Immigration - judicial review - decision to deport prohibited non- citizen - whether breach of natural justice - whether entitlement to be heard before Immigration Review Panel ~- whether failure to aDahs take into account relevant considerations - onus of making known relevant considerations - whether error of law Sadewdattow ore Administrative Decisions (Judicial Review) Act 1977 s.5 Migration Act 1958 ss.6, 6A, 16,18 ae ALLAN KENDRICK DEAN v. LIONEL BARRIE WOODWARD No. WA G101 of 1984 TOOHEY J. PERTH 12 December 1984 Lae eee Sort ete 1' 2. eg pee eo nan, nna thet alee ih eT ee een tt IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G10l of 1984 eww we BETWEEN: ALLAN KENDRICK DEAN _. Applicant and LIONEL BARRIF, WOODWARD Respondent Q@ R D_E R JUDGE MAKING ORDER Toohey J. DATE_OF ORDER 12 December 1984 WHERE MADE Perth THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs application. of the ee ae ten FREOTTPUIC Ie fe: VRnO SS is SO UDON TS PONT A Ona OREN Pen a aren a UE OD OS nen ane ae nara IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G101 of 1984 —S ew BETWEEN: ALLAN KENDRICK DEAN Applicant and LIONEL BARRIE WOODWARD Respondent CORAM: TOOHEY J. 12 December 1984 REASONS FOR JUDGMENT The Migration Act 1958 s.18 empowers the Minister to order the deportation of a person who is a prohibited immigrant (now prohibited non-citizen) under any provision of the Act. On 21 September 1983 the Delegate of the Minister ordered that the applicant be deported from Australia, he being a prohibited immigrant by virtue of s.6 of the Act "in that he was not, at the time he then entered Australia, the holder of, or a person included in, an entry permit and an entry permit has not been granted to him since". The applicant is also a prohibited immigrant by virtue of sub-s.16(1) in that "at the time of entry he was a person who had been convicted of a crime and sentenced to imprisonment for a period of not less than one year and is not the er eerere oo? ' whe rake cae holder of an entry permit of the kind referred to in that sub-section". The applicant does not dispute that at the time of the deportation order he was a prohibited immigrant. It was therefore not open to him to seek a review of the Minister's decision under the provisions of the Administrative Appeals Tribunal Act 1975. However he seeks a review of the Delegate's decision under the provisions of the Administrative Decisions (Judicial Review) Act 1977. At the time the application was filed, the respondent had not provided a statement of reasons for his decision; he took the view that the applicant was not entitled to such a statement. However a statement of reasons has now been provided. in interlocutory proceedings before me a question arose as to whether the application was lodged within the time prescribed by s.1l of the Judicial Review Act. The respondent expressly took no point in this regard and I need spend no more time on it. The application is brought on three grounds. (1) There was a breach of the rules of natural justice in that the applicant was not told of his right to put a case for remaining in Australia to the Immigration Review Panel. As formulated the ground continues: ",.. nor was he advised of any other right of review, nor given any opportunity for a hearing". : { { { ee, Sea eRe 8 eal Mr. Walker, counsel for the applicant, acknowledged that no right of review was suggested other than the procedure involving the Immigration Review Panel. (2) The decision was an improper exercise of power in that the respondent failed to take into account a number of relevant considerations. -_— (3) The decision involved an error of law, or was otherwise contrary to law, in that the respondent acted on incorrect advice that the applicant was not eligible for the grant of an entry permit under s.6A of the Migration Act. Counsel for the applicant has said all that can be said in support of this application but, in my view, it must fail. My reasons for reaching this conclusion are as follows. The Immigration Review Panel is a non-statutory body, established to investigate certain cases arising within the Department of Immigration and Ethnic Affairs and to make recommendations to the Minister whether to vary or uphold a departmental decision relating to such a case. The function of the panel appears ina document published by the department entitled "The Review Rights". There are three essential requirements for eligibility to lodge a request for review; the only one in issue here is that the decision must come within one of the twelve review rights listed in the document. The applicant contends that Review Right 11 and Review Right 12 are applicable to his case. The respondent submits that the applicant was not eligible to bring his case before the panel. I should make it clear that the applicant did not contend that he was entitled to have his case reviewed after the deportation order was made; his complaint was that he was deprived of the opportunity of review before the order was made. Review Right 1l is expressed to apply to a person "who, having been located as a prohibited immigrant (excepting pursuant to section 16(1) of the Migration Act - see Review Right 12), and as such is deportable under section 18 of the Migration Act 1958, is found to be eligible for consideration for resident status under section 6A(1)(b) of the Migration Act". Review Right 12 is expressed