he desired, should be rejected. These cases do assert in the clearest terms that you may lawfully achieve indirectly your object of getting the deportee to a particular country although you may not order directly that he is to go to that country. These cases have caused me some difficulty. The difficulty would have been lessened if I could have felt satisfied that the cases may be explained on the ground that the basis of the right to act so as to ensure (as far as possible) that a deportee went to a particular country was a power derived from an independent legal source, apart from the statutory provisions dealing with deportation which were considered in those cases. But I am not satisfied that that explanation is acceptable. It is true that in Ferrando v. Pearce [3] references were made to the defence power and the provisions under review were contained in the War Precautions Act 1914-1916 Cth and in an Order made under it. But much of the reasoning of the members of the Court was not dependent upon this being a war-time measure. They accepted what had been said in the case of the Duke of Chateau Thierry [1] . That case also was a war-time case but, of course, no question there arose of a need to justify the legislation, or any act done under it, by reference to a specific source of constitutional power. In Ferrando v. Pearce [2] , Barton J. said:

It was argued that the Minister's power is simply to deport, and not to send the alien to any particular place. That is perfectly clear. But it is equally clear that a person cannot well be deported in a ship bound nowhere. The power is exhausted when the alien is placed outside the territorial limits of the deporting country - in this instance, Australia. Did the Minister contemplate or has he attempted or threatened to do anything beyond that? Suppose that by the Minister's authority the plaintiff is placed on board a vessel bound for Italy. It is not for the alien to choose his ship, and there is no authority other than the Minister or some power above him to make the choice. The choice is reposed in the Minister until the regulation is altered or expires. There is nothing to prevent him from choosing a ship bound for China, so far as the execution of his power of deportation is concerned. If he chooses a ship bound for Italy, that cannot possibly be said to make the deportation an abuse of his power or in any sense an illegality. That passage seems to me to be quite opposed to the argument for the plaintiff in the present case. One statement made by Barton J. needs a word of comment. His Honour said that the power to deport "is exhausted when the alien is placed outside the territorial limits of the deporting country - in this instance, Australia". If that meant that it is a necessary characteristic of every statutory power to deport that it is exhausted as soon as the deportee is placed outside the territotial limits, it would not be consistent with cases in which it has been held that the statutory regulation of deportation may include provisions for extra-territorial constraint, because these may be necessary in order that the power to deport may be rendered effective: see Cain's Case [3] and Zabrovsky v. General Officer Commanding Palestine [4] . In considering what Barton J. said, it should be noticed that under the particular enactment which he had to consider the provisions for the detention of the deportee were expressed to operate "until the ship leaves the Commonwealth". Likewise in the Duke of Chateau Thierry's Case [1] , which Barton J. examined in detail and on which he relied, the provisions concerning detention operated "until the ship finally leaves the United Kingdom". In relation to legislation containing such a provision, there is a sense in which it is true to say that the power is exhausted when the alien reaches a point outside the territorial limits. Later in his judgment, Barton J., after quoting passages from the Duke of Chateau Thierry's Case [1] , said [2] : While admittedly there would be good ground for restraining and preventing an illegal act intended to be done under a valid order, yet it is abundantly clear that no member of the Court of Appeal considered that there was anything illegal in that which the Secretary of State avowedly intended to do. And in this case the avowed intention of the Minister for Defence is to all intents and purposes of an identical nature. The concluding words of the judgment of Swinfen Eady L.J. [3] decisively show that the Court of Appeal perceived no illegality in the intended action. 1. (1918) 25 C.L.R. 241. 2. [1917] 1 K.B. 922. 3. (1918) 25 C.L.R., at pp. 248-249. 4. [1906] A.C. 542. 5. [1947] A.C. 246, at p. 262. 6. [1917] 1 K.B. 922. 7. [1917] 1 K.B. 922. 8. (1918) 25 C.L.R., at p. 252. 9. [1917] 1 K.B., at p. 932.

In the Duke of Chateau Thierry's Case [1] the Court considered that there was nothing illegal in what the Secretary of State avowedly intended to do although the Court said [4] that the Executive Government has no power to order a deported alien to go to any particular place. Their Lordships did not set out any detailed reasons for that latter statement. But what they did make clear was that they were giving a decision based on the language of particular statutory provisions. They were not stating abstract propositions about the nature of deportation. When they spoke of a lack of power to order a deportee to go to a particular place, it may be that they had in mind that under the relevant provisions one effect of an order was that the deportee was commanded (by the Order in Council) to leave the United Kingdom forthwith. It may have been thought that it would not be in conformity with the intention indicated by that provision, if in the deportation order itself he was ordered to be deported to a specified place. If the deportee were to reach a place outside the jurisdiction, whether or not he did this as the result of complying with the statutory direction that he should "forthwith leave", there would be no sanction by which there could be enforced against him an order or direction to him to go to a particular country specified by the Secretary of State (see the argument addressed to the Court in Soblen's Case [5] ).

1. [1917] 1 K.B. 922. 2. [1917] 1 K.B., at p. 931. 3. [1963] 2 Q.B. 243, at p. 293.

