Sinnathamby and Others v. Minister for Immigration and Ethnic Affairs
- Author: Australia: Federal Court
- Document source:
-
Date:
5 June 1986
A citizen of Sri Lanka arrived in Australia, ostensibly in transit to Fiji, in October 1985. On the expiry of a short temporary entry permit she became a prohibited non-citizen. She applied for refugee status and for resident status under s 6A of the Migration Act 1958 (Cth). The application for refugee status was rejected by the Determination of Refugee Status Committee, and that decision was endorsed by the Minister's delegate. The application for resident status was also refused and a deportation order made under s 18 of the Migration Act. On an application to review the decision to make a deportation order, based on s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), a single judge of the Federal Court of Australia upheld the administrative decisions. The applicant and four others in substantially the same position lodged one notice of appeal against the deportation order (rather than the refusal of refugee and permanent resident status) to the Full Court of the Federal Court.
Held, per Fox and Neaves JJ (Burchett J dissenting), dismissing the appeal with costs: -
(i) The failure to make known to the appellant the information on which the decision as to her refugee status was based was not a denial of natural justice.
Kioa v Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321, considered.
(ii) The failure of the delegate of the Minister to inform the appellant that she was regarded as having sought entry into Australia by a subterfuge was not a denial of natural justice since the appellant herself was the source of the relevant information.
(iii) The trial judge was not in error in rejecting the contention that the Minister's delegate:-
(a) failed to consider the consequences of deportation to the appellant individually (s 5(2)(a)) or that he applied policy without regard to the merits of the case (s 5(2)(f));
Sean Investments v MacKellar (1981) 38 ALR 363; Gurleven v Minister for Immigration and Ethnic Affairs (unreported, 24 February 1984, Full Federal Court); Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 59 ALR 51, referred to.
(b) ordered the appellant's deportation merely because she was a prohibited
Tagle v Minister for Immigration and Ethnic Affairs (1983) 46 ALR 379; Minister for Immigration and Ethnic Affairs v Tagle (1983) 48 ALR 566, considered.
Appeal
This was an appeal to the Full Court of the Federal Court of Australia against the finding of a single judge of that court that the decision to issue a deportation order against the appellant was properly made.
Fox J. We are hearing appeals in five matters, but, following the course taken by the learned judge (Morling J), I will discuss one only because the others are so far as relevant in the same position and it is agreed that they will stand or fall with it. In fact, they lodged the one notice of appeal, and hence there is the one file number. The particular application, that of Rosemalar Manuelpillai, was made under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) for review of a decision to make a deportation order which was made against her under s 18 of the Migration Act 1958 (the Act) on 13 December 1985.
The primary application was based on paras (a), (b) and (e) of s 5(1) of the Judicial Review Act. Section 5(l)(e) deals with improper exercise of power, and is elaborated by s 5(2) to include particular aspects relied upon below, namely the taking into account of irrelevant considerations (para (a) of s 5(2)) and the failure to take into account relevant considerations (para (b) of s 5(2)). The scope of these latter provisions was discussed by Deane J in Sean Investments v MacKellar (1981) 38 ALR 363 at 374-5; by Fox J in Gurleven v Minister for Immigration and Ethnic Affairs (unreported, 24 February 1984, Full Federal Court) and by Bowen CJ in Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 59 ALR 51. Before us, there was no submission based on s 5(2)(b), but it was stated that paras (a), (f), (g) and (h) of s 5(2) applied.
The applicant arrived in Australia by air on 23 October 1985 ostensibly as a transit passenger on her way to Fiji. She was granted a temporary entry permit valid until 26 October. She overstayed and became a prohibited non-citizen. She was however invited by Immigration officials whom she went to see on 25 October (a Friday) to return to see them on 28 October (a Monday). She did this, but after further discussion, she was taken into custody.
The central factual consideration, so far as the applicant is concerned, is that she is a Tamil and her home is in Sri Lanka, where for some time, it is alleged, the Tamil minority, or a section of it, has been subject to ill-treatment, often of a physical nature, at the hands of the Singhalese, who are in the majority. The applicants all fear that they may be made to suffer more because they have fled the country, or at least attempted to remain away from it. The particular applicant fears her position may be even worse because her brother escaped to West Germany while conditionally released from detention.
The applicant had been in Singapore since December 1981, where she worked. She was 24 in 1981, and although she had been trained as a nurse, she apparently worked in Singapore, in some other capacity, in a clothing factory. When she left, her permission to remain had expired, or was about to. Before she left she was told by a travel agent in Singapore that some countries, such as the United States of America, Canada and Australia would not issue visas to Sri Lankans. She did not seek permission to enter or stay in Australia before leaving Singapore, but was advised that one course might be to take a ticket to Fiji, and on arrival in Australia seek a temporary entry permit, which would enable appropriate application to be made for her to stay, she then having the apparent advantage of being in Australia.
If the applicant's worst fears are justified, her position must evoke considerable sympathy. The role of this court is not however one of testing the reality of her fears or of providing assistance. It is one of seeing that the relevant law and legal procedures in this country have been observed.
