CATCHWORDS ADMINISTRATIVE LAW - Deportation from Norfoik Island - Order of Norfolk Island Court of Petty Sessions declaring that deportation authorised by Immigration Ordinance 1968 - Whether proscribed by Racial Discrimination Act 1975 - Prohibited immigrant - Construction of Immigration Ordinance 1968 Racial Discrimination Act, 1975 - ss. 9, 10 International Convention on the Elimination of All Forms of Racial Discimination Immigration Ordinance 1968 (Norfolk Is.) - ss. 4, 5, 6, 10, 17 - 24, 28 No. ACT G 82 of 1983 DAVID HUW LEWIS v. RAYMOND EDWARD TREBILCO Bowen C.J., Lockhart and Morling JJ. 11 April 1984 Brisbane Furby bee IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) ) NO. ACT G 82 OF 1983 ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF NORFOLK ISLAND DAVID HUW LEWIS Appellant RAYMOND EDWARD TREBILCO Respondent ORDER JUDGES MAKING ORDER: Bowen C.J., Lockhart and Morling JJ. DATE OF ORDER: 11 April 1984 WHERE, MADE: Brisbane THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. David Huw Lewis pay to Raymond Edward Trebilco his costs of the appeal. Wd beta GR oy hn tos ' a) . te ata 'ode Hoag waht IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY NO. ACT G 82 OF 1983 DISTRICT REGISTRY wwe we evr GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF NORFOLK ISLAND DAVID HUW LEWIS Appeliant RAYMOND EDWARD TREBILCO Respondent CORAM: Bowen C.J., Lockhart and Morling JJ. 11 April 1984 REASONS FOR JUDGMENT THE COURT This 18 an appeal from a judgmert of the Supreme Court of Norfolk Island (Fox C.J.) dismissing an appeal to that Court from an order made by the Court of Petty Sessions at Norfolk Island that the deportation from the Island of David Huw Lewis, the appellant, was authorised by s.24 of the Immigration Ordinance 1968 (Norfolk Island) ("the Ordinance"), Section 24 provides that the Court of Petty Sessions may, upon application made by the Administrator, declare that the deportation from the Island of a prohibited immigrant or a holder of a temporary entry permit who has contravened or failed to comply with a condition subject to which the permit was granted is authorized by the Ordinance. de 2 the ¢ 2. The appeal concerns the question whether the order of the Court of Petty Sessions was valid having regard to the provisions of s. 9 of the Racial Discrimination Act 1975 ("the Act"). The appellant was born in Kenya on 2 September 1945. He became an Australian citizen on 2 December 1981 pursuant toa certificate of Australian citizenship granted to him on 29 October 1981 under the Australian Citizenship Act 1948. He had formerly been a British subject. He 15 a school teacher and was employed by the Administration of Norfolk Island in that capacity from January 1980 until the end of 1982. He entered the Island and remained there pursuant to a series of temporary entry permits granted under s.6 of the Ordinance. The last of those permits was granted on 16 June 1982 operative from 19 May 1982 and expiring on 18 November 1982. Since then the appellant has had no authority granted to him under the Ordinance to remain on the Island. He 1s, pursuant to the provisions of sub-s.10(2) of the Ordinance, a prohibited immigrant. The Administrator applied to the Court of Petty Sessions at Norfolk Island for an order under 5.24 of the Ordinance declaring that the deportation from Norfolk Island of the appellant is authorised by the Ordinance, The order was made and is the subject of the present appeal. Subsequently the Administrator made an order for the deportation of the appellant and he was deported from Norfolk Island. This appeal is concerned with the correctness of the decision of the Supreme Court upholding the order of the Court of Petty Sessions. so Era: ' 0 . PEO | Oe a " wale . ' : wo er eee aad It 1s not concerned with the subsequent deportation order. The appellant, who appeared in person before this Court, argued that he had a right as an Australian citizen to freedom of movement and residence within Australia which includes a right to move freely between mainland Australia and Norfolk Island as one of Australia's external territories unimpaired by restrictions based on race, colour, descent or national or ethnic origin. The source of this right was said to be s.9 of the Act and sub-para.(d)(i) of Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination ("the Convention"). The Convention was ratified by Australia and approval to that ratification was given by the Act: s.7. Section 9 of the Act relevantly provides as follows:- "9(1) Its (sic) 1s unlawful for a person to do any act involving a4 distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, onan equal footing, of any human right or fundamental freedom in the political. economic, social, cultural or any other field of public life. (2) The reference in sub-section (1) to a human right or fundamental freedom in the political, economic, social, cultural or anv other field of public life includes a reference to any right of a kind referred to in Article 5 of the Convention ..." Sub-para. (d)(1) of Article 