CATCHWORDS \ ADMINISTRATIVE LAW - Immigration - Prohibited non-citizens Visitors overstaying visas - Child born co apslicants in Australia - Whether breach of rules of natural justice - Whether rules of natural justice apply - Whether any invalidity in Minister's decision - Relevance of fact that application has been made for reasons for deportation order and reasons net vet supplied. Administrative Decisions 'Judicial Peview) Bct 1977 ss. 13, Salemi vy Mackellsr (1975) 137 C.L.R. ; The Ougen v Mackellar; @x parte Ratu (1977) 137 C.L.R. 461 referred to. N.S.W. No. G.137 of 1985 AYNUR KARATAS and NAFRIG KARATAS v CHRISTOPHER JOHN HURFORD. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Wilcox J. SP) vdnevy I 4 June 1985 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION WILCOX J. 14 JUNE 1985 SYDNEY THE COURT ORDERS THAT: tv No. G.137 of 1985 wwe BETWEEN : AZNUR KARATAS First Applicant AND: NAFRIZ. KARATAS Second Applicant AND: CHRISTOPHER JOHN HURFORD MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent MINUTE OF ORDERS The application in the Notice of Motion for a stay of ' the decisions £0 deport the applicants is refused. the respondent's costs of the ' NOTE: Settlement and entry of orders is dealt with in Order 36 of'the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.137 of 1985 ee ee GENERAL DIVISION BETWEEN : AYNUR KARATAS First Applicant AND: NAFRIZ KARATAS Second Applicant AND: CHRISTOPHER JOHN HURFORD MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: WILCOX J. DATE: 14 JUNE 1985 PLACE: SYDNEY EXTEMPORE REASONS FOR JUDGMENT This is an application made pursuant to a Notice of Motion filed yesterday, 13 June, for a stay of proceedings in 1 relation to a decision by the respondent Minister to deport from Australia the two applicants. The application is made under s.15 of the Administrative Decisions (Judicial Review) Act 1977, the applicants having filed last Friday, 7 June, an 2. application for review of a decision of the Minister made on or before 26 April 1985 that the applicants do not qualaify for entry permits or resident status in Australia under the provisions of s.6A(1) of the Migration Act 1958. I think that the reference to the decision of the respondent in the application is intended to be a reference to a decision taken on behalf of the Minister by Mr R Robilliard, who signed a letter of 26 April 1985 to the solicitors acting for the applicants expressing a view that if the applicants were to lodge a formal application for residence there are insufficient grounds to warrant approval under the conditions of s.6A(1) of the Migration Act. Apparently the applicants had not then -- and I have been told have not since -- submitted a formal application for resident status in Australia. Notwithstanding that, according to Mr Robilliard, the information which had been supplied on their behalf by their solicitors had been given what he called sympathetic consideration in order to consider whether there were grounds to warrant an approval if an application were made. The history of the matter, as it emerges from the material before me, 18 that the applicants, husband and wife, arrived in Australia on 8 February 1981. They are apparently natives of Turkey, the male applicant, Nafiz Karatas, being born 1 November 1947 and Mrs Karatas being born on 10 October 1955. TN bee wets . ow Tat Sao rece "eo Lt em a i. . - . x 7 They left behind them in Turkey, apparently with Mrs Karatas' parents, four children who are now aged ten, nine, seven and four and a half years. The youngest child must have been a very young baby at the time that the applicants came to Australia. Apparently Mr Karatas has two siblings in Australia and I gather that they have resident status. His mother is also here but she does not have resident status at the present time. Mr and Mrs Karatas were admitted into Australia ona visitor's visa valid for one month. It was a condition of their entry into Australia that they do not engage in employment. Notwithstanding that, only e1ght days after arriving in Australia, Mr Karatas commenced employment in a ewer nn eet ine a tenn ee tt ee en ate ae ater bce ne late Saran: areamlnekinent ine nia Rant mreen s heumneasates wre nenmtnn Tan anert Anarene nae atta es factory in Sydney and he continued in that employment until he was arrested and taken into custody on 9 April 1985. Mrs Karatas commenced employment apparently in early 1981 and worked for some two and half vears until November 1983. Subsequently she became employed doing piece-work sewing and this continued until the time when her husband was arrested. Sre herself was not arrested but required to report three times per week pending further consideration of the matter. Since their arrival into Australia the applicants have had one further child, who is now aged about seven months. She, having been born in Australia, 18s of course an Australian citizen and is legally entitled to remain in Australia; and indeed to return to Australia at anv time. Mr Karatas took employment under a name slightly different from his true name. Whether that was done ina desire to avoid coming to the notice of the Department of Immigration I do not know, and I draw no inference, but perhaps for that reason it was not until April 1985 that it came to the notice of the Department that Mr and Mrs Karatas were in Sydney and action was taken. After Mr Karatas was arrested both he and his wife were interviewed by an officer of the Department of Immigration. It appears that Mrs Karatas was interviewed on 10 April 1985 when she was asked a series of questions, the answers to which were recorded in a document which she signed by way of confirmation. She informed the Departmental representative at that time that Mr Carter, a solicitor, would be making representations. In answer to an inquiry about any additional matters which she wished to be considered by the Minister or his delegate, the reply was given, "None". It appears