When the applicant saw the officials on 25 October she inquired about obtaining permanent resident status as a refugee or otherwise. On 28 October she was interviewed by an officer of the Department, and a record of interview was made, which she signed. It is there said that she approached the officials on 25 October to inquire about refugee status. There is a statement in the record as follows: "States temporary residence visa/permit for Singapore was due to expire and she was expected to depart from Singapore. She states that she was advised by a travel agent in Singapore that Canada, USA and Australia would not issue visas to Sri Lankans. States that her intention was to come to Australia and she only said that she was going to Fiji to gain entry to Australia."
The applicant applied both for refugee status, and for resident status under s 6A of the Act. The application for refugee status was made on 1 November 1985, was considered by the Determination of Refugee Status (DORS) Committee on 15 November 1985, and its recommendation for rejection was endorsed by the Minister's delegate on 19 November 1985. The place of decision-making in refugee status applications was dealt with in Minister for Immigration and Ethnic Affairs v Mayer (1985) 61 ALR 609, but it is not necessary to pursue that matter in the present case.
The application for resident status was refused on 3 December 1985. The letter conveying the refusal of resident status, signed for the Regional Director, says, in part:-
"There was no evidence before me to suggest that you fulfilled s 6A(1)(a), s 6A(1)(b) or s 6A(1)(C) of the Migration Act as outlined above. Furthermore your entry into Australia as a visitor on a temporary entry permit without permission to work precludes you from consideration under s 6A(1)(d). I therefore considered your case under the law and policy relating to grant of resident status under s 6A(1)(e).
"In your application you put forward as grounds for consideration the claim that as a Tamil, you would suffer gross and discriminatory denial of fundamental freedom and basic human rights, if you returned to Sri Lanka. You also stated that in view of the circumstances of your brother's departure for West Germany and your residence abroad, you might be arrested or killed.
"After carefully considering your claims, I am unable to conclude that your grounds constitute strong humanitarian grounds within the meaning of s 6A(1)(e). On the material presented by you, I am not satisfied that you would suffer gross and discriminatory denial of fundamental freedom and basic human rights on your return to Sri Lanka, greater than the hardship and adversity experienced by the generality of Tamils in Sri Lanka.
"I also gave consideration to whether the application of normal policy was appropriate in your particular case but I decided that there were no features of the case which indicated that the application of normal-policy would be unreasonable or unjust. I therefore decided to reject your application.
"As your temporary entry permit has now expired the enforcement section of this Department will be contacting you."
As affecting both applications, Amnesty International had sent to the Department on 28 October 1985 a number of documents relating to the current treatment of Tamils in Sri Lanka.
An application for a statement under s 13 of the Judicial Review Act relative to deportation was made on 16 December 1985 and was issued on 10 January 1986. The statement was not in evidence before the learned judge and we refused leave for it to be received before us.
As appears from what I have said the deportation order was made after the application for resident status, and after the application for acceptance as a refugee had been considered and refused, and the applicant was at the time of the order still a prohibited non-citizen.
The decision challenged in this application is the order for deportation. The earlier decisions refusing refugee status and permanent resident status are not directly the subject of challenge. (An application was made to amend the original application to include the earlier two decisions. As this would have involved the introduction of a significant amount of new evidence, I do not think the application could have been entertained, although it was not pressed before us and was not formally disposed of.) The decision-maker had of course to satisfy himself that these earlier decisions had been made, but he also had options available to him, as for example the granting of a further entry permit, which lie had to consider as possibilities.
The submissions made to us at times embraced considerations related to the earlier decisions.
It is submitted that there was a failure to accord the appellant natural justice in that the decision as to her refugee status was based on information obtained by the DORS Committee which was not made known to her. The decision of the delegate following the report of the DORS Committee has not however been the subject of challenge, and matters relevant to denial of natural justice before it have not been explored.
The appellant also relies upon the fact that the Department considered her to have entered the country by a "subterfuge" in arriving as a transit passenger. She claims that the Department denied her natural justice in not informing her that this would be regarded as a circumstance disentitling her to favourable consideration. This was an evaluation or a description of some of the facts made known by the appellant herself, and is not a valid ground of challenge.
Reliance was placed on the decision of the High Court in Kioa v Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321 as authority for the proposition that the delegate of the respondent was under an obligation to put to her his views before reaching a final decision.
The effect of Kioa is that while the Department is obliged to accord natural justice when acting under s 18 of the Act, the extent of the requirement is conditioned by the particular facts in each case. There is, for example, no general requirement that an applicant be informed of the sources of all the information which the Department receives concerning his or her case, or the content of that information. As a general rule, when some consideration personal to the applicant is to be taken into account against him or her the rules of natural justice require that the applicant be given a chance to comment or contradict: see Kioa, per Mason J at p 348. The guideline is fairness; in general the party should have an opportunity of dealing in an appropriate way with matters with which he can reasonably be expected to be able to deal, and which might assist his or her case.