to apply to a person "who, having been admitted to Australia in possession of a migrant visa, is subsequently found to be a prohibited immigrant pursuant to section 16(1) of the Migration Act and is therefore liable to deportation under section 18 of the Act, such a person is required to seek a specially endorsed entry permit as required by section 16 of the Act". Review Right ll is not applicable to the applicant because he was a prohibited immigrant by reason of sub-s.16(1) of the Migration Act. At the time of entry to Australia in 1979 he had 17 convictions, mainly for indecent assault on a male, some of which involved minors. He had been sentenced to various terms of te te er eh re oe me ot 5. imprisonment and it is enough, for the purposes of the section, to mention that on 24 July 1970 he was convicted of three charges of indecent assault ona boy under 16 years and was sentenced to 8 years imprisonment on each charge. Review Right 12 is not applicable because the applicant was not admitted to Australia in possession of a migrant visa. His counsel argued that, while literally the applicant did not fall within Review Right 12, he had come from New Zealand where a visa was not required. But the applicant came neither within the letter nor the spirit of review Right 12. By virtue of his convictions he was not exempt from the requirements of Division 1 of Part II of the Act, hence an entry permit was required. He did not hold anentry permit and indeed appears to have entered Australia under an assumed name since no record can be found of his entry to this country. In these circumstances I see nothing to be gained by making yet another contribution to the debate concerning the requirements (if any) of the rules of natural justice in regard to the deportation of prohibited immigrants or prohibited non- citizens as they are now called. The only complaint made by the applicant in this regard concerns the Immigration Review Panel and, in my opinion, he had no entitlement to air his case before that body. The argument that the respondent failed to take into account relevant considerations largely turns on the applicant's homosexuality. His many convictions in New Zealand and his 6. several convictions in Western Australia are the product of his homosexuality. It is said that the applicant's "rehabilitation" is more likely in Australia. Since the applicant is and wishes to continue as a practising homosexual, a question arises as to what is meant by "rehabilitation" in his case. The applicant appears to be saying two things. The first is that if he remains in Australia he can go to New South Wales where homosexual act between consenting male adults no longer constitutes a criminal offence. However the term "rehabilitation" is construed, it is not appropriate to that situation. But I understand the applicant to be saying that, if he does go to New South Wales, he will have access to homosexual counselling and support organisations, making it less likely that his conduct will involve minors. This attitude is understandable though, given the number of offences in which minors were involved, one would expect some persuasive evidence that a move to New South Wales would have the desired result. That evidence was not forthcoming. It is likely too that the respondent did not take this particular matter into account but the short answer to the applicant's complaint is that the respondent was not invited to do soa. Before the decision to deport was made, the respondent was of course aware of the applicant's homosexuality and his criminal convictions. The record of interview between an officer of the department and the applicant shows that the applicant offered as a reason for not wishing to be deported that his economic prospects would be much worse in New Zealand than in Australia, particularly in view of his criminal convictions in that country. But nothing was said to suggest that the applicant thought he would benefit personally by 7. living in New South Wales. Nor, it would appear, had he attempted at any time to move from Western Australia to the Eastern States. I am not to be taken as asserting as a general proposition that it is a sufficient answer to a complaint that a decision maker failed to take into account a relevant consideration, that the person affected by his decision failed to bring that matter to his attention. There may be some considerations so obvious that the decision maker must take them into account whether or not his attention has been expressly directed to then. But in the present case the question of benefits to be derived by the applicant from living in New South Wales was essentially a matter to come from him and to be put before the respondent in support of his application to remain in this country. It was not done. The other matters which it is said the respondent failed to take into account concern the likely future personal circumstances of the applicant in this country, as contrasted with New Zealand, and the fact that the crimes of which he had been convicted before entry to Australia "arose from the Applicant's homosexuality". As to the first of these, I am not persuaded that the respondent failed to take into account the applicant's personal circumstances. The statement of reasons may not give the enphasis to the applicant's personai circumstances that he would wish but, in so far as those circumstances were made known to the respondent, I am satisfied that he took them into account. 