that the interview was conducted through an interpreter who made the usual statement as to his interpretation. Mr Karatas was interviewed on the following day, 11 April, when the same procedure was followed. Again there was an intepreter in attendance. Also present were Mr Karatas' brother. a barrister, Mr Stanton, and a solicitor, Mr Hall. In answer to an inquiry whether Mr Karatas claimed to fulfil any of the conditions under s.6A of the Act, a reference was made to compassionate grounds because of his wife's health. His wife had not herself made any such claim in relation to the same question asked of her the previous day. Mr Karatas indicated, in respect of the question about representations having been made, or to be made that Mr Stanton and Mr Hall will be submitting representations. In answer to a question about any other matters which he wished to be considered by the Minister or his delegate, he referred to the fact that his mother was helping with the purchase of a flat, that he has a $10,000 mortgage, and there is a reference to a $10,000 loan from a broker. It is not clear whether that is the same amount or whether there are two loans involved. There was subsequently submitted to the Department, under cover of a letter from the applicant's solicitors dated 24 April 1984, a letter of 15 April 1985 signed by Dr Oscar Schmalzbach, a consultant psychiatrist. This letter revealed that he had seen Mrs Karatas on two occasions, namely 12 April and 15 April, he having the advantage of a Turkish interpreter in the consultations. Dr Schmalzbach obtained a history of Mrs Karatas having some psychiatric problems after the birth of her second youngest child, that is to say, the child who is now four and a half years old and who was born shortly before she came to Australia. Mrs Karatas informed Dr Schmalzbach that she was depressed, miserable and unhappy, and at the time received extensive electro-convulsive treatment. She said that she had had similar problems after the birth of her first child thirteen years ago. She was not hospitalized but received her treatment on an out-patient's basis. She told Dr Schmalzbach that since coming to this country she was not infrequently feeling down-hearted, miserable and depressed, specifically because of heing separated from her four other children. She described her feelings as being always scared. She stressed that she liked Australia very much and she would like her four children in Turkey to live in Australia, as she described it as a better country. She went on to report that over the last few days she had developed a constant headache, after her husband had been arrested and taken to Villawood Detention Centre. She did not wish to go back to Turkey but would like to stay in Australia. Dr Schmalzbach reported Mrs Karatas seemed to be suffering from a reactive depressive state, similar to the condition she had experienced in Turkey. Dr Schmalzbach ended his letter by expressing the view that on humanitarian and compassionate grounds, with Mrs Karatas' past psychiatric history and recent exacerbation of her depression, her case should be considered, if possible, as one to which some exemption should be applied, specifically having regard to the fact that her youngest child was born here and is an Australian citizen by law. In velation to each of the applicants, a deportation case summary was prepared within the Department, being signed on 16 May 1985 by My J R Tuchin, the Acting Director for New South Wales and the delegate of the Minister. On 24 May 1985, a submission was prepared addressed to the Minister and relating to the two applicants. The submission itself shortly summarized the background and the issues. It annexed each of the deportation case summaries, the letter from the applicants' solicitors attaching the report of Dr Schmalzbach, the letter from Mr Robilliard of 26 April 1985 and a letter from Mr Robert Tickner MP to the Minister making representations on behalf of the applicants at the behest of Mr Russell Burns, a solicitor of Surry Hills. It is not suggested that the submission to the Minister is erroneous in any way, nor indeed has 1t been suggested that anything in the deportation case summary is inaccurate. It seems to me that those responsible have properly collated the relevant information and have put before the Minister everything which the applicants themselves had put before the Department in support of their claim not to he deported. tn EE A te eT NE Me _ oe =F mee: - ans a ee There is some question about the status of the decision of 26 April. As I have said, there was not, and there has not subsequently been, any formal application for the grant to the applicants of resident status in Australia. However, it seems appropriate to deal with the current application on the basis that the letter of 26 April revealed a decision adverse to the applicants in respect of the question whether they should be accorded resident status in Australia. Quite clearly, the matter was considered by the Department upon the same basis as if there had been a formal application, and the decision to deport is really a reflection of the fact that the Department and the Minister had come to the conclusion that a formal application for resident status would be refused. In order to justify the making of an order under s.15 of the Administrative Decisions (Judicial Review) Act, it is necessary for there to be some material before the Court to indicate that there is a serious question about the legal validity of the two relevant decisions which have been made. I mean by that, firstly, the decision set out in the letter of 26 April, and, secondly, the decision of the Minister, which was made on 2 June 1985, to adopt the submission made to him for deportation action. 