In Kioa's case, the material held to require that a chance be given to comment had come from a source other than the applicant. In the present case, as his Honour found, the material which was prejudicial to the appellant had been provided by the appellant herself. In the circumstances, I consider that the decision-maker was not required to give the appellant a chance to comment on the view that he had taken of it; to do so would amount to a general requirement that a decision-maker make known in each case his view or evaluation of the material that an applicant puts forward: see Kioa per Brennan J at p 380. His thought processes, if not unreasonably based on evidence, or other material, are a matter for him. I agree with his Honour that there was no denial of natural justice in this respect.
The allegation of "subterfuge" is also relied on as entitling the appellant to relief under s 5(1)(h), in that the decision-maker relied on his view that there had been "subterfuge", in that the appellant had been posing as a passenger in transit to Fiji only to gain entry to Australia, and that, it is said, was a fact which did not exist: see s 5(3)(b). This submission does not appear to have been made to his Honour. As I have said, subterfuge is an abstract noun used to describe conduct. I must say, although I may not have used the same word myself, that it accords fairly closely with the facts.
It is submitted that his Honour erred in his conclusion that the appellant's application had not been prejudged by officers of the Department. In a letter of 19 November 1985, which conveyed the Department's rejection of the application for refugee status, it was stated that "The Department has also determined that there are no other grounds on which your continued stay in Australia can be approved". His Honour held that this did not amount to a prejudgment because the letter did no more than reflect a view of the facts taken at that stage by an officer of the Department who, on the evidence, played no part either in the decision to refuse resident status, or in the decision to deport. I respectfully agree with his Honour's view.
The delegate who decided on deportation had before him a case summary, part of which set out:
"SUMMARY OF POLICY ON DEPORTATION OF PROHIBITED NON-CITIZENS
"It is in the public interest to ensure that persons abide by normal immigration procedures. The Government's policy in relation to illegal migrants was outlined in a statement tabled in Parliament on 17 October 1985.
"That policy stated that people who are in Australia illegally will not readily be given permanent residence while they remain in Australia. Their breaches of immigration law and requirements will weigh heavily against them.
"Persons who become prohibited non-citizens should therefore expect to bear the full weight of the law and face the prospect of deportation.
"ASSESSMENT
"Ms Manuelpillai is a prohibited non-citizen. She has committed an offence in becoming a prohibited non-citizen. There are on foot no applications for regularization of her status. Although it remains possible for her status to be regularized (by grant of a further TEP) bearing in mind the policy as it stands and taking into account the circumstances of Ms Manuelpillai as related above, you may decide to order her deportation."
The appellants point to this extract to show that the delegate failed to take into account a relevant consideration by failing to consider the consequences to Ms Manuelpillai, individually, if she were deported (s 5(2)(a)), and also that he applied policy without regard to the merits of the case: s 5(2)(f).
As to the matter relating to s 5(2)(a), it seems to me that there is no evidence which shows that his Honour was in error in rejecting this contention. Indeed, there is a handwritten minute attached to the case summary outlining the difficulties which would be faced by the appellant in seeking refugee status elsewhere were she to be deported. Another minute, also attached, outlines the personal circumstances of the appellant, her fears of persecution and her perception of the consequences of deportation. It cannot be said that there was no material before the delegate from which he could ascertain the consequences to the appellant. If it is said that the delegate should have made independent inquiries I do not think any failure to do this appears from the evidence, but in any event this could not in this case be a ground for upsetting his decision.
The challenge referred to, relating to the application of policy, appears not to have been argued before his Honour. In any event, it cannot succeed. True it is that the delegate made his decision on the basis that the appellant was a prohibited non-citizen, whose applications for refugee status, and for permanent residence had been refused, but by the time the decision to deport was made, these were the facts. The case is not one where the delegate felt bound to deport once the status of the applicant as a prohibited non-citizen was established: see Tagle v Minister for Immigration & Ethnic Affairs (1983) 46 ALR 379; 48 ALR 566. The case summary expressly acknowledged that a further temporary entry permit could be granted to the appellant. In the circumstances the delegate was entitled to consider that fact, and give it what weight lie chose. There was no evidence that he did not consider the "regularization" of the appellant's status - the indication is that he did consider it, but found no reason to depart from the policy relating to prohibited non-citizens.
No specific argument was addressed to the submission that s 5(2)(g) and (h) applied, and it is not necessary to consider them.
I am of the opinion that the appeals should be dismissed with costs.
Neaves J. Although there are five appeals before the court, it is convenient to deal first with the appeal by Rosemalar Manuelpillai.
Rosemalar Manuelpillai (the appellant) has appealed from a judgment of the court constituted by a single judge (Morling J) dismissing her application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Judicial Review Act) in respect of a deportation order made against her on 13 December 1985.
The appellant was born in Sri Lanka in 1957. She is of Tamil extraction, a minority community in Sri Lanka. She travelled to Singapore in 1981 where she secured work as a sewing machine operator in a clothing factory. She was directed to leave Singapore before the expiry of her work permit and complied with that requirement by departing from Singapore upon an aircraft bound for Australia. She had an airline ticket showing her destination as Fiji.
