Sete, AU Sage ; ems) pn ener =} Bieta tats me aintrnmnlactiowtbh Satbed ab Tea BD etal kt 2 . 7 Beste: i' CATCHHORES Whether the Acting Minister could not deport the first named applicant because of his family relationship wit the second named applicant - whether the Acting Minister was bound by the International Covenant for Civil and Political Rights - whether the covenant 1s part of the law of Australia - the effect of the covenant on a decision made pursuant to the laws of Australia. Micration Act 1958 ss.16 and 18. Human Rights Commission Act 1981 LIGOR SEZDIRMEZOGLU & ANOR v. THE ACTING MINISTER FOR IMMIGRATION & ETHNIC AFFAZTRS — VG No. 153 of 1983 Smithers J. 21 October 1983 Melbourne. oe ee me we IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY VG No. 153 of 1983 GENERAL DIVISION EX TEMPORE JUDGMENT inthe aes alta Between: LIGOR SEZDIRMEZOGLU and PENELOPE DROKOS . (Applicants) And: THE ACTING MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS (Respondent) Coram: Smithers J. 21 October 1983 REASONS FOR JUDGMENT HIS HONOUR: When this matter was heard in September I made an order that the third ground of the order to review be dealt with separately from the other grounds. [I have handed down a judgment in relation to the other grounds and it is the third ground which is row before the Court. The third ground was in these terms: "" . . eal wee! wabTbene wolee he ents ESL Rtas me Nn de ee eed Sm eee eee nee ene ee a eg eR ede Rete te "That aunsofar as the deportation of the farst-named applicant would be likely to Lu elk sttabetts tLe remabeligen calla bk naa bees Haley AmaPGhAh fd ent he artnet att atl ont bbe be fle eee I iw Sede, we toe seriously impair the exercise by the second named applicant, an Australian citizen, of her rights including her rights to maintenance for the child en ventre sa mere of the applicants, 1t is not within the power of the Commonwealth officer so to order, that is to say to make the deportation order." That ground was 'particularised by Mr. Little this morning in the following terms, namely, that in the exercise of the discretion of the Acting Minaster, the Acting Minister could not deport the applicant » because of his family relationship with Mrs. Drokos, that relationship being a genuine de facto relationship, he being the father of her child about to be born and also being accepted as in loco parentis by Mrs. Drokos' daughter, that is, the daughter of Mrs. Drokos by her previous marriage. The relevant facts are, shortly, that the applicant and Mrs. Drokos arrived in Australia from Greece and took up again a de facto relationship which according to them had commenced in Greece at least some 12 months before they arrived in Australia. Mrs. Drokos arrived in Australia shortly before the applicant. Mrs. Drokos is about to be divorced in Greece and intends to marry the applicant. As previously mentioned there is a daughter from Drokos' previous marriage who has lived with Drokos and the applicant ter ren ene ce mr a rte me mr me one ee eee nm a on. ne er wn 1 . w ao tree el pate etn et a calle Real De tea! allen ta tlc ag She Astin el aka oar agra Mee Be Md te ' L rm I CT OED par aren et rem ne tr re mer rere nnn ee eae ee ee —-4 at all tames when they have been living together and who regards the applicant in the position of her parent. Mrs Drokos is with child to the applicant and expects the baby to be born in about two months time. She is an Australian citizen. The applicant is Turkish. There is, therefore, so it is said, a family situation in existence consisting of the applicant, Mrs. Drokos, and her daughter, which has been further enhanced by the existence of the pregnancy in relation to the child of the applicant and Drokos. Im the first instance Mr. Little contended that Australia having acceded to the International Covenant for Civil and Political Rights (the covenant) the provisions of the covenant are binding on the Acting Minister for Immigration and Ethnic Affairs in this case in the sense that he is restrained from making an order for deportation which would invade, or fail to protect, the family situation. The Human Rights Commission Act 1981 indicates that it is desirable thet the laws of the Commonwealth and the conduct of persons administering those laws 7 et ct should conform with the provisions of the covenant and certain other international declarations, but of course such a recital stops short of enacting that the provisions of the covenant are part of the law of Australia, and in fact those provisions are not part of the law of Australia. The Migration Act 1958 is law in Australia on the subject of immigration. In that Act' Parliament lays down, inter alia, the conditions according to which persons may be admitted to Australia and may be deported therefrom. It is to those provisions that regard must be had. So far as the deportation of a prohibited immigrant is concerned, the Minister has a discretion, the width of which has been described in various decisions such as The Minister for Immigration & Ethnic Affairs v. Tagle (unreported decision of Sweeney, Woodward and Fitzgerald Jd., dated 28 September 1983; VG No. 53 of 1983) and Akpan v. The s Minister for Immigration & Ethnic Affairs (unreported decision of Sheppard J. dated 7 April 1983). That discretion itself must be exercised according to law one provision of which is that the Minaster must consider all circumstances relevant to the position of the person with whose desire to remain in Ber erm ern So ee ne nee ee ey ree eee ro Se ee roe ee = met tte be mcrae ak Be treats obs b allnhseteathbede tacTltndynin Lome am tetAd Ned aon tebLasdd whtbreen sate net bbl Kasten ia ke Td ry eu Newt BS hes. ) fee te Mt ee DS tthe ee bees wt oh, Australia he 1s concerned. I do not say that he must apply the principles laid down in the covenant. However, the declaration of Parliament in the Human Rights Commission Act 1981 that it 18 desirable that the conduct of persons administering the laws of Australia should conform with the provisions of the covenant may supply a ground for contending that the Minister should at least take into account the principles expressed therein. So far as I can see in this case, save that the order of the Acting Minister as previously made and at present under reconsideration may cause a separation, it appears that he has in an indirect way taken into consideration the provisions of the covenant. It