5 of the Convention provides:- "Article 5 sel st od moe Met ok 4. In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... (d) Other civil rights, in particular:- (1) The right to freedom of movement and residence within the border of the State; ..." It is convenient to set out the relevant provisions of s-10 of the Act although the argument as presented to the Court was based upon s.9:- "10(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that ais enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything 1n that law, persons of the first-mentioned race, colour or nationai or ethnic origin shall, by force of this section, enjey that right to the same extent as persons of that other race, colour or national or ethnic origin. (2) A reference in sub-section (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention. ..." The right asserted by the appellant was said to be infringed by the decision of the Court of Petty Sessions under challenge in this appeal. It was not conceded by the Administrator that the order of the Court of Petty Sessions fell within the opening words of sub-s.9(1) of the Act namely: + am be - a 1 ee ee ere + ae "9(1) Ite (sic) 1s unlaviul For a person to do any act involving a distinction ...' It was the Administrator's contention that the only relevant act was his proposed act of deporting the anrellant. However, we do not think anything turns on the corecise nature of the act identified for the purposes of 5.9. We are prepared to assume that the decision of the Court of Perty Sessions sufficiently answers the description of an "act" in sub-s. 3(1). The aguestion of substance on whith this arpeal Eusyy 15 whether tle aecision of the Court of Petty Sessions vnvolvea 'i abstinetion, exclusion, restriction or preferenc: vased on race, colour, descent or national or *thnic oriaqin" which had tr ourrose or effect proscribed bv the section. It 1s necessary to refer to 'the structure and relevant provisions of the Orainance because the case turns upon the proper construction of those provisions. The Ordinance was made by the Governor-General on the advice of the Federal Executive Council under the Norfolk Tsland Act 1357 which was repealed by the Norfolk Island Act 197% (No. 25 of 1979); but notwithstanding that repeal the Ordinance continied in force oursuarct to s.16 of the latter Act. The Ordinance. apart from s:-liminarv, transitional and miscéllaneous provisions, deals with Tmmiaration ¢Part TT - ss. to 15); Residents (Part TI? - ss.16 to 21); and Deportation (Part 6. IV - ss.22 to 61). Under Part II, dealing with immigration, a person who intends to enter or has entered Norfolk Island may apply to the Administrator for an entry permit under the Ordinance: sub-s.5(1). The Minister may in his discretion, but subject to the Ordinance, grant an entry permit to the applicant; sub-s.6(1). The entry permit may be either a temporary entry permit or a permit to enter the Island or remain there indefinitely or both. A temporary entry permit must be fora specified period not exceeding six months and may be granted subject to conditions; sub-s.6(3). The Administrator may in his absolute discretion cancel a temporary entry permit at any time in writing; sub-s.10(1). Upon the cancellation or expiration of a temporary entry permit the person who was the holder of the permit becomes a prohibited immigrant unless a further entry permit applicable to him comes into force upon that cancellation or expiration; sub-s.10(2). An authorised officer (that 15 an officer authorised by the Administrator to exercise the relevant power; sub-s.4(1)) may require a person who 15 a prohibited immigrant to leave Norfolk Island within a time specified by that officer and that person 18S required to comply with the requirement; sub-s.10(3). Temporary entry permits may be renewed at any time and from time to time: s.ll. The grant of an entry permit is in the discretion of the Administrator but the power to grant such a permit may be exercised by an authorised officer; sub-ss. 6(1) and (5). A person may apply for and be granted a permit, by the 2 oubthe 1 ern 1h ebb ee oe ae Administrator, £O enter and remain in Nortolk Island indefinitely: para.51(2)(b) and sub-s. Bt), Certain persons upon application for entry permits are ta be arantea permits to enter and remain in Norfolk [Island indefinitely. They ace neopls who were ordinarily resident in Norzolk T3tlanga durina the period of five years immediately o2fore the cecmmencemert sf the Immigration (Temporary Pravisions) Grdinanze 13.67 ana bcersons who, although not ordinarily resident for that period, had by thelr statements and actions manitested an intentisn to be permanent residents of the Isiand; see 5.8. Certain classes of people are not required to hold entrvz permits namely, residents, members of the Armed Forces, diplomatic or consular representativer>, members of the complement or crews of vessels entering Norfolk Isiand: 2.1% Visitors to Norfolk Island for a continuous perisd of less than 29 days do not require entry permits: $.13. Part