The appellant arrived in Australia (Sydney airport) on Wednesday, 23 October 1985 and, on the basis that she was in transit to Fiji, was granted a temporary entry permit valid until 10.30 am on Saturday, 26 October 1985 and endorsed "Employment Prohibited".
On the morning of Thursday, 24 October 1985, the appellant sought and obtained an interview with Mr David Begg of Amnesty International, who arranged for her to attend the offices of the Regional Director of the Department of Immigration and Ethnic Affairs on Friday, 25 October 1985 where she was interviewed. She inquired about remaining in Australia, claiming to be afraid to return to Sri Lanka. She was advised to return to the office on the following Monday, 28 October 1985. When she returned on that date she was again interviewed. Shortly after the interview she was informed that she was under arrest because she was in Australia illegally. Thereafter she was detained at the Villawood Detention Centre.
At the interview on 28 October 1985 the appellant gave the interviewing officer a frank account of the circumstances in which she came to Australia. A record of the interview was prepared and was signed by the appellant. She said that she had not wished to return from Singapore to Sri Lanka because, as a Tamil, she would face persecution there. She said that she had decided to attempt entry to Australia when she was informed by the Singapore Government that her work permit would not be extended. The record of interview records the following: "States temporary residence visa/permit for Singapore was due to expire and she was expected to depart from Singapore. She states that she was advised by a travel agent in Singapore that Canada, USA and Australia would not issue visas to Sri Lankans. States that her intention was to come to Australia and she only said that she was going to Fiji to gain entry to Australia."
She also said that her passport and air ticket to Fiji had been stolen on the night of 23 October 1985 from the hotel where she was staying. She had made no application for migrant entry to Australia while she was in Singapore.
On 29 October 1985 the appellant was again interviewed, with the assistance of an interpreter, at the offices of the Department. Notes of that interview were also made.
On 1 November 1985 the appellant applied for refugee status in Australia. The application was supported by information as to her personal circumstances and by information supplied by Amnesty International as to the situation of the Tamil community in Sri Lanka. The application was considered by the Determination of Refugee Status (DORS) Committee on 15 November 1985 when it was recommended that the application be rejected. The recommendation was endorsed by a delegate of the Minister for Immigration and Ethnic Affairs on 19 November 1985 and on that date a letter was addressed to the appellant informing her of the outcome. The letter contained the following paragraphs: -
"The DORS Committee unanimously recommended against the grant of refugee status. This judgment was arrived at following consideration of detailed advice received from the several sources of information available to the Committee concerning both the general situation prevailing in Sri Lanka at that time and your known particular circumstances in Sri Lanka as they related to your claim for Refugee Status.
"The Minister's delegate has endorsed the Committee's recommendation and has decided that your application for refugee status in Australia must be refused. The Department has also determined that there are no other grounds on which your continued stay in Australia can be approved."
By an application dated 25 November 1985 the appellant applied for resident status in Australia on the ground that there were strong compassionate or humanitarian grounds for the grant of an entry permit: see s 6A(1)(e) of the Migration Act 1958 (Cth). No formal application for the grant of a further temporary entry permit was made. The application for resident status was rejected on 3 December 1985 and a letter in the following terms was sent to the appellant on that date: -
"I refer to your application for grant of resident status. I must inform you, that after giving your case careful consideration, I, the Acting Director, Immigration Branch, an authorized officer under s 6A of the Migration Act 1958, have decided to reject your application.
"Under present law and policy a change of status to resident may be granted in exceptional cases but generally only to people who can demonstrate a marked change in their circumstances since their arrival in Australia.
"Section 6A(1) of the Migration Act prescribes restricted categories of people who may be considered for the grant of resident status. This means it is not possible in law to grant resident status to a person after their arrival in Australia unless one or more of the following conditions is fulfilled in respect of that person, namely:
(a) he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia;
(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;
(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol Relating to the Status of Refugees that was done at New York on 31 January 1967;
(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen; or
(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.
"There was no evidence before me to suggest that you fulfilled s 6A(1)(a), s 6A(1)(b) or s 6A(1)(c) of the Migration Act as outlined above. Furthermore your entry into Australia as a visitor on a temporary entry permit without permission to work precludes you from consideration under s 6A(1)(d). I therefore considered your case under the law and policy relating to grant of resident status under s 6A(1)(e).
"In your application you put forward as grounds for consideration the claim that as a Tamil, you would suffer gross and discriminatory denial of fundamental freedom and basic human rights, if you returned to Sri Lanka. You also stated that in view of the circumstances of your brother's departure for West Germany and your residence abroad, you might be arrested or killed.
"After carefully considering your claims, I am unable to conclude that your grounds constitute strong humanitarian grounds within the meaning of s 6A(1)(e). On the material presented by you, I am not satisfied that you would suffer gross and discriminatory denial of fundamental freedom and basic human rights on your return to Sri Lanka, greater than the hardship and adversity experienced by the generality of Tamils in Sri Lanka.