9. There is no question about the balance of convenience. Obviously, if there is a serious question to be tried, the balance of convenience points to the making of a stay order until that question can be determined. The application, which was filed on 7 June, nominates two grounds for the application. The first stated ground is that a breach of the rules of natural justice occurred in connection with the making of the decision. Counsel for the applicants accepts that the current state of authority in the High Court is that the rules of natural justice do not apply to decisions in relation to the deportation of prohibited non-citizens; see Salemi v Mackellar (1976) 137 C.L.R. 396 and The Queen v Mackellar: ex parte Ratu (1977) 137 C.L.R. 461. It is true, as counsel points out, that there is presently reserved in the High Court a decision in a matter of Kioa v Minister for Immigration in which it has apparently been argued that the Court should depart from the view expressed in Salemi and Ratu and hold that the rules of natural justice do apply to such decisions. If the material before me indicated an arguable basis for a submission that there had not been a compliance with the rules of natural justice in this case, a question would arise as to whether I ought to grant a stay in order that there could be argument as to the proper course to be taken in a situation where the existing state of authority is that the rules of natural justice do not apply but where it is possible, and I ee = eee 10. say nothing about the degree of probability, that the High Court will in the near future take a different view. However, that dilemma does not arise in this case because there is nothing whatever before me to indicate that there has been a failure to comply with the rules of natural justice in this case. On the contrary, it appears that each of the applicants were interviewed with the benefit of an interpreter and, in the case of the male applicant, with the benefit of legal advice available to him from his own barrister and solicitor. Both the applicants were advised of their entitlement to submit further material, and they took advantage of this, with legal assistance, in forwarding Dr Schmalzbach's letter. There is nothing to suggest that they have at any stage desired to put anv further information before the Department or that they have been precluded in any way from drawing to the attention of the Department and the Minister such matters as they regard as material to their claim to be allowed to remain in Australia. As I have said, the deportation case summary summarizes the facts of the matter in a manner which has not been the subject of criticism, and the formal submission to the Minister -- short though it is -- has escaped any criticism as to its accuracy. Counsel has put before me nothing to indicate any respect in which it might be said, even arguably, that there has been a failure to comply with the rules of natural justice. Even if the position should he ov . ot 4 4 gt eof « ~ . s geeet ey Oo ee . - 5 ets il. that in Kioa's case the High Court departs from its previous decisions, in my view the ground which relies upon a breach of the rules of natural justice 1s foredoomed to failure. There 1s nothing before me to show that there is even an arguable case on that ground. The second ground which is stated in the application is that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. The submissions that were put, apparently on the basis of that second ground, related to the weight which, in the view of the applicants, should have been given to various matters. Reference was made to the fact that they had a chiid who was an Australian citizen. Given her age, it is extremely likely that the child will depart from Australia with the applicants if they are deported although, of course, this would not be legally necessary. I think 1t is quite clear from the Departmental summary that the officers of the Department envisaged that this was the most likely outcome. However, the position of the child was quite clearly brought to the attention of the Minister. It is mentioned as item 3 on a list of what are called "issues" in the submission. The details regarding the baby are spelt out in the deportation case summaries and the records of interview. Any reader of that file would be left in no uncertainty as to the fact that the applicants had an - a, ty TE Ae baat eee Seer es | 12. Australian born child, who was an Australian citizen and who would be necessarily affected by a decision to deport the applicants. - The second matter to which reference has been made is what is described as the excellent work history of the male applicant. It appears to be the fact that he has worked continuously with one employer since the week after his arrival in Australia and until his arrest. It might also be added that Mrs Karatas has worked throughout a substantial portion of her time in Australia. Both applicants can fairly be regarded as hard-working people who are prepared to pay their own way in terms of their economic support in Australia. It is said in elaboration of this that, apart from child endowment paid in respect of the baby, no social service payments have been made to them by the Australian Government. Of course, that they have worked in Australia is a two-edged fact; to so work was in breach of the conditions of their visas. But, once again, I think it is clear that a reader of the material submitted to the Minister would be left in no doubt whatever about the fact that both Mr and Mrs Karatas were people who had worked and supported themselves since thev arrived in Australia. The third matter to which reference is made is Mrs Karatas' state of health. To what extent she will be adversely affected by being forced to return to Turkey is a | eee, - SS wee tle WS 13. matter which it is unnecessary for me to attempt to resolve. I think it is sufficient to say that Dr Schmalzbach, who is a highly qualified psychiatrist, had the benefit of two consultations with Mrs Karatas and he summarized the position as he saw it. He expressed his views in very clear terms in a letter which was