Qe A2 2 ey =" , ere, CATCHWORDS ADMINISTRATIVE LAW - Immigration - Natural justice - Whe Department obliged to make Known its attitude to informa ther tion provided by applicant for resident status - whether irrelevant considerations taken into account in making order for deporta - whether appiication of policy without regard to merits of - effeccr of earlier decisions to refuse resident status refugee status to aprlicant. Administrative Decisions (Judicial Peview) Act 1977 ss. 5.1) fa),5¢2)(a),(£),(9),Ch) Sean Investments v. Mackeliar (1981) 38 A.L.R. 362 ref'd to Gurleyen v. Minister for Immicgration and Ethnic Affairs, (Ful Federal Court, unreported, 24 February 1984) ref''d to Peko-Kallsend Ltd. v. Manister for Aboriginal Affsirs (1985) 59 A.OLP. 51 ref'd to Kica v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321 cons. Tacle wv, Minister for Immiqration and Ethnic Affairs (1983) 456 ALLR. 379, aff'd (1983) 49 A,L.R. 566 ref'd to FOSHP2RANY Y_ SINNATHAMPY & OPS, v. MINISTER FOR IMMIGRATION AND EYHNTC AFFATR NO. G8 OF 1986 rc =) Es = POX, NEAVES AND BURCHETT Jd. S JUNE 1986 SYDNEY tron case and (a), IN THE FEDERAL COUPT OF AUSTRALIA )} } ) NEW SOUTH WALES DISTPICT REGISTRY ) No.G8 of 1986 ) GENERAL DIVISTON ) . ON APPEAL from a single judge ". or the Federal Court of Australia - BETWEEN : PUSHPARANY SINNATHAMBY, STELLA PUSHPARANEE SIMEON, GRATIA ANTONOTE DOMINIC, SUNTHAPALINGHAM SELLATHUPRAI, and ROSEMALAR MANUELPILLAL Appeliants AND: MINISTER FOP IMMIGRATION AND Respondent MINUTE OF ORDER JUDGES MAKING OPDER: FOX, NEAVES AND BURCHEIT dd. DATE OF OPDER: 5 JUNE 1986 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeals be dismissed. ' 2. The appellants pay the respondent's casts of the appeals. Nate: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. TH OPHE TiPePalL TOVET OF ADSTPaLTA ) ) DEW TATA WALES TISTCTICT PEGTETPY ) Wa G2 of 1986 i CENEPAL CIVISicty ' a single judge E SIME DN, AKTONCTE DOMINIC, SUUTHSPALINGRZM SELLATHIFAT a and POSEMEALAF MANWJELP ILLS RRAIT CINNVATHSMEY ' tprellants AND: MINISTER ToD IMMIGPATICN ann ETHIC SFFATRS respondent CORAM, FOX, NEAVES AND BUPCHETT JT DATE: 5 June 1986 FERSONS POR JUDGMENT ccurse taken by the learned iudge (Morling 7.1), IT will ss one only because the others are so far ae relevant in the that ther will stard cr fall gi 4" there ig the one file number. The particular application. that if Posemalar Manueipillai, was made under the EAministrative for review of a decision to make a deportation order which was made against her under s.1@ of the Maaration Act 1965 ("the act") on La Decemher 1°85, The peamaryv aprlication was based on paraacarchs ar,(4. and fe) of the Tudicral Review Act. deals with improper ef power. and is elaborated bv 6.572) to auneclude narticular aspects relied upon helow. namely the taking inte account of irrelevant considerations (para.faiof $.502%) and the failure to fake anto account relevant meneiderations '/para.(b) of ¢.5(2)1, The scope cf these latter Mackeliar (1981) 78 A.L.R. 3623, at pp.?74-9; br Fox J. in Gurleven 7. Minister fer Immisratian and Ethnic iftfairs vanreported, 24 February 1954. Full Federal Court: and by Bowen ci in Peko-Walisend Did. 7. Minister for Aboriginal Affairs 1985) SO A,LLR, Sl. Before us, there was no submission based on BS D¢b), but 1t was gtated that eparas.fa)./f',lq) and (h) of 14°° astensibly as a transit passenger on her wav to Fiji. fhe was granted a temporary entry permit valid until 26 October She invited by Immigration officials whom she went to 342 on 25 Setober fa Ferdav) ts return ta sé¢e them on 28 October fa Mandav). She did this, but after further discuzsion., she was Taken into custody. The central factual consideration. so far as the applicant 15 concerned, 18 that she 1s a Tamil and her home 1s in Sri Lanka, where for some time, itis alleaed, the Tamil Minority, of a section of it, has heen subiect to 1li-t.-atment, often of a phvsical nature, at the hands of the Sinchalese, who ar2 in the majority The applicants all fear that thev may ne made to suffer more because thev have fled the country or at least attempted tc remain away fram it. The particular arcplicant fears her positicn mav be =ven worse because her brother escaved to Ween Gecwmary while conditionally released from Getenticn, The applicant had been in Singapore since December 1981. where she workec. She was 24 1n 1981. and although she had heen trarned aS a nurse. she apparently worked in Singapore. 1n some wa ee ather capacitv, ina clothing factorv. When she left. her permission to remain had expired, or was about to. Before she 37) left she was toid bv a travel agent tn Singapore that some ecuntries, such as the United States of America, Canada and Australia would not issue visas to Sri Lankans. She did not seex permission to enter or ~stav in Australia before leaving Singapore, but was advised that one course might be to fake a 'T eae D fog to Fiii., and on arrival in Australia seek a tempocarv ra ic entry permit, which would enable appropriate application to he made for her to stav. she then havirgd the apparent advantage of Tf the applicant's woret fears are justified, her "a fositzron must evoke considerable svmpathv, The role of this - Tourt re not hewever one of testing the reality of her fears or aft pravidin assistance. ft 18 one sf seeing that the relevant law ana leqal procedures in this country have been observed. When the applicant saw the officials on 25 October she e enquired about obtaining permanent resident status as a refucee ar atherwise. On 28 October she was interviewed by an officer of the Department. anda record of interview was made, which she sioned. It 1s there said that she approached the officials on 25 to inquire