"I also gave consideration to whether the application of normal policy was appropriate in your particular case but I decided that there were no features of the case which indicated that the application of normal policy would be unreasonable or unjust. I therefore decided to reject your application.
"As your temporary entry permit has now expired the enforcement section of this Department will be contacting you."
A document entitled "Deportation Case Summary" dated 13 December 1985 was prepared within the Department of Immigration and Ethnic Affairs recommending that a deportation order be made in respect of the applicant. To that document were annexed documentary material relating to the appellant and her circumstances, and copies of relevant correspondence. After setting out the appellant's personal circumstances, referring to the circumstance that the appellant could apply for a further temporary entry permit (TEP) but stating that "such application is unlikely to be approved" as the conditions set out in s 6A of the Act were not fulfilled, and referring to representations made on the appellant's behalf, the document contains the following paragraphs under the sub-heading "Summary of Policy on Deportation of Prohibited Non-Citizens":
"It is in the public interest to ensure that persons abide by normal immigration procedures. The Government's policy in relation to illegal migrants was outlined in a statement tabled in Parliament on 17 October 1985.
"That policy stated that people who are in Australia illegally will not readily be given permanent residence while they remain in Australia. Their breaches of immigration law and requirements will weigh heavily against them.
"Persons who become prohibited non-citizens should therefore expect to bear the full weight of the law and face the prospect of deportation."
Then follows the following assessment: "Ms Manuelpillai is a prohibited non-citizen. She has committed an offence in becoming a prohibited non-citizen. There are on foot no applications for regularization of her status. Although it remains possible for her status to be regularized (by grant of a further TEP) bearing in mind the policy as it stands and taking into account the circumstances of Ms Mauelpillai as related above, you may decide to order her deportation."
A document accompanying the deportation case summary, prepared by an officer of the Department, drew to the attention of the delegate of the Minister the need to consider the grant to the appellant of a further temporary entry permit. The document contained the following: "The circumstances of the applicant's entry to Australia are relevant. All of the applicants through a deliberate subterfuge sought to gain entry to Australia by circumventing normal immigration control. You are entitled to decide from this that they thereby disentitled themselves to any concessions concerning temporary stay if their claims to refugee status were found to be ill founded."
On the same day, 13 December 1985, the recommendation was approved by a delegate of the Minister and tile, deportation order was signed.
The delegate of the Minister addressed a letter dated 13 December 1985 to the appellant's solicitor reading as follows: -
"I am writing in reply to your representations concerning your client Ms Manuelpillai who is seeking to remain in Australia.
"The legal and policy requirements for the grant of resident status in Australia after entry into Australia, are detailed in the attached paper.
"Ms Manuelpillai's application for refugee status in Australia was considered by the Determination of Refugee Status (DORS) Committee on 15 November 1985. The committee recommended that her application be rejected and the Minister's delegate endorsed this recommendation on 19 November 1985.
"Ms Manuelpillai's application for resident status under s 6A(1)(e) of the Migration Act 1958, was rejected on 3 December 1985.
"I have no evidence before me to suggest that Ms Manuelpillai fulfils s 6A(1)(a), (b) or (d) of the Migration Act 1958.
"I have given consideration to your request that Ms Manuelpillai be granted further temporary stay in Australia. There is, at present no special policy relating to the continued temporary stay of Sri Lankan citizens in Australia. Accordingly, in the light of normal policy I am unable to approve the issue of a further temporary entry permit to Ms Manuelpillai.
"I gave careful consideration to Ms Manuelpillai's case. Having regard to the particular aspects of that case as against the background of Australia's immigration law and policy, I thought it appropriate that your client not be allowed to remain in Australia and that her departure be secured by deportation.
"Consequently I have this day, signed a deportation order against Ms Manuelpillai."
The learned primary judge rejected a submission put on behalf of the appellant that a breach of the rules of natural justice occurred in connection with the making of the decision to deport the appellant. After referring to the decision of the High Court in Kioa v Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321, setting out a passage from the judgment of Mason J, his Honour said: "If the assumption be made in favour of the applicant that the Minister was required to observe the rules of natural justice when deciding whether or not to deport her there is nothing in the evidence to support a claim that the delegate failed to observe those rules. This is not a case (as was Kioa's case) in which an allegation of impropriety was taken into account by the Minister without the applicant being afforded the opportunity of answering it. I have carefully perused all the material which was before the delegate of the Minister at the time the deportation order was signed. There is nothing in that material which, consistently with the above dictum of Mason J, should have been referred to the applicant prior to the making of the decision to deport her."
After setting out a further passage from the judgment of Mason J, his Honour concluded that the appellant was given an adequate opportunity of placing before the delegate any material that she thought might support her application. His Honour added: "This opportunity was accepted, and due consideration was given to the representations made on her behalf, and on her own statements in support of her application."
