4 # Co Supeney . SABER JUDGMENT NO. snnBal-Gunl amie THE FEDERAL COURT OF AUSTRALIA General Division No VG 56 of 1981 BHAJAN SINGH and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS C.A. SWEENEY J TRANSCRIPT OF PROCEEDINGS AT MELBOURNE ON WEDNESDAY, 25 MARCH 1981, AT 10.00 AM Continued. from 24.3.81 Copyright in the Commonwealth Government ' singh 25.3.81 cp cs las 7 MR P_ ROSE: I appear on behalf of the applicant, your Honour. HIS HONOUR: Yes, Mr Rose. MR_G GRIFFITH: Your Honour, I appear for the minister. HIS HONOUR: Yes, Mr Griffith. MR ROSE: Your Honour, following on from yesterday, amended particulars of the application were prepared and an oral notification was given to my friend's instructing solicitors. HIS HONOUR: When you say amended particulars were prepared, do you mean an amended application? MR ROSE: Yes, sir. I believe a copy is before your Honour now and I would seek leave to amend the application on the basis set out. HIS HONOUR: In the fashion shown in the document that has been filed? MR ROSE: Yes, your Honour. HIS HONOUR: What do you say about that, Mr Griffith? MR GRIFFITH: I agree to that course, your Honour. HIS HONOUR: The application may be so amended. MR ROSE: In addition, your Honour, there was a second affidavit sworn by Colin James Gibson. I believe also that that should be on the file. HIS HONOUR: Sworn today? MR ROSE: Yes, your Honour. HIS HONOUR: Yes, I have read that. Copies of these affidavits have been served on the minister, have they? MR ROSE: Yes, your Honour. That is the basis of the application on which we seek the orders. HIS HONOUR: You might take me to the sections or to the Act? MR ROSE: Section 5, sub-sections 1 and 2 of the Administrative Decisions Judicial Review Act. HIS HONOUR: The jurisdiction of the court comes from section 8, does it not? MR ROSE: Yes, your Honour. HIS HONOUR: You say that your client is a person aggrieved within the meaning of section 5? singh 25.3.81 8 MR ROSE cp cs 2a s MR ROSE: Yes, Your Honour. HIS HONOUR: The question then arises whether this is a decision which this act applies, is that right? MR ROSE: Yes, your Honour. HIS HONOUR: That is defined in section 3, is it? MR ROSE: Yes, -and also in the act there is set out certain matters to which the act specifically does not apply. HIS HONOUR: We had better start with section 3. Would you like to read that to me, the relevant portion of it? MR ROSE: Yes, your Honour. Under sub-section 4, which refers to a person who is aggrieved by a decision, there is a reference to a person aggrieved by a decision and that includes a reference to a person whose interests are adversely affected by a decision. There are sub-sections there and we would say that our client, who is to be deported, Mr Singh, has been adversely affected by decisions of the court and that the act refers to the making of a decision in sub-section 2. HIS HONOUR: Would you like to read that to me? MR ROSE: Yes: In this Act, a reference .........-. an order, award or determination. HIS HONOUR: Where are you reading from? MR ROSE: Sub-section 2(a), your Honour. Also, sub-section 2(b): Giving, suspending, revoking ........ » « approval, consent or permission. That is in relation to those two matters, sir, that the minister has made an order and has refused or failed to take into account, we would submit, all the material as to why this person would fall into amnesty. HIS HONOUR: The root of it is the decision to which this act applies, is it not? MR ROSE: Yes, your Honour. HIS HONOUR: How does that read? MR ROSE: It says that it is a decision of an administrative character and this is in the definition section: singh 25.3.81 9 MR ROSE cp cs 3a s to aaa eaenenemnanenemmmmmetenneen te eeennameens nd .- Re ee eT OE OT ee ee Proposed to be made ......'. . ae set out in section 1. HIS HONOUR: What do you say is the - - - MR ROSE: The Migration Act, your Honour. HIS HONOUR: What is its full title? MR ROSE: I do not have the copy. It is the Migration Act of 1958 to 1973. HIS HONOUR: Where does that provide for the making. of this decision? MR ROSE: It is under section 16, your Honour. HIS HONOUR: Would you like to read that to me? MR ROSE: Under section 16: Where after the commencement of this part . 