~-CATCEWORDS Administrative 'baw - deportation order — application for declaration pursuant to para, 13 (4A) (by Admumrstrative Decrsions (Judicial Review) Act 1977 - whether applicant entitled to request Minister's reasons for decision — whether Minister's decision within para, (f) of Schedule 2 to the Act, Administrative Decisions ~(Judrcial Review)Act 1977 s, 13 Magration Act 1958 ss, 13, 66E BRETT ANTHONY COLLINS "AND 'PATRICIA "IRENE 'DUNN v, MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS NO. G 216 OF 1982 LOCKHART J. 16 DECCMBER 1982 AT SYDNEY IN TIC PCDCRAL COURT OF AUSTRALIA ) ) NCW SOUTH WALCS DISTRICT REGISTRY ) NO. G 216 OF 1982 ) GENCRAL DIVISION ) BETWEEN : BRUT? ANTHONY 'COLLINS First Applicant PATRICIA IRGNE DUNN Second Applicant AND: MINISTER FOR "IMMIGRATION AND DTHNIC' AFFAIRS Respondent ORDERS JUDGE MAKING ORDERS: LOCKHART J. DATE OF ORDERS: 16 DECEMBER 19382 WHERE MADD: AT SYDNEY THD COURT ORDERS THAT: 1, It be declared that the applicants were entitled to request the respondent to furnish them a statemeni 1n writing setting out the findings on material questions of fact referring to the evidence or other material on which those findings were based and giving the reasons for the decision of the Minister made on 16 August 1982 and notified to the applicants by telex addressed to their solicitor, received by him on 21 September 1982 2. The respondent pay to the applicants their costs of this application, tee yeh mee "4 - OE ra Agta tas STATE OS MAT ci ae eI MMP ROE TOR TT MSNA NO tae oe " ON ett nT entre ee TERRY ee - fae LT ~ il! Vibh PLLEI.L COUT OL FUSTIZLIA ) ) PLY SCULL WALLS DISTRICT hLCISi ly LC. C210 CF ist. } CLiLRAL CIVisSiul chinibLl: LiLT aAbILGby CULLsbs Lirst fyppJicant PHIBLCIA sRbRE Loin £econa szppelicant rQD: bLWISTLA ECR litiGh? lich ERD EVTHIUIC «zARRBALKS kesponacnt hkatcLe FOR vULGLLNT 16 DCRLCLILE] 1S&bz LCChHAL? J. fl.is applicuticn betore re is cme cf a Levalaceing exrrey ci appliceticns wade by Lictt 2nthony Collins éenG@ Patrican lrene Lunn ("the epplacants"). they e2£¢€ husbarnqg ane waite. the @pplications are in oné way or another all designee te andree tc Lespenaucnt, the hinistei fol inmdiigiaticn ane Lthnic Aiteirs ("the Minister"), to revohe a deportaticr crder mace against the first applicant on 4 July 1960 ana to allew ham cto iteméin ain this country. L heard the epplication two diy we égo and reacheau & conclusion then cn the arcGgumcnti auvancee as to the outcome ci the application, but I raisec certain questions which sctcmea ic me basic to the applicatior end yet were not arguea by any party, so 1 decidea tc consider the matter ior < short time. pr 7? statement cf the curial hastory of the marvter is hecessery to understand the present applicetion. The first jpplicant 128 @ Kew LLe@lend citizen whe entered Australia on 1: vanuery Loess. Cn 21 LELecember 1971 he was convictea in the buprere Court cf hew South wales of offences oi armcd robbery ana 7osaull committea on & Apri] 1971 and was sentenced tc 17 years imprisonment wath a nmon-parcle period of & 1/2 years. he was rc¢]lczseau cn parcle cn 11 June 1980. Cn 4 vuly 1950 the minister, pursuant to s. 13 cL Ue tacreticn «ct 1958, crdered that the first applicant be deportea irem fustralia. On 247 August 1986 the tirst applicant applied to the Acwinistratave Appeals 'Tribunal for a review of the Pinistcr's decision to dcport hin. On 22 January 1$61 the 'Sripunal affirmed the Minister's decision. Cn 22 January 1561 the 'Zairst epplacent lodgea a notice of appeal against the Nrabunal's aecision. Cn 1 October 1961 this Court set asice the tribunal's cdecisicn and remittea the metter to 1t to be heard and ucclided tgqaln. ihe "ribunel reheerd the matter end, on 2% April 1962, affirmed the bhanister's decision that the farst applicant be