TEf of tre orebinancc cae ow Thome rr aens A vesident 15 definec by cur-3 2 1 , Foe irtereretatian provision, aS meaning a person: "(a) who has been dectared to be a resident under s.17 or 18 of this Ordinances: or (b) who would ke entitled uson application to be declared a resident uncer sub-s.17(1) of this Ordinance, and who has not been declared, by a declaration that is 8. valid and effectual to be no longer a resident;" A person, other than the holder of a temporary entry permit, may apply to the Administrator to be declared a "resident": sub-s.16(1). Section 17 is important and should be set out in full:- "17(1) Where application is made to the Administrator under the last preceding section - (a) by a person who was born on Norfolk Island and has not, by some voluntary and formal act, other than marriage, acquired the citizenship of a country other than Australia; or (b) by a person who 18 ordinarily resident in Norfolk Island at the time when he makes the application and aintends, if declared to be a resident, to continue to reside ordinarily in Norfolk Island, being a person - (1) who is the child of a resident, has not attained the age of twenty-one years and is unmarried; (ii) who is the spouse, widow or widower of a resident; (iii) who 18 a parent of a resident and is dependent on the resident; or (av) who is the widow or widower of a person who was born in Norfolk Island; the Administrator shall declare the person to be a resident. (2) Subject to the last preceding sub-section where application is made to the Administrator under the last preceding section, the Administrator may, in his discretion, declare the applicant to be a resident - (a) aif the applicant has been ordinarily resident in Norfolk Island for not less than five years during the seven years immediately preceding the date of the application; Wat TR ek an adhe WO (b) 1f the applicant 1s ordinarily resident in Norfolk Island at the time when he makes the application; (c) af the applicant 1s of good character; (d) 1f the applicant has an adequate knowledge of the English language; {e) af the applicant intends, 1f declared to bea resident, to continue to reside ordinarily in Norfolk Island; and (f) af the applicant has been assimilated into the Norfolk Island community." A person aggrieved by the refusal of the Administrator to declare him to be a resident may request the Minister to review the refusal and the Minister may declare the person to be a resident or confirm the decision of the Administrator not to Geclere the person to be a resident: s.18. The Administrator, or ap authorised officer, shall on request by a resident issue to the resicent a certificate of residential status: 5.19. The Administrator may in certain circumstances declare a person to be no longer a resident subject to the qualifications that such a declaration has no force or effect unless the person has by some voluntary and formal act, other than Marrlage, acquired citizenship of a country other than Australia; or unless, if the person was not born in Norfolk Island and has been continuously absent from Norfolk Island for a period of not less than five years, he fails to satisfy the Administrator that he intends to resume ordinary residence in Norfolk Island: sub-s.20(2). Where the Administrator declares a person, who is a ny PCT on or - . . 24 , ad dt hier 10. resident, to be no longer a resident the person may apply to the Supreme Court for an order cancelling the declaration; and the Supreme Court, if satisfied that the declaration has no force or effect, shall order that the declaration be cancelled: s.21. Part IV of the Ordinance deals with deportation. Where a person enters Norfolk Island as an immigrant by evasion of an officer for the purpose of entering the Island; or for the purpose of securing entry into the Island produces to an officer an unauthorised or forged document; or at the time of entry suffers froma prescribed disease or has been convicted of certain offences or has been deported from Norfolk Island or any other country - that person shall be deemed to be a prohibited immigrant unless he 1s the holder of an entry permit endorsed with the statement that the officer Granting the permit recognises him to be a person referred to in sub-s.22(1). Section 23 deals with forged documents or documents obtained by false representations or documents that contain a statement which 1s untrue or misleading 1n a material particular; and it provides that the person concerned is deemed to be a prohibited immigrant. Section 24 empowers the Court of Petty Sessions, upon application by the Administrator, by order to declare that the deportation from Norfolk Island of a prohibited immigrant or the holder of a temporary entry permit who has contravened or failed to comply with the conditions subject to which the permit was granted is authorised. Sections 25 and 26 provide for the authorization of deportation of certain persons, including persons who have been ~ piven ll. guilty of serious misconduct. Where the Court of Petty Sessions has made