is apparent that the Acting Minister is apprised of and considers it his duty to have regard to the de facto relationship between these two parties and that he recognises that it is his duty to take that into account with all other matters which bear upon the desirability or otherwise from the point of view of Australia that the applicant be deported or that some privileges arising out of the de facto relationship be extended to him. The duty, however, 1s no more than a duty to take all relevant considerations concerning the prohibited immigrant in relaticn to the interests of Australia into account. Peete Fen o Pigt sree me eens ene re erent Aer es te ee ee ee ee ree ee ee - a a -- -—4 The situation:for Mrs. Drokos, of course, is a very aifficult one indeed from all points of view and it is noted that she is an Australian citizen. But it is going too far to suggest that as a separation between these parties might possibly arise if the ar rr arty ery order as previously made were carried into effect the possibility of that separation makes 1t unlawful for Rr i the Minister to make the order. The existence of the family and respect for what I call the rights thereof ate tee do not take effect to prohibit the exercise of all lawful acts which may work in a hostile manner towards the family. The family is still subject to law and not the reverse. This is made clear in the covenant itself: see article 9(1), article 10(1), article 13 and article 17(1). If one reads, for example, article 13 it states: "An alien lawfully in the territory of a state party to the present covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, he allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated hy the competent authority." cite dae elemed A Linehan fea liaee Rane dinh bk Nees bit Lethe Ane i a er ee er oer emer ner wowace Lire SFY The principle that the law of the land as made by the law-making bodies of Australia shall operate Ft rer rn ne ee nee ee .ae ore ee eee ey eee eS ee -——_. eae ee tee -—-— - -—- - — oo! notwithstanding any general provisions which appear in the covenant seems to be supported by a number of decisions - indeed those decisions which Mr. Little : himself submitted —- and I refer in particular to Rv. Home Secretary ex parte Bhajar Singh [1976] 1 Q.B. te eens tee 198; Rv. Home Secretary ex parte Phan Sopkar [1976] 1 Q.B. 6067 Rv. The Chief Immigration Officer ex CMe te ete parte Salamat Bibi [1976] 1 W.L.R. 979. Reference * may also be made to In re Simsek (1981-1982) 40 ALR 61. To my mind it is perfectly clear that nothing in the Human Rights Commission Act 1981 or the covenant, so far as it is called in aid in that Act, is effective to modify in any way the powers of the Minister under ss.l16 and 18 of the Migration Act. The only way in which the Act is relevant 1s that it makes clear that 'it is the desire of Parliament that the conduct of the Minister in performing his duties shall conform with the provisions of the covenant, and the fact that the covenant refers to the entitlement of the family to be protected, but it is a right for the family to be protected in the context of the law of the country concerned and, of course, subject to those qualifications which are to be found in the covenant itself. aa Deny OCS ED ny SE OTEEL WERE fon SPY DEE OnE, VOW EDU SENT LN BOT We Det OR erin. Deer tent ent Roe en rt a re tee a ee ee -- -- - ne ee Re ee err ee ee 8. I have said that in this case it would appear that the Acting Minister 1s quite well aware of the duty to consider all relevant matters and no doubt, will in his reconsideration, take into account the desirability of the protection of this family unit so far as that protection is compatible with the other considerations which it is necessary that the Acting Minister should take into account which, of course, relate to the interests of Australia, the interest of the maintenance cf its laws and various other considerations which appear from the reasons of the Acting Minister. The substance of the argument put by Mr. Little would really mean that the provisions of s.51(27) of the Constitution dealing with immigration, would have to be read subject to a- qualification that the Parliament was unable to authorise the Minister to take action in certain situations where his action might be incompatible with the full protection of the family. I think it 1s impossible so to argue and that matter is made clear. in those authorities to which Dr. Jessup has referred eg: Osborne v. The Commonwealth & Anor (1910-1911) 12 CLR 321; especially at pp.334, 343, 346 and 358, and the recent case of The Commonwealth v. Tasmania (1983) 46 ALR, in the judgments of Mason J. at 713 and 714; re ny terranes var 9. Murphy J. at 736; Deane J. at 813 and 814. Of course, it ius-quite clear that once ss.16 and 18 are shown to be laws with respect to immigration pursuant to s.51(27) of the Constitution they remain laws relating to immigration although their operation may have an impact on an ancillary matter. On,the general question of the influence of a family Situation and the significance of a family situation on the administration of the laws of immigration it is useful to refer to Ah Yin v. Christie (1912) 4 CLR 1428 where a boy of 15, convicted of a charge of being a prohibited immigrant, sought entry to this country on the basis that he was domiciled in this country his father being already domiciled and resident in this country. It was said by Griffiths C.J. at p.1431: "It is a question of a right of a stranger to claim admission to a foreign country. That is a matter depending upon political, not upon civil status. See per Lord Westbury in Udny v. Udny L-R. 1 H.L. Se., 441, at p.457. It is settled law, as pointed out by this Court in the case of Robtelmes v. Brenan 4 C.u.R., 395, quoting the decision or tne Judicial Committee in Attorney-General for Canaéa v. Cain and Gilhula (i906) A.C., 542, tnat one of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, and to annex what conditions it pleases to the permission to enter it, and to expel or deport him from the State at pleasure. A 10. The Commonwealth has under the Constitution power to exclude any person, whether an allen or not." So far as the application depends upon ground 3 of the order to review, I give no relief. L will reserve the costs. Hi ' { t 2 . gy ' ~ * - - \ i = ye n - * ou sani othe 2 tk De me ee ' i ahaa wks A metre =