acportcd irom /Justralia. Cn 20 bay 1982 the first applicant lacdgea a@ netice of appeal to this Court against that decisicn. Cn 17 Lovember 1962 this Court disrissed the appeal. teanwhile, co. 11 Leptember 1962, the sclicitor for the applicants recelvea a tclcex irom the Lepartment of Immigration and Ethnic Arfairs ("the | Noy ee ee a DT ete eS BE LS oat eink eae Bey tented en FN EUR h TST Pe EI eee tee Te OE = Cepartment") an these terms: "RLFERLKACE SPPLAL TC FELDLRAL COLk1 BY MR BKkETT AMEHONY COLLINS STOP 1 4h DIRLCTED TO IFIRb" (SIC) "YOU THAT THL WINISTER FOR lsh1GhATich AND ETHIC AFPFALRS HAS TAKEN 1NTO CONSILLRATICN VARICUS KEPRESLNIATIONS MALL bY AND ON BEUWALE CF MR. CCLLINS EUT HAS DECIDLD MOWITHSTANDCING ThE MUMBLR AND STRENGTH OF THCSLE REPRLSBMETATICNS TO LET 1LL DEPORTATION CRKLER STALD STOP DLPARIBENT OF IMNICKATICN «hb ELHNIC LFFAIRS CANBERRA" On 26 October 1982 a document wis filed on behalf of the applicents with the Administrative Appeals Tribunal steting that the applicants applied pursuant te sub-s. 4S (1) cf the .Guinistrative Appeals Tribunéel Act 1975 for a review O12 the Binaster's "aecision to deport". Cn 2&6 October 1982 the Tribunal held thet the terms o1 the telex of 21 Septcmber 1952 constituted a decision of the bhinisler net tc revoke the deportation oraer ef July 1980, but that this Gecision was not one that could be reviewed pursuant to S. 66E of the Macration Act 1956. Cn 15 hovember 1962 the applicants appealea to this court from the 'Tribunal's decision. On 17 hRovenber 196z4 the farst applicant filca an application for a stay of executicn ot the deporteiion order of July 19&C, pending the determination of the appeal from the Tribunal's decision. On 17 hovember 1962 this Court dismisscd that application. Cn 23 hevember 1662 the applicants filed an application in this Court for an oracr of at ee —. pan en aren oe eer me HF poe eee = VS oo a ee ee eee PR ee CEE EET ite Ee eee OI eo repgeirs tren ee PIE SE DERN L MSE SETI, re A oe eee os SUAS Re ATE SI DDO Eis Ea ares aD review under the Administrative Lecisions (Juaiciazl Review) act 1977 ("the Ju@icial hkeview Act") of vhat is said to be the tianister's decision of 16 August 1952 and which was notaifiea tc the applicants on 21 Septcmber 1962 by the telex to which 1 have referred. The decision which 1s saia to be reviewable is:- "hotwithstanding the number and strength of véerious representations made by ana on behalf of the applicants the deportation order made in respect cf the first applicant on the 4 July 196C should stand." lhe @pplicants then sought a stay of execution oi the deportation order of July 19&C under s. 15 of the vudicial Revicy Let. This applicaticn was dismisscd by this Court on 26 hovembec last. In the meantime the applicants' solicitor wrote a letter to the Manister on 22 September 1982 saying, omitting formal parts:- "I advise that I act tor Mr. Brett Anthony Collins on his appeal to the Feagerai Court concerning his deportation from this country. Phy client has instructed me to write on his behalf to express his concern that he has not personally receaved from you a response tc the representations mede by him to you on ZUth. hay, 1962 ana by others at later oates. Ll aavise that my clicnt has received iniormaticn that you have madc a decision on his case and he s1ishces you tc confirm this fact as yell as advising the date of the Gecision wnd the reasons tor such Gecasion." tn 15 Cctober 1982 the Minister telexed the applicants ae mere le Re kee eet Gee Sor ate Ag TAT te te Se SO Te re re Py ' - te ra) ! sclicitor im these terms, omitting formel parts:- Ppplicents Lclegram "] LEFER TO YCUR LLTTLR GF 22/9/82 kEGLEEING YCLA CLIENT WR BRLTT ANTHONY COLLINS STGP I COLPIRm TEAT I DECILDEE ON 16/8/52 TO LET THE PhESLNT LILIGATLOM WITH YOUR CLILKT