8. Paragraph 15 of the statement of reasons deals with personal circumstances. There 1s no reason to think that the respondent did not take into account the fact that the applicant's offences arose from his homosexuality; this must have been obvious. But it is equally obvious that a number of those offences involved minors; this was a matter the respondent was entitled to take into account. It should not be assumed from the fact that the statement of reasons makes no express reference to this aspect that it played no part in the decision to deport. The pro forma document used by the department for interviews with prohibited immigrants includes this heading: "(e) Section 6A Migration Act explained. Eligibie not eligible what claims made?" Against this heading the interviewing officer wrote "Not eligible". This is the basis of the submission that the decision involved an error of law, it being said that the applicant was eligible for the grant of an entry permit under s.6A. Section 6A provides that an entry permit shall not be granted to an immigrant after entry into Australia unless one or more of the conditions set out therein is fulfilled. None of these conditions is directly applicable in the present case though para (e) refers to a person who 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". ee In his statement of reasons paras 10-12, the respondent refers to the fact that the applicant is a prohibited non-citizen and that, by virtue of his criminal convictions in New Zealand, he is not an exempt person under s.8 of the Act. The respondent accepted that it was possible to authorise the applicant's continued presence in Australia by the grant of a suitably endorsed temporary entry permit pursuant to sub-s.16(1) of the Act but considered that such a grant was inappropriate because of the applicant's criminal record both in Australia and New Zealand. The respondent also accepted that the applicant could be made eligible under para 6A(1)(e) of the Act by the grant of a temporary entry permit but concluded that there were no strong compassionate or humanitarian grounds for the grant of a permanent entry permit to hin. Whether or not the notation "not eligible" was strictly accurate, the material before the Court shows that the respondent gave proper consideration to the propriety of granting an entry permit by means of a temporary entry permit on compassionate or humanitarian grounds. The respondent rejected that approach and this Court does not sit as a tribunal to review the correctness or otherwise of that conclusion. In all the circumstances the application must be dismissed. I certify that this and the eight preceding pages are a true copy of Reasons for Judgment herein of his Honour Mr. Justice Toohey Associate Dated: 12 December 1984 CATCHWORDS Bankruptcy - application for discharqe in absence of consent by Official Trustee - sequestration order made in 1975 - whether discharge by operation of law - whether Official Trustee's objections invalid - matters relevant to Court's discretion in discharce applications. Bankruptcy Act 1966. s. 149. Bankruptcy Amendment Act 1980, s. 72. RE: MIJQ DUGAC and MARIO DUGAC No. 508 of 1975 Lockhart J. 9 November 1984 Sydnev THE BANKRUPTCY ACT 1966 IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVSION ) BANKRUPTCY DISTRICT 'THE STATE OF ) No. 508 of 1975 NEW SOUTH WALES AND THE AUSTRALIAN) CAPITAL TERRITORY' ) RE: MIJO DUGAC and MARIO DUGAC Judge Making Order: Lockhart J. Date of Order: 9 November 1984 Where Made: Svdney ORDER THE COURT ORDERS THAT: 1. There be an order of discharge in each case; 2. The bankrupts pav the costs of the Official Trustee of these applications including reserved costs and the costs of the proceedings before the Court on 5 November and today. THE BANKRUPTCY ACT 1966 IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVSION ) BANKRUPTCY DISTRICT 'THE STATE OF ) No. 508 of 1975 NEW SOUTH WALES AND THE AUSTRALIAN) CAPITAL TERRITORY' ) RE: MIJO DUGAC and MARIO DUGAC Coram: Lockhart J. 9 November 1984 REASONS FOR JUDGMENT LOCKHART J. There are two applications for discharge from bankruptcy bv Miio Dugac and Mario Duqgac - his son. Sequestration orders were made against their estates on 9 December 1975. The applicants came to Australia from Yuqaoslavia in July 1970. Thev had no assets upon their arrival here and were emploved as carpenters until 1972 when they formed a partnership which carried on the business of formwork contractors under the name of M. & M. Formwork. The business traded successfully at first but, due to reasons which I need not mention, losses were incurred. Bankruptcy ensued. Seven creditors have lodged proofs of debt in the Joint estate of the applicants and thev have been admitted to rank for dividend for a total sum of $46,522. One creditor who was disclosed in the statement of affairs as a joint creditor for a sum of a little over §1000 has not lodaed a proof. No proofs have been lodged in the separate estates of the applicants. 