In submitting that his Honour had fallen into error in concluding that there had been no failure on the part of the delegate of the Minister to observe the principles of natural justice, counsel for the appellant relied upon the letter dated 19 November 1985, the text of which so far as relevant is set out above, informing the appellant that her application for the grant of refugee status had been refused. The particular part of that letter relied upon was the statement that the DORS Committee had formulated its recommendation following consideration "of detailed advice received from the several sources of information available to the Committee concerning both the general situation prevailing in Sri Lanka at that time and your known particular circumstances in Sri Lanka as they related to your claim for Refugee Status".
It was submitted that that statement was to be read as meaning that the DORS Committee had obtained and taken into account information from several sources concerning the appellant's particular circumstances. This indicated, so it was said, that matters directly relevant to the appellant had been considered of which she had not been made aware and that she had thus been deprived of an opportunity to make submissions in relation to them.
There are, I think, at least two answers to this submission. In the first place it has not been shown that the DORS Committee had before it any information personal to the appellant which had been derived from a source other than the appellant. The information (if any) remains unidentified and the statement in the letter dated 19 November 1985 falls far short of establishing a foundation for the submission. In the second place, there is nothing to suggest that there was any material before the delegate of the Minister when considering whether a deportation order should be made in respect of the appellant indicating that the DORS Committee had information personal to the appellant of which she should be given notice so that she might answer it. There is certainly no basis for concluding that the delegate relied upon any such information.
In my opinion it has not been demonstrated that the primary judge erred in reaching his conclusion on this aspect of the matter.
Counsel for the appellant then referred to the statement contained in one of the documents accompanying the deportation case summary that the appellant had "through a deliberate subterfuge" sought to gain entry to Australia by circumventing normal immigration control and that she had thereby disentitled herself to any concessions concerning temporary stay in Australia if her claim to refugee status was found to be ill-founded. It was submitted that there had been a denial of natural justice in that the delegate of the Minister had failed to inform the appellant that she was regarded as having sought to gain entry into Australia by a subterfuge so that she might have an opportunity to rebut that interpretation of the material before the delegate.
In my opinion, this submission must be rejected. In so far as the delegate adopted the statement referred to, a matter as to which the evidence is not entirely clear, there is no suggestion that in doing so he relied upon any material other than the account which the appellant gave as to the circumstances surrounding her entry into Australia. It was a matter for the delegate to evaluate the material placed before him and, as the whole of that material had its source in what the appellant had said, there was no obligation upon him to inform the appellant that that material might result in him forming a conclusion adverse to her.
Counsel for the appellant also referred to the statement in the judgment of the primary judge that the appellant had informed an officer of the Department of Immigration and Ethnic Affairs that a travel agent in Singapore had advised her that it would be difficult to obtain a visa for entry into Australia and that she could gain entry "by posing as a passenger in transit to Fiji". It was submitted that the material before his Honour, in particular the record of the interview held on 28 October 1985, did not support the conclusion that the appellant had posed as a passenger in transit to Fiji. His Honour did not, in the passage referred to, make such a finding but was stating the effect of what the appellant had stated to the interviewing officer. The words used do not precisely accord with what is recorded in the signed record of interview but, in my opinion, they are to the same effect. In any event the discrepancy provides no basis for reversing the judgment under appeal.
Counsel for the appellant also argued that the primary judge was in error in rejecting an argument that the letter dated 19 November 1985 demonstrated that the Department of Immigration and Ethnic Affairs had pre-judged the subsequent application for resident status. There is, in my opinion, no substance in this argument which, in the result; was not strongly pressed.
The primary judge also rejected a submission that the delegate of the Minister had failed to take into account as a relevant consideration the existing conditions being faced by the Tamil community in Sri Lanka and the specially difficult circumstances which the appellant would find herself in were she to be returned to that country. His Honour concluded that the evidence did not establish that the delegate failed to take into account the matters which the appellant claimed were relevant to be considered. In his Honour's view, all the material which was submitted on behalf of the appellant appeared to have been considered.
Counsel for the appellant challenged this finding but, in my view, the challenge cannot be maintained. I find no support in the material for the submission put on behalf of the appellant that the delegate had taken the view that he was bound to order the appellant's deportation merely because she was a prohibited immigrant: cf Tagle v Minister for Immigration and Ethnic Affairs (1983) 46 ALR 379; 48 ALR 566.
For these reasons I am of opinion that the appeal should be dismissed with costs.
As there are no features of the appeals in the other four cases distinguishing them in any material respect from the appeal by Rosemalar Manuelpillai, those appeals must also be dismissed with costs.
Burchett J. It is not necessary to restate all the facts, which have been summarized, in respect of the appellant Miss Manuelpillai, by the other members of the court. I, with them, am content to accept the invitation of the parties to decide all the appeals in accordance with the decision in Miss Manuelpillai's appeal, on the basis that the cases are so related that they should not be distinguished.