placed before the Minister in a complete condition. Specific reference was made to the matter of Mrs Karatas' history of depression in the issues summarized for the benefit of the Minister in the submission which went before him. Once again, I think it is impossible for any reader of the file not to be aware of the fact of Mrs Karatas' depression and Dr Schmalzbach's view that she would benefit, from a psychiatric point of view, in being allowed to remain in Australia. In short, the three matters which are relied upon are all matters which were fully and fairly put before the Minister. The weight to be given to those matters individually and cumulatively was entirely a matter for the Minister. It is not material whether any member of this Court, in a particular case, would have come to a similar decision in relation to weight as the Minister. Providing that the matters are fully and fairly put before him, it 1s for him to decide whether, having regard to the whole of the circumstances, he should or should not grant resident status, and whether he should or should not deport. 7 - - = note, * hd S a ta nt pts tet cr ns tee Tae 14. Counsel for the applicants has argued that I should grant a stay of proceedings until such time as reasons are provided by the Minister pursuant to s.13 of the Administrative Decisions (Judicial Review) Act. A letter was sent by the solicitors for the applicant seeking reasons on 7 June. It saying that I am assuming the correctness of a statement made by Mr Carter, the solicitor for the applicants, in paragraph 5 of his affidavit of 13 June 1985, that he is informed and verily believes that on 7 Jume a letter of request was delivered to the respondent, pursuant to the provisions of s.13, requesting reasons for the respondent's decision to deport. . The letter itself is not in evidence; nor is the basis of Mr Carter's belief but in favour of the applicants I assume there was such a request made on that day. Not surprisingly, it has not yet been possible for the Minister to respond to that request. I do not accept the view that a person who is unable to show even an arguable case of legal invalidity is entitled to have a stay of an order for deportation simply because he or she has sought reasons which have not yet been provided. A request for s.13 reasons does not, of itself, operate to suspend the operation of an administrative decision to which 1t applies. Moreover, it must be borne in mind that there is often little time between a decision to deport and the ost: +? rode pears Ln ree ME 7 « - . ten wo* > ¥ * 5 5 . ~~ a ee EE ee BE Pnme2d merc et dtl am die tam ae satel het ABE en eden nent ta tech lp he le er est ae crenata tae et ede Rata, I wate a ot = PO teas ae Oe 15. carrying out of the decision and, I think for good reason, the Department seeks to carry out the decision as quickly as possible. I say "good reason" because generally the person 1s held in custody and it is inherently undesirable that people be kept in custody and in a state of uncertainty any longer than necessary. If the submission for the applicants is to he accepted the position would seem to be that there was always likely to be a delay of some weeks between the time when the decision to deport was made and the time when effectively it could be carried out. There 1s no basis in the authorities for the view that an applicant in such a situation automatically has a right to a stay. It may be relevant in considering the arguability of a point which has arisen and which may appear weak; that the point may be stronger if and when reasons are obtained. But there must be at least something to excite the concern of the Court as to the validity of the decision. Counsel for the applicants has pointed out that we do not have the reasons of the Minister for making the deportation order, as distinct from the material that went before him. That is true but, for the reasons I have given, I do not think that there should be a stay simply because of that fact. It 1s worth noting that, although the applicants took the view that the decision communicated by the letter of 16. 26 April was a decision which was reviewable under the Administrative Decisions (Judicial Review) Act, they did not seek any reasons under s.13 of that Act within the period of 28 days which is provided by that section. The position, therefore, 1s that the request for a statement of reason comes right at the time when the deportation is about to be carried into effect. I do not say this critically of the applicants' advisers. They are entitled to seek reasons under s.13 for the Minister's decision of 2 June and they acted promptly in seeking these reasons on 7 June. But I simply observe that there would have been an opportunity to obtain reasons at an earlier date; according to the view which underlies the bringing of the principal proceedings. In the end the question I have to ask myself is whether there is matter, which appears in the material before the Court or in relation to which counsel has addressed, which affords an arguable basis for the view that a legal invalidity has affected any of the relevant decisions. I see nothing whatever to suggest such a situation and I see no basis upon which it can be said that there is a serious question as to the validity of either of those decisions. Under those circumstances I refuse the application for a stay. The application in the Notice of Motion is refused. I order the applicants to pay the respondent's costs of the motion. 17. ' I certify that the sixteen (16) preceding pages are a true copy of the Reasons for Judament herein of | his Honour Mr. Justice Wilcox. Associate: Date: 223 July 1985 Counsel for the applicant: Mr J Simpkins Solicitors for the applicant: Messrs Teakle Ormsby and ' Associates Appearance for the respondent: —_ —_ Solicitors for the respondent: Australian Government Solicitor (ms ®. SHARP), Date(s) of hearing: 14 June 13985 mn nt a YR RF REAR NARI er tr An RE RN A SN