2 © ee ss - Feferred to in this sub-section. HIS HONOUR: You say there has been a decision to deport your client? MR ROSE: Yes, your Honour. HIS HONOUR: You say that is a decision under the Migration Act? MR ROSE: Yes, under section 18 the minister gets that power. HIS HONOUR: Would you read the section to me which you say is the relevant one? MR ROSE: Section 18: The minister may order the deportation... oe © « « « « under any provision of this Act. Then following on from that, sir, under section 20: Where the minister has made an order... « 2 « « « «- « be deported accordingly. HIS HONOUR: If we turn to section 5 of the act and we look at your amended application we should be able to see the grounds that your client relies upon which are taken, I imagine, from section 5, sub-section 1. MR ROSE: Yes, your Honour. Sub-sections 1 and 2. HIS HONOUR: Where do you find those grounds in your amended application? Singh 25.3.81 10 MR ROSE cp cs 4as MR ROSE: They are grounds 4, 5 and 6. HIS HONOUR: Take ground 4. What is the evidence that shows that a breach of the rules of natural justice occurred? MR ROSE: It is the evidence set out in the affidavit. HIS HONOUR: Where is the statement that you are relying on? MR ROSE: It is in the affidavit of Colin James Gibson. HIS HONOUR: Which one? MR ROSE: The one sworn today, your Honour. In paragraph 4 he refers to obtaining instructions referred to in his other affidavit; that is, instructions from Chapman. In paragraph 5 he refers to a copy of that letter being sent to Mr Windsor of the Department .of Immigration and Ethnic Affairs. Then in paragraph 8 he refers to the determination of the minister having been made without the minister having proper regard to the document in paragraph 4, which I referred to in paragraph 4, and which is exhibit B. HIS HONOUR: That is more of an allegation, is it not, than a statement of fact? It is more like a pleading statement in an affidavit. What rule of natural justice has been breached? That is a way of testing it, I suppose. MR ROSE: We would say that the minister has failed to granta hearing to the applicant. HIS HONOUR: What kind of a hearing? MR ROSE: A hearing as to the applicant's own allegation, which falls within the amnesty provisions. HIS HONOUR: Are the amnesty provisions before me? MR ROSE: No, we do not have the provisions at this point in time to show on what basis the amnesty was made. We have been instructed that an amnesty was granted in relation to the regulation of the status, but we do not have the documentation in relation to that. HIS HONOUR: Is your real contention that your client should have been considered as being within the amnesty terms and, therefore, not deported? MR ROSE: Yes, your Honour. HIS HONOUR: Apart from the amnesty terms, what do you say as to your client's position. MR ROSE: That he is an illegal immigrant and other than the matters we are discussing, he would be eligible for deportation. singh 25.3.81 11 MR ROSE cp cs 5a s . (Continued on page 1la) HIS HONOUR: Putting the amnesty terms completely to one side, there would be no legal impediment to the deportation of your client apart from that? MR ROSE: No, your Honour. HIS HONOUR: If you rely upon them do I not need to have them before me? MR ROSE: Yes, but we have not been in a position, as yet, to obtain them. HIS HONOUR: How can you say what is and what is not without them? MR ROSE: That is why the affidavit is hearsay, in effect, as to what the court can do because I believe that in the affidavit Mr Gibson has sworn he is told when the ammesty operates. He is also given information by his client as to when he was in Australia, which is during the amnesty period, but that is as far as he can go at the present time because we do not have the documentation. We have not even seen, to date, any notice of the deportation. We have only been advised verbally that Mr Singh was to be deported. We would not be in a position to put that material before your Honour in any other way, save and except to make the allegations in the affidavit. singh 25.3.81 lila MR ROSE cp cs 6a s (Continued on page 12) anemone ER ESET CDEC apart a on aetna | | HIS HONOUR: Do you want to say anything more to your application generally, Mr Rose? MR ROSE: The only thing is Mr Singh is here, I believe, today. HIS HONOUR: He is present in court today? MR ROSE: Yes, your Honour, and he may well be in a position to give evidence provided somebody who can interpret has turned up. HIS HONOUR: You have the conduct of the matter. MR ROSE: I understand that. We were hoping for an interpreter to be here and we were hoping to call Mr Singh, but I am not sure if someone is here to interpret. If I may be excused from the bar table to make inquiries? HIS HONOUR: Yes. MR ROSE: We would have some difficulty. Mr Gursewak Singh is here but he is not an interpreter. He would be a witness and can be a witness to the fact Bhajan Singh was in Australia. HIS HONOUR: Tell me the facts you are seeking to establish in this way. MR ROSE: Only that Bhajan Singh is in Australia - - - HIS HONOUR: The applicant was in Australia prior to 31 December, 1979? : MR ROSE: Prior to 31 December 1979 and that he made application to be considered under the amnesty in 1980 when the amnesty was purported to operate. HIS HONOUR: Are those the only facts? MR ROSE: They are the only facts. I am not in a position to call evidence as to the amnesty. HIS HONOUR: As to these facts, are you able to tell me whether there