Znaty v Minister Of State For Immigration

Znaty v Minister Of State For Immigration - [1972] HCA 14 - HCA 1972 case summary — Zoe

[22]

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.

[29]

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.

[34]

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] .

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Before

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Judgment (38 paragraphs)

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Cases Cited (1)