Whatever considerations should be regarded as underlying the opinion of their Lordships that there was no power to order deportation to a particular country, it is clear, as Barton J. said, that the members of the Court of Appeal perceived no illegality in the action intended to be taken in the Duke of Chateau Thierry's Case [1] . The same view was taken by the Court of Appeal in Sacksteder's Case [2] . There the Court referred to what had been stated in the earlier case concerning the effect of a clause in the Order in Council. Pickford L.J. said [3] :

We expressed an opinion that that Act and that Order did not give the Government or the Secretary of State power to make an order deporting to a particular destination, and that if an order were made to deport to any particular country or any particular destination, that order could not be supported under the legislation and the Order in Council. We also expressed another opinion that under art. 12, cl. 2, an alien whom the Secretary of State ordered to be detained until he could be conveniently conveyed to and placed on board a ship about to leave the United Kingdom, and whilst being conveyed to the ship and whilst on board the ship, could be placed on a ship that was selected by the Secretary of State. I do not think that cl. 2 of art. 12 can be read without seeing that, although it does not say that the Secretary of State may select the ship upon which the alien is to be placed, it must be left to him to choose the ship. It would be almost impossible to work a regulation which provided that the Secretary of State should convey a man to a ship and place him on board of it, and at the same time gave that man the choice of the particular ship. Warrington L.J. said [4] : The power to select the particular ship indirectly undoubtedly involves a power on the part of the Secretary of State to send the man to a particular country selected by the Secretary of State. What was stated by Scrutton L.J. [5] was to the same effect. Those statements were not based on the circumstance that a state of war existed. They were based upon the terms of the Order in Council and in particular on art. 12 (2) thereof, which does not differ in any relevant way from s. 39 of the Act. 1. [1917] 1 K.B. 922. 2. [1918] 1 K.B. 578. 3. [1918] 1 K.B., at p. 584. 4. [1918] 1 K.B., at p. 588. 5. [1918] 1 K.B., at p. 591.

In Soblen's Case [6] , the Aliens Order, 1953, under which the appellant had been ordered to be deported had been made under the Aliens Restriction Act, 1914, as amended (U.K.), and as continued in force from year to year by other Acts. The order contained provisions [1] as to the effect of a deportation order and as to the powers of detention of the deportee which were not substantially different from those considered in the earlier English cases cited above. In the Aliens Order there were also provisions for dealing with an alien who was refused leave to land and these included a provision under which a direction could be given requiring an owner or agent of a ship or aircraft to remove a person in a ship or aircraft bound for a specified country. But no such power was included expressly in the provisions relating to deportation. At first instance the argument was pressed [2] that there was no power to deport to a specified country. In the Court of Appeal it was argued that it was clear that the deportation procedure was being used, not simply to get the appellant out of the country, but to bring about the result that he would be surrendered to the authorities of a particular country. It was argued [3] that if the Home Secretary's policy was simply to expel the applicant, he could have been sent to Czechoslovakia which was willing to receive him or to Israel, to which country the airline was willing to take him. These arguments failed. Lord Denning M.R. [4] referred to the visa which had been obtained for Czechoslovakia and his Lordship merely added: "But the Home Secretary, it may be presumed, did not wish him to go there." As to this aspect of the case see also [5] . In Soblen's Case [6] , although it did not arise during a time of war and although the deportee was (it appeared) able and willing to go elsewhere, it was clearly affirmed (in relation to legislation which in my opinion does not differ materially from that with which the present case is concerned) that the Secretary of State was entitled to select the aircraft by which the deportee was to leave the country and was enabled by selecting it to determine indirectly but effectively his destination. It is clear also that the view was not accepted that in deciding what steps should be taken in implementing a deportation order, the Home Secretary was entitled to consider only what was necessary to bring about the actual removal of the deportee to a place outside the country's boundaries. On that question I refer to the judgment of Donovan L.J. [7] and to that of Pearson L.J. [8] .

1. [1963] 2 Q.B. 243. 2. [1963] 2 Q.B., at p. 245. 3. [1963] 2 Q.B., at p. 256. 4. [1963] 2 Q.B., at p. 288. 5. [1963] 2 Q.B., at p. 303. 6. [1963] 2 Q.B., at p. 308. 7. [1963] 2 Q.B. 243. 8. [1963] 2 Q.B., at p. 310. 9. [1963] 2 Q.B., at pp. 313-314.

In Soblen's Case [6] it was held that there was nothing to show that the deportation procedure was being used as a mere sham in order to effect another purpose. In my opinion there is no reason to suggest in the present case that the procedure was being used as a sham.

I am of opinion that, apart from judicial authority, a consideration of the terms of the Act and of the facts of the case, so far as they have been disclosed to the Court, would lead to the conclusion that it has not been shown that any unlawful act has been committed or threatened against the plaintiff by the defendants. I am of opinion also that the cases to which I have referred provide no support for the applicant's claim for relief but on the contrary provide strong persuasive authority against that claim.

For these reasons I am of opinion that the application could not succeed and was rightly dismissed.