hUN ITS CCLRSL STOP 1 DIRECTED THL LEPARIMENT TO HAVE 1i:15 LLCISICh CCOMVEYED THRKCUGH CCUNSEL 10 YOUK CLIENT STOP IN SPITE CF THR NUMBER ANE SIBRLNGTH GF Tih REPRLSENTATIONS CN LIS BLHALF 1 LLLIEVE YOUR CLIENT SHGULL LEAVE AUSTRALIA JChM HCLGLS BINISTLK FOR IMBICLATION ANL ELhNIC ALEAIKS CALLERRZ." ashe ett tame em Cn 22 Uctober 1662 the Ecpartment sent a telegram to the 2 LEFLR TG YOUR LLTILk OF 22 SLPI 19&2 ACCRKLSSLBE TO THE MINISTLR FCR IsMIGRATICh AWD LILNIC £FFAIRS REGARDING YOUK CLILNT MR BRLTT eeTHChY CGLLINS STOP IT APPEARS FROM XYLSTLKLAYS PKCCLELIbG IN THE FULL ELLEKAL CCURT ThAT YOU REGARD ThaT LETTER AS & REGUEST bOh A STATEMLDT CF LEASCNS PURSUAKT TO SLCT1ON 13 OF ALCMINISTRATIVE DLC1SIONS (JUDICIAL LLVILW) ACL 1977 STOP ACCChUINGLY I GIVL x0OU BOLICL Ch BELHALF OF VhkL MINISTER ANL IN ACCORLANCL WITH SLCVICN 13 (3) OF TEAL ACT ThAT YOU ARE hoOT EWTITLEL TO MAKE THAT RLCULS1 Sic Moog LAVLESS FOR SECKLLTARY DULPT or ahMIGKATION AND ETHNIC AFFAIRS CANBERRA" Cn 22 October 1962 the applicants' solicitor to the hinister a«s follows, cmitting formal parts: "ke: Lrett Anthony Collins Leportation Order. Application for Review. filed today in Iederal Court an respect cf your decision tunder Seetion Five Administrative LTecisions (Judicial heview) Act, 1977. solicitor an these terms, omitting formal parts:- Sent a re me eR, TLL TATE I TA OTD SMa qeerrpagar see nag et myer ot tegen reap ie ep Cena aor Please provide statutory reasons for your cecision, tocether with material relevant to jt under Section 13 of the sazu Act." the bministcr then askea the applicants' solicitor to lucntify tne cecision referred to in the telegram. the upplicants' sclicitor replied by a telegram on 15 Movember 1562 lucntiiying the decision as that of the Lainister notified an his telexues of 21 September and 15 Cctober 1962. On 1 Lecembcr 15942 the Lepaurtment sent a telex to the eapplicants' solicitor in these terms, omitting formal parts.- "IT BEELK 10 YR CEBLL GF 25/11/82 TO TRL H1ikISTLR FCR IMICKATICN AND ETHNIC AFEALKS ILCLLS1LING A STAVEMENT CF LEASONS FCR LECIS LUN CL 10/8/62 IN KESPECT TO ¥R CLIENT MK COLLIS SICP ON 22/10/b2, YOU WLAL GIVEN S'T.GUTORY ihOTICL PURSUAMT TO SLCTION 13(3) OF Thh ALGR ACL ShAT YOU ARL NCT ENTITLED TO BAL HAT 1LCLLSi1" lt 1s in thcse circumstances that the applicants seek an crder that the Minister be ordered to provide his reasons, pursuant to s. 13 cf the Judicial kevie\ stct, tor his decision of lt August 1662 to which I have already referred. Counsel for the applicants conceded that an order in the terms set out in the application coulG not be made and that the applicants \cre lamited to sceking an ocruer pursvent to para. lo (4h) (bk) ot the Judicial Keview Act declaring that the applicants Vure entitled to make the rceguest made under sub-s. 13 (1) ot that fot néemely, a request tic furnish a statement in writing nL etme ee err PO ree ER PR TERE eg TR rn te ae A eg fee TEENS Cae te Me tt FET a OTT Sra I FETE a ote setting out the findings cn material questions of fact referring to the cvidence or other material on which those findings were based and giving the reasons for the dccisions. the Manister was represented beiore me on the hearing of the s. 15 application by a sclicitor who frankly tcla@ me that Tris aunstructions were to put one submission -and one stblmission only to the Court namely, that the relevant Gdecisicn of the Minister fell within the class of decisions reterred to in para. (f£) of Schedule 2 to the Juaicial keview Act and was therefore net «@ dceision to which s. 15 applied. the class of decision mentionea in para. (f) is dgescribcea an these tcrms:- "(£) decisicnms in connection with the institution or conduct cf proceedings in a civil court, including decisions that relate to, or may result ain, the bringing