Miss Manuelpillai entered Australia legally, being granted on 23 October 1985 a temporary entry permit valid until 26 October 1985. The trial judge accepted that on the morning of the 24th she saw a Mr Begg of Amnesty International who arranged her attendance, in order to make a claim of refugee status, at the office of the Regional Director of the Department of Immigration and Ethnic Affairs on the 25th. She did then attend, at a time when her entry permit still had another day to run. The departmental summary records: "To allow time for an assessment to be made of their claims (scil Miss Manuelpillai's and the other appellants' claims), the group was instructed to report again to the Department on Monday 28 October 1985" (ie, a date after her entry permit would expire). She did as instructed, but on her return to the Department on the Monday she was arrested, and thereafter remained in custody, although her claim for refugee status was not determined against her until 19 November.
The Regional Director who, as delegate of the Minister, signed the deportation order, did so after receiving, and signing as approved by him, a Deportation Case Summary prepared in the department. As no reasons under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Judicial Review Act) for the decision to sign the order had been received by the date of the hearing, this document was the fundamental document in the application: see the remarks of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 371. It sets out particulars of the appellant, of the circumstances of her arrival in Australia, of her application for refugee status and its rejection, and of her interviews with officers of the Department. It points out she could still apply for a further temporary entry permit (as, indeed, notwithstanding the terms of the "Assessment" quoted below, a letter sent by the Regional Director upon the making of the deportation order indicates she had applied), but asserts approval would be "Unlikely". It mentions there had been representations from an Australian Legal Aid officer, and then concludes as follows:
"SUMMARY OF POLICY ON DEPORTATION OF PROHIBITED NON-CITIZENS
"It is in the public interest to ensure that persons abide by normal immigration procedures. The Government's policy in relation to illegal migrants was outlined in a statement tabled in Parliament on 17 October 1985.
"That policy stated that people who are in Australia illegally will not readily be given permanent residence while they remain in Australia. Their breaches of immigration law and requirements will weigh heavily against them.
"Persons who become prohibited non-citizens should therefore expect to bear the full weight of the law and face the prospect of deportation.
"ASSESSMENT
"Ms Manuelpillai is a prohibited non-citizen. She has committed an offence in becoming a prohibited non-citizen. There are on foot no applications for regularization of her status. Although it remains possible for her status to be regularized (by grant of a further TEP) bearing in mind the policy as it stands and taking into account the circumstances of Ms Manuelpillai as related above, you may decide to order her deportation.
"RECOMMENDATION
"If you accept the above assessment, it is recommended that you sign the attached order for the deportation of Rosemalar Manuelpillai."
It will be observed that the concluding words make it clear the deportation order is specifically related to what appears under the heading "Assessment", and that the terms of the assessment refer to the policy concerning people in Australia illegally, whose breaches of the law are said to "weigh heavily against them". The assessment itself emphasizes the point by asserting of the appellant: "She has committed an offence in becoming a prohibited non-citizen."
To my mind such an assessment, in the circumstances of this appeal, brands the decision as "an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case": Judicial Review Act s 5(2)(f). It was also argued that there was a failure to take a relevant consideration into account (s 5(2)(b)) in an assessment which put such weight on the commission by the appellant of an offence by staying in Australia beyond the expiry of the permit, yet added no qualification that the offence should be seen as mitigated by the direction to stay and the immediate arrest upon compliance with the direction. I think these ways of putting the matter are only the two sides of the one coin.
The clear fact is that the appellant had committed no offence until she did so by obeying a departmental instruction. It is unthinkable that any person in her position would not have obeyed that instruction. To hold the consequences of her obedience against her, and in such strong and unqualified terms as those of the assessment, seems to me to be to make of the policy an unreasoning taboo. That is an error of law: see R v Port of London Authority; Ex parte Kynoch Ltd [1919] KB 176; British Oxygen Co Ltd v Board of Trade [1971] AC 610; Legal Services Commission of New South Wales v Stephens [1981] 2 NSWLR 697; Howells v Nagrad Nominees Pty Ltd (1982) 43 ALR 283; 66 FLR 169, especially at 194-5; Minister for Immigration and Ethnic Affairs v Tagle (1983) 48 ALR 566; and see ss 5(2)(f) and 6(2)(f) of the Judicial Review Act.