an order declaring that the deportation of a person 1s authorised by the Ordinance the Administrator may make an order for that person's deportation from Norfolk Island: s.28. The appellant submitted that the order of the Court of Petty Sessions that the deportation of the appellant was authorised by the Ordinance was unlawful on the around that, when considered in the light of the construction and operation of the Ordinance as a whole, it necessarily reflects legislative recognition given by the Ordinance to the residents of Norfolk Island as a race, people or nation separate from other Australian citizens. He referred, ain particular, to matters not in dispute namely, that the residents of Norfolk Island have their own flag; stamps; customs duties; internal revenue; House of Assembly; administration and certain special celebrations e.g. Foundation Day, Bounty Day and Thanksgiving; the geographic remoteness of Norfolk Island from the world including Australia; the fact that residents of the Island require a passport to enter mainland Australia; and the fact that to bea resident of the Island requires birth on the Island or very close relationship toa resident of the Island or longa term residence or domicile and assimilation. The appellant submitted that in these circumstances the ct f . . . ent ern 12. distinction drawn in the Ordinance between the rights of residents of the Island and others, reflected in the classes of entry permits to which they are entitled, and the consequences of becoming a prohibited immigrant in the events specified in the Ordinance, turns essentially on questions of race, descent or national or ethnic origin and therefore falls within the prohibition of ss.9 and 10 of the Act. In our opinion the appellant's status as a prohibited immigrant under the Ordinance has no nexus with any question of race, colour, descent or national or ethnic origin. The appellant was not a "resident" within the meaning of the Ordinance or the holder at the material time of a temporary entry permit. He fulfilled all the necessary criteria to support the making of an order by the Court of Petty Sessions declaring that his deportation from Norfolk Island is authorised by the Ordinance. Questions of residence depend on the birth on Norfolk Island of the person concerned or of a close relative or long term residence and assimilation into the Norfolk Island community. The Ordinance does not select matters of race, colour, descent or national or ethnic origin as criteria for the determination of the rights of persons to enter or remain on or be deported from the Island. The Administrator's power to deport prohibited immigrants from the Island arises only in the circumstances mentioned in the Ordinance. In these circumstances it is unnecessary to consider what would constitute a distinction, exclusion or preference based on descent or Weape ye - pur ARG RENEE IOs Tre Se NLS gS eles Sill Adena Seti BS Ryn At ESN Uh RAE ES te ot ty ee! renee POEL PIETRO eb 13. national or ethnic origin for the purposes of s.9. We are not considering a case where the Administrator may have purported to exercise his power to deport a person and there is evidence of the power being exercised on grounds involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin. In such a case, a question may arise as to the application of ss.9 or 10 this of the Act; but that is not the present case. Although appeal does not involve any challenge to the deportation order made by the Administrator against the appellant, there is evidence that, after the appellant became a prohibited immigrant by the operation of sub-s. 10(2) of the Ordinance, he applied for a further temporary entry permit which was refused by an authorised officer on the following grounds: "You have accomplished the purpose for which you were previously permitted to enter and stay in Norfolk Island; A proposal that you remain ain Norfolk Island to complete a private study of the Kingston marine life does not constitute an acceptable need for you to be in Norfolk Island; Approval of your application as outlined above would be contrary to policy which precludes approval where the application includes school-age children and where the principal applicant is not engaged 1n an essential public service or in any area where managerial, technical or professional expertise is essential." The reference to "school-age children" appears to be a reference to a child of the appellant born in 1970. None of those grounds for refusal of the appellant's application for a 14, further temporary entry permit corfjlict with 33. 9 or 10 of the Act. We have considered the suesetions arising 2n this appeal in relation tos. 9 of the Act, pecause 1t was to that section that the appellant's submissions were directed. No separate consideration 1s required of s. i0 in tne circumstances of the present case. In our opinion the appeal should be dismissed with costs. | certify that this and the 13 preceding pages are a true copy of the reasons for Judgment herein of the Court LY LE a WG lite late