of such prececaings for the recovery of pecunlary penalties arising from contraventions or enactments, und, in particular — (1) decisions in connection with the investigation of persons for such contraventions; (22) dccasicns in connection with the appointment of investigators or inspectors for the purposes of such investigations; (111)G@ecisions in connection with the issue of search warrants, Writs of Assistance cor Customs warrants under enactments; and (iv) decisions uncer eraectments requiring the production cf dcocunents, the giving of anformation ocr the sumteoning of persons as witnesses;". BT ET TREY ES OR METRE RE anette tae Peep ant Me anes DUNT yen Fv om aa Ihe question for determination 18 therefore whether the cceisicn of the Minister con 1b August 1962 and notified to the "LEplicaonts on 2] September 1662 that the deportation order of 4 vuly 1¢&6U should stand, notwithstanding various representations Vhich haa been made to him on behalf cf the applicants, is within rere (1) of Schedule z. Ihe purpose cf paragraph (f) is plaan. kbroceedings in civil courts necessarily involve the making of many and diverse eeclsicns by public servants and cthers wunuer statutes, reguletions, ordinances anG instrumcnts referrable to those piccecdings. Parliament obviously, and rightly, thought it unacesarzblue that persons who make dccisions of this kind should Le ocpligctu to state their reasons for those decisions and the tucts cu which they ére based. fhe tanaster's decision of 16 hugust 1682 uncer challenge in these proceeding was to decline to interfere with the deportation order of 4 July 1980. "What decision coutd not in my view be characterized as one in connection with the institution or conduct of proceedings in HZ civil court or othervise as a Gecisicn or the kand reterrcd to 1n paragraph (t). It as truc that the decisicn was made whilst proceeauings relating to the deportation of the first applicant were fending betore this Ccurt namely, the appeal trom the second decision of the rarinistrative Appeals Traivunal affirming the Linister's decisicn thet tke first applicant be aerorted from Australia. Lut the { PLR om RT . wo 2p FN rere neaus between those preceecings ana the cecision was essentially only temporal. As no other objection to the making of an oracr uLGcr sara. 13 (4A) (b) of the Judicial keview Lect was raised on the tanister's behali and, as I find this objection untenable, 1 sec no re~son not to make the order sought. nevever, before parting with this matter [ shall make the following observations. Luring the course of argument 1 raiscce various auestions including the following:- (2) whether the decision of the Minister cf le August 1962 was "a decision of an administrative Character" within the meaning ci that expression an the Judicial heview Act when essentially it was a aecision cf a negative nature not to revoke tne Geportation order of 4 uuly 1960; (b) vhethcr the application under the Judicial hevicw Ret concerning the decision of 16 August 1962 vas cut of time and, as no application has been made to extend time, whethcr the Court could deal with the metter incluéing this aspect of it, namcly, the application unuer s. 13. The Juaicial Peview act requires that an epplication ior review be ledgea within 26 days after the cecision unlcss the time 1s extendea; { SHPe a RESIS et SND IN Se FRR a -lLo- (c) whether the applicants' request that the hinister furnish the requisite statement under s. 135 was maae ty the letter of 22 September 1682 or the telegram or 23 icvember 19&2; (a) 1f the request was mede by the telegram ci i5 hovember 1962, whether 1t was made within the time Erovidca by s. 15 (see pera. 15 (5) (2) ); ana (c) whether the second applicant is entitled in law to join with the tirst applacant in bringing this