is any contest, Dr Griffith? DR GRIFFITH: It is not conceded that he was in Australia after his deportation. HIS HONOUR: Mr Rose made some reference to that yesterday, but he did not pursue the matter further because I was anxious, as far as possible, to see what the evidence was. DR GRIFFITH: Could I mention the order nisi for habeas corpus is returned in the State Supreme Court at 10.30. I was wondering if my instructing solicitor should be despatched there to see if the matter is set down. Singh 25.3.81 12 MR ROSE nw lms la HIS HONOUR: It occurs to me, haying regard to what Mr Rose has said, that if he seeks to rely upon the terms of the amnesty he might need time in which to place the amnesty before me in some fashion. DR GRIFFITH: Could I say we have a preliminary objection as to the competency of this application and what we say is the application for the review of the decision by reference to the act. In our submission it is not an application which falls within the jurisdiction and, in particular, the definition provided under section 31 of the act of decisions to which the act applies. Your Honour will see the definition is: A decision of an administrative character - 6 6 «© © © © © hehe Under an Gnactment. . We would say there is no relevant enactment. I could indicate my instructions are this amnesty referred to is an amnesty provided in an administrative way as referred to in one or two press releases. HIS HONOUR: I suppose it becomes a nice question if you are told you are being deported whether you are being deported pursuant to the power under the act or whether you are being deported because you do not come within the amnesty. DR GRIFFITH: I would not cavil for a moment the power to deport and the deportation order is pursuant to section 18 of the act. HIS HONOUR: You say the real decision which is complained about is a decision not to give the applicant the benefit of the administrative provisions contained in the amnesty? DR GRIFFITH: We read that as indicating the applicant desires to review the decision of the minister that he is not entitled to consideration under the amnesty and we make this jurisdictional point that is not a decision to which this act applies for the purpose of the 1977 act. HIS HONOUR: I follow the way you put it and what occurs to me is as you have the habeas corpus proceedings returnable in the Supreme Court it would, perhaps, be a more orderly way of proceeding if I were to stand the matter down in this court - and Mr Rose has now had notice of your preliminary point and will have an opportunity of considering it - and, at the same time, if he is seeking to lead evidence before me on that preliminary point I will be able to hear it. You will only be briefly engaged in the Supreme Court, I imagine? singh 25.3.81 13 nw lms 2a DR GRIFFITH: Yes, your Honour. HIS HONOUR: As far as this court is concerned I think if I were to say not before 12 noon it would be perhaps the most helpful course to take. Is that course convenient to you gentlemen? DR GRIFFITH: Yes, your Honour. We would say the only relevant inquiry on this jurisdictional point is a referral to the provided enactment. HIS HONOUR: I am not suggesting what he will do, but bearing in mind the distance between here and the practice court you both should be on your way now. If your point is good it will still be good at 12 noon and Mr Rose will, perhaps, be able to make a more leisurely reply to it. The subject of the application is not going to be deported between now and 12 noon. I will say not before 12 noon, gentlemen. The court will now adjourn until 10.30. singh 25.3.81 14 nw lms 3a HIS HONOUR: Dr Griffith, had you finished developing your preliminary point? DR GRIFFITH: No, I had not. In fact, I have the relevant press release dealing with the amnesty programme, but I understand that my learned friend has an application to make. HIS HONOUR: Yes, Mr Rose? MR ROSE: Your Honour, we have discussed the matter and we have seen the press release and we now seek leave to withdraw our application. ; HIS HONOUR: You seek no other orders? MR ROSE: No other orders. HIS HONOUR: What do you say about that, Dr Griffith? | DR GRIFFITH: I would submit that the appropriate order be that the application be dismissed and I am instructed to ask for an order of costs. HIS HONOUR: You seek a dismissal rather than a withdrawal and an order for costs? DR GRIFFITH: Yes, your Honour. MR ROSE: What do you say about those two matters, Mr Rose? Singh 25.3.81 15 MR ROSE cp mp 6e 5s MR ROSE: I do not think I can oppose either of: those courses, your Honour. ; HIS HONOUR: It is ordered that the applicant pay the respondent's costs of and incidental to the application, such costs to be taxed if not agreed, otherwise the application is dismissed. AT 12.18 PM THE MATTER WAS ADJOURNED INDEFINITELY singh 25.3.81 16 nw mp le s