2. Substantial sums are required to pay the fees of administration ($6370) and the petitioning creditor's costs of the petition ($912). No dividends have been paid to creditors. Before turning to the other facts that are relevant to the applications, I shall deal with a preliminary point that was taken by counsel for the applicants. It was submitted that the application for discharge was really unnecessary because the applicants were discharged from bankruptcy by operation of lawonil February 1981. This was said to result from the following circumstances. The sequestration orders were made on 9 December 1975 and an objection to the discharge of each applicant was entered by the Official Receiver on 28 November 1978 (rule 49). It is common ground that the relevant provision of the Bankruptcy Amendment Act 1980 (s. 72) commenced on 1 February 1981. Section 72 repealed s. 149 of the Bankruptcy Act 1966 and substituted a new s. 149 in its stead. That new section provides, so far as is presently relevant, that, subject to that section, a person who was an undischarged bankrupt immediately prior to 1 February 1981 is by force of the new section discharged from bankruptcy from the date of commencement of the secLion. However, sub-s. 149(3) provides that a bankrupt is not discharged from bankruptcy by virtue of s. 149 if the Official Receiver or the Trustee has entered an objection to the discharge of the bankrupt by force of the section. and the objection has not been withdrawn or lapsed before the time when the bankrupt could have been so discharged but for sub-s. 149(3). 3. Paragraph 149(7)(a) of the new section provides that an objection entered under para. 149(3)(c) lapses at the expiration of the pericd of five years from the date of the bankruptcy. The objection was said therefore to have lapsed on 93 December 1980 (assuming that the expression in para. 149(7)(a) "the date of the bankruptcy" means the date of the making of the sequestration order). Hence sub-s. 149(3) presented no bar to the automatic discharge from bankruptcy of the applicants on 1 February 1981 when the news. 149 commenced. So runs the argument on behalf of the applicants. Counsel for the Official Trustee submitted that this argument was unsound because it failed to take into consideration sub-s. 72(2) of the Bankruptcy Amendment Act 1980 which - so far as is presently relevant - provided that where the trustee has before 1 February 1981 entered an objection under para. 149(3)(b) of the Principal Act to the discharge of a bankrupt and the objection has not been withdrawn before 1 February 1981 and the bankrupt has not been discharged under s. 150 of the Principal Act before 1 February 1981, then s. 149 of the Principal Act, as amended by sub-s. 72({1) of the Bankruptcy Amendment Act 1980 applies in relation to the objection as if the objection had been entered by the Trustee under para. 149(3)(c) of the Principal Act as so amended (the emphasis 1s mine) and the reference in sub-s. 149(7) of the Principal Act as so amended to the date of the bankruptcy were read as a reference to 1 February 1981 (being the date of commencement of s. 72). It was submitted by counsel for the Official Trustee that in those circumstances the objections to the discharge from bankruptcy had not lapsed so that the applicants remain bankrupt. In my opinion the argument of counsel for the Official Trustee is correct. The key to the argument advanced on behalf of the applicants is that the objections lapsed upon the expiration of five years from 9 December 1975: see para. 149(7)(a). The provisions of sub-s. 72(2) of the Bankruptcy Amendment Act 1980, especially para. 72(2)(£), lead, however, to the conclusion that the objections have not lapsed. Counsel for the applicants submitted in the alternative that the objections were invalid because they stated as the ground of the objection in each case that "the bankrupt has left his last known address and his whereabouts are unknown" and this was not - so it was asserted - an available ground of objection. I reject this argument. At the time the objections were entered it was necessary that they be entered in the prescribed manner (see para. 149(3)(b)), but there was no requirement under the lawas it then stood that a ground of objection be specified. This requirement was introduced by sub-s. 72(1) of the Bankruptcy Amendment Act 1980. A further argument was put in the alternative by counsel for the applicant relating to the objections namely, that they were in effect de minimis or of so little significance that they could not constitute valid objections. In any event, so it was asserted, the facts did not accord with the objections at the time it was entered. I reject those arguments. The grounds of objection echo, though not in precise language, nevertheless, the substance of sgub-s. 80(1) of the Act which renders it an offence for a bankrupt not to forthwith notify the Registrar and the Trustee in writing of any change in his address that occurs during his bankruptcy. This is in substance what the objections have done and it is not trivial especially as the offence is accompanied by a monetary penalty or imprisonment for six months. So far as the facts are concerned, there is nothing before me to suggest that at the time of the entering of the objections, or indeed, at any other material time, the facts related in the grounds of objection were not true. Accordingly, the preliminary objection is overruled. I now turn to the facts for the purpose of dealing with the applications for discharge on their merits. I do not propose to analyse ali the facts in detail. They are stated fully in the report and the two supplementary reports of the Official Trustee and in