application under the Cudacial keview. Act ana to make the recuest ot the banister unaer s. 13 which 1s the subject of the application berore me. ihe solicitor for the Minister told me that he had no instructions to deal with these questions, that it vas @ matter lor the court and that his instructions were confined to suEmittiug that the decisicn was excluded from s. 13 by para. (£) cl Scheaule Zz. in these circumstances it seems inappropriate for thas court te irtseli embark on an investigation of these questions 'hem the 'issastance of the solaciter for the Banister was coniineu te the question of the application cf para. (tf), cspecially es an order uncer s. 135 results only in the obligation ef the binister to furnish the reasons icr and other anformation Bear OL I sory ncaa, ee ar mer mime tomo A cre wore tere oe tent pe ere ni a f4 2 Pe Foe = aan -22 -ll- concérning his decision relevant to this application. Io woula edd@ that 1 regard thesc questions which I raised in argument as Open questions upon which i have reache@ nce conclusion one way cr the other. I propose to meke a few final observeticns. & Great deal of publicity has attended the actions of the applacents in relaticn to the depertation oréer ot July 1980 and subsequent proceedings in the Administrative Appezls MUIribunal and this court. the deportation order made in respect of the rirst applicant still stands notwithstanding the challenges made to it jn the subsequent litigation. The applicants recuestead this Court in hovember 1962 to stay the executicn cf that deportation order. 'the Court refused to grant that stay. in the result, the binister is at liberty to execute the deportation order whenever he wishes. hothing that I have said is, in any way, an expression of opinion as to the prospects of success of the applicants in the applicetion for an order of review. in the light ct the manner in vhach the application under s. 15 was conducted before mc it 1S inappropriate to form any view as to the applicants' ultimate prospect of success om the hearing of this application, and I have iformea none. All L have dene 1s to hold that the applicants were entitlea to request the hinister that he furnish a written statement setting cut certein matters including the reasons for his decision. 1 heve held this on the assumpticns - met gn CAEN yg CE Ao ee on +. A Sr ae ee Be ete RSI ET Cpe A BB ar ERIE St an AA RADE ET oe Pini re ™~ ve a iad Pty ' that the Minister made a decision on 16 August 1982 which 1s sobject to review under the Jidiciai Review Act and that the applicants cauly requested the Minister to furnish them with the requisite statements under s. 13. L made these assumptions because no submissions to the contrary were made on behalf oft the hinister an@ the instructions of the solicitor for the Minister apparently aid not extend to challenging those assumplions. Yhe Court orders that 1t be declared that the applicants were entitlea to request the Minister for lmmigrations and Lthnic Aifairs to furnish them a statement in writing setting out the findings on material questions of fact referring to the evidence or othcr material on which these findings vere based and giving the reasons for the decision of the hLinister mace on 16 August 19&Z and notificd te the applicants by telex adcressed to their solicitor, received by him on Z] September 1982. lt was agrecd by counsel for the applicants end the solicitor for the Minister that the costs of this application should follow the event. As the applicants have succeeded, the Court orders that the Minister pay to the applacants their cosis of this application. ———.. 1 certify that this and the iweNie- (125 preceding pages are a true copy cf the Reasons for Judgment herein of his Honour Mr. Justice Lockhart Old Associate Dated: Ib DES 432