I do not think it is any answer to refer to the fact that the appellant came to Australia intending to apply for refugee status. That does not demonstrate an intention to break the law. But if it is thought such an inference could be drawn, the question whether it is to be drawn ought to be determined by the delegate unembarrassed by a wrong view of the effect of the policy. Similarly, though I agree with the reasons given by Fox and Neaves JJ for rejecting the submissions of the appellant the error of law appears in the decision to reject refugee status, and though the decision denying the existence of "strong compassionate or humanitarian grounds" (s 6A(1)(e) - the delegate accepted that if such grounds had been shown a temporary entry permit could, as the appellant's solicitor had requested, have issued to enable them to be reflected in the grant of an entry permit) was not the subject of any separate application, it does not follow that a decision of her appeal in the appellant's favour would be futile. The decision upon the s 6A(1)(e) question could be reconsidered: cf Tagles case, supra, at p 575. That is entirely a matter for the Minister or the delegate, but it cannot be said to be obvious that a reconsideration would be a formality. The ground of refusal was a narrow one: "I am not satisfied that you would suffer gross and discriminatory denial of fundamental freedom and basic human rights on your return to Sri Lanka, greater than the hardship and adversity experienced by the generality of Tamils in Sri Lanka" (the emphasis is mine). Section 6A(1)(e) does not require an applicant to suffer uniquely. There may be "strong compassionate or humanitarian grounds for the grant of an entry permit" to an applicant who happens to be able to apply, because already outside his country, though thousands of his compatriots are desperately situated, but cannot even apply. The plight of German Jews in 1938 provides a ready illustration. (I hasten to add I am discussing what in law the provision could cover, not making a judgment about the Sri Lankan situation, which is not the court's function.) I cannot conclude that the Minister or the delegate, if disabused of a wrong view of the effect in this case of the policy concerning illegal immigrants, would necessarily make the same decision.
Senior counsel for the appellants also argued there had been a denial of natural justice. He relied on the following passage in the Deportation Case Summary: "Ms Manuelpillai decided to attempt entry to Australia when she was advised by the Singapore Government that her work permit would not be extended. She said that a travel agent in Singapore had advised her that it would be difficult to obtain a visa for Australia and that she could gain entry by posing as a passenger in transit to Fiji."
The contention was that this, and other notes in the departmental papers, showed that a crucial issue in the decision was the delegate's interpretation of Miss Manuelpillai's conduct as involving entry to Australia by subterfuge. It was conceded the information, upon which this construction was put, came from Miss Manuelpillai herself. But it was said natural justice required she be told how the Department viewed the matter, and be given an opportunity to explain. Given the circumstance of an alien responding to departmental forms and requirements and to questions put to her, if the issue were in fact a key issue I think the proposition would have some force. It is not clear to me that Miss Manuelpillai had purported to present the full story of the circumstances of her departure from Singapore and arrival in Sydney as a transit passenger to Fiji which, it is stated in the appeal book, is a signatory to a United Nations convention relating to the status of refugees. It may be her intention was to apply, in the first place, in Australia whilst in transit, and, if refused, to continue her journey to Fiji, and apply there. Also her departure from Singapore may have been without any real alternative.
In Kioa v Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321, the High Court made it clear that not every deportation order is made in circumstances calling for the application of the principles of natural justice. However, at p 348 Mason J said: "But it may be otherwise where the reasons for the making of the order travel beyond the fact that the person concerned is a prohibited immigrant and those reasons are personal to him, as, for example, where they relate to his conduct, health, or associations. And if the order is made in consequence of a refusal to grant a further entry permit to him, the reasons on which that refusal is based may require that as a matter of fairness the person affected should have the chance of responding to them."
Although his Honour goes on at the same page to instance the case where "the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application", I do not understand him to limit the principle he expounds to such a case.
At p 349 Mason J states the proposition to which the appellants' argument looks for support: "Recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it." With the authorities he cites for that proposition should be compared the Canadian authorities cited by Gibbs CJ in Public Service Board of NSW v Osmond (1986) 63 ALR 559 at 565 for a general proposition to the effect that notice should be given of the reasons for proposed action, to a person to be affected adversely, so that he will have "a fair opportunity to answer the case against him".
But I do not think, in the present case, that the mere fact that Miss Manuelpillai, on her arrival in Sydney, was viewed as posing as a passenger in transit to Fiji, could have been the critical issue or factor on which the decision was likely to turn. No reasonable person could have regarded a legal entry as tarnished significantly by the mere fact that a person in Miss Manuelpillai's position had resorted to a subterfuge to obtain it hearing. What made the suggestion of subterfuge dangerous for Miss Manuelpillai's hopes was its association with illegality, treated as her weighty responsibility.
Since I do not think the decision-maker was entitled in law to take the view that illegality was a serious factor against Miss Manuelpillai, in the circumstances of this case, I do not think the suggested subterfuge raised an issue calling, as a matter of natural justice for an opportunity to be afforded her to deal with it. In my opinion, she is entitled to succeed in this appeal on the issue of the use made of the allegation of illegality, and the natural justice argument does not strictly arise. But if (contrary to my opinion) the decision-maker was entitled to see Miss Manuelpillai as an illegal entrant by subterfuge, as the Deportation Case Summary suggests he did, this was "the critical issue or factor on which the administrative decision [was] likely to turn", and she should have had her attention drawn to it. This is especially so since the notification of rejection of her application for grant of resident status, dated as recently as 3 December 1985, had suggested no such reason related to her conduct. The same considerations, which have led me to the conclusion that the emphasis on illegality in the Deportation Case Summary is insupportable, also require the conclusion that without notice the appellant would have been most unlikely to have directed her submissions to answering an inappropriate allegation of subterfuge in order to commit an illegality.
For these reasons, I would allow Miss Manuelpillai's appeal, and, in accordance with the agreement of the parties, the other appeals also.
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