affidavits filed in the matter, including affidavits filed by the applicants. There is some question as to the extent to which the applicants have a proprietary interest in a house property at 28 Brentwood Street, Sans Souci, and as to what happened to rentals received from that property. The position is not entirely satisfactory; but I am not satisfied on the material before me that the applicants have derived financial benefit since their bankruptcies commenced from the letting of the premises except to the slight extent mentioned in the evidence. The applicants have been publicly examined over a number of days and other people have also been examined with respect to the dealings, property and affairs of the applicants. Some question arises as to the interest of the applicants in a company Marijan Constructions Pty. Limited, in particular with respect to loan accounts. I do not propose to traverse the material in relation to those except to say that I am left with a somewhat unsatisfactory feeling at the end of the evidence that the whole position has not been placed before the Court; but I do not think the evidence establishes that the applicants have behaved in relation to that company in an untoward or questionable fashion. Nor on the other hand am I satisfied that they have not. I simply do not know. The Official Trustee has brought to the Court's attention certain matters relating to a caravan, registered in the name of Mario Dugac, and a Honda motor cycle. I do not propose to traverse the evidence on that. It has been ventilated and I do not think that material emerges from it which would operate to adversely affect the applicants' case for a discharge. The applicants have however not surrendered their Yugoslav passports to the Official Trustee as required by law. Indeed, years ago they were reminded of their obligations in this regard and they were requested specifically to surrender those passports late last year, but they did not do so. They offer an explanation in relation to this which in substance is that they thought that they could not be obliged to surrender their passports other than with the consent of the Yugoslav Government or Embassy. I suppose with people who have not been born in this country, and having arrived here in about 1970, whose English - I am told - is not good and who come from a country with very different traditions to this country, the explanation offered for not surrendering the passports deserves some degree of sympathy. But it does not in my view excuse the failure to surrender passports to the Official Receiver, and I must take that into account in relation to the application for discharge. On the other hand, Mario Dugac has sworn that he is prepared to obey the order of the Court and produce his passport to the Court. The Official Trustee has very properly, I think, raised a number of matters which bear upon the applications for discharge. He does not oppose the discharges from bankruptcy, but he does not consent to them. He has brought the matters to which I have referred, and other matters which are embodied in his reports and the evidence, to the attention of the Court in accordance with his duty and they have been of assistance in resolving these applications. No creditors have appeared to support or oppose the applications for discharge. The "applicants have been bankrupt for a long time, almost nine years. They will be discharged from bankruptcy by operation of law in February 1986, a little over twelve months hence. I could take the course of dismissing these applications and letting the law take its course then. Indeed, IT have qiven careful thought to adopting that course. But, on the other hand, the passage of time since the making of the sequestration orders, the fact that Mario Dugac was a young man at the time of his bankruptcy, the family commitments of the applicants, the fact that the debts that led to bankruptcy were not incurred in circumstances attracting moral censure, and the fact that the objections were lodged a long time ago, are some of the matters that I take into account in favour of granting the applications for discharge today. T also take into account what seems to me to be a matter of considerable importance, namely that I really do not think that there is any useful purpose to be served, or that it is in anybody's interests to continue these bankruptcies. Nor doI think that the interests of the public will be offended if discharges are granted in the circumstances of this case, some nine years after the sequestration orders were made. However, by granting an early discharge I hope that the applicants realise that the Court puts some trust in them that they will in the future observe the laws of the land and proper standards of behaviour. Accordingly I make orders of discharge. 9, That leaves the question of costs. The proper order for costs in the circumtances is that the applicants should pay the Official Trustee's costs of this application, including reserved costs, and the costs of the hearing before me of Monday 5 November 1984 as well as today. The Trustee has properly brought certain matters to the Court's attention and has assisted me in dealing with the applications. I therefore make that order for costs. | certify that this and the , preceding pages are 8 true copy of the Reasons for Judsrert here of his Honour Mr. Justice Locknart. Dated: 7 "/- 94 |