about refugee status. There 1s a statement in the record as follows: "s orarvy residence visa/permit for Sincapcre WAS ire and she was expected to depart fram states that she was advised by a travel re that Canada, USA ané Australia would s te Sri Lankans. States that her ® came to Australia and she anlv said na ta Fiqi to cain entry to Australia" By ut rt The applicant applied both for refugee status. and for resident status under s.6A oF the Act. The application refugee status was made on 1 November 1985, was considered bv the Determination of Pefucee Status (D.0.R.S.) Committee oan 15 wo - -- " rs iDD nN + v Q1 By rm" nopu a Ss un al ja Wovrember 1285. and its recommendation fo he the Minister's Deleqate on 135 November 1985. The place of decision-making in refuges status applications was dealt with in A,L.R. 609, but it 1s nat necessary to pursue That matter in the present case. The application for resident status was refused on 3 December 1995. The letter conveving the refusal of resident status. sioned for tne Reqional Director, says, in part: "There was no evidence before me <c suagest that vou Fulfalied C6A(1)(ad, E6AC1I(E) or SHALL Cc) 9 Migration Act as outlined above. Furthermore vour entry unto Australia as a V1s1tO¥y On a Temporary entry permit without permission ta work wreclu Tonsideratian under S6A(1)(d). I therefor vwouy case under the law and policy relating resident status under SEA(1)fe>. In vour application vou put forwara as crounds for consideration the claim that as a Tamil, vou would suffer oaross and discriminatory denial of fundamental freedom and basic numan rights, 1f vou returned to Sri Lanka. You also stated that in view of the circumstances of vour brather's departure for West Sermanvy ard vour residence abroad. vou might be arrested or killed. mM A te} > After carefully considering vour clazms. I am unabie to canclude that vour grounds constitute strona humanitarian arounds within the meaning of fection A(AY(1)(2e), On the material presented by vou, I am not satisfied that vou would suffer gross and discriminatory denial of fundamental freedom and basic human richts on our return ta Sri Lanka. greater than the hardship and adversity experienced by the generality of Tamiis in Sri Lanka. I also save consideration to whether the application of narmal policy was appropriate ain vour particular case but I decided that there were no features of the case which andicated that the application of normal policy would be unreasonable or uniust. I therefore decided to retect vour application, _ As vour temporary entry permit has now axpired the Enforcement Section of this Department will he jTantacting vou." as affecting both applications. Amnesty International had sent toa the Department on 28 October i385 a number of ocuments relating to the current treatment of Tamils in Sri Lanka. An application for a statement under s.135 of the Tudicial Pevirew Act relative ta deportation was made on 16 Decerber 1965 and was issued on 19 January 1986. The statement was not in ewidence before the learned iudae and we refused leave for in to be received before us. as appears from what I have ¢aid the deportation order was made after the application for resident status, and after the application for a refucee refused, and the applicant was at the ti prohibited non-citizen The decision challenwed in this for deportation, and permanent resident status are not challence. (An application was made applicati fo include the earlier two d had heen considered and me of the order still a toO.060amend the) original ecisions. As this would ETS he alse had ortions available to him. as fer of ai further entry permit. which he had ta consider as mossibilitie mM zk 1s submitted that there was a failure ta accore the appellant natural justice in that the decis-on as to her refuaee formation obtained by the 0.0.8.8. Committes which was not wade known tc her. The Gecision of the Teleqate Following the repert of the D.O.F.S. Committes has ne however been the subject of challence, and matters relevant to denial of natural iustice before 1t have not been explored. e appellanzt also relies opon the fact that the Department ctansidered her to have entered the erountrvy br a "subterfume" in arriving as &@ Translt passenger, She clazmns that the Department denied her natural awustice in not informing her disentitling her to a)nm c = wm ct a a] nQ Dp that this would be regarded as ac favourable consideration. This was an evaluation or a descrirtion af some of the facts made known bv the apvellant Reliance was placed on the decision of the HYidh Court in The effect of Kiga 22 that «hile the Department is obliged to accord natural justice when actznag under s 18 cf the Act. the extent of the requirement is conditioned bv the particular facts in each case. There is. for example, no rereral resuirement that an applicant be anfocmed of the sources of all he infcrmation which the Department receives concerning his ar wer case, or the content af that information, a&A¢: a general rule, winen some consideration personai to the applicant is to he taken into account against him or her the rules af natural -ustice require that the applicant be aqiven a chance toa comment ar eantradict (see Kioa, per Mason J. at 0.348). The ayideline is fairness: in general the party should ha dealing inan appropriate wav with matters with which he tan reasonably be expected to be able to deal. and which might assist his or her case. chance Se aiven to comment had coms from 4a scurce other than the aoplicant, In the present case. as his Honour found. the "DO materlal which was prejudicial to the appellant had been provided pellan=t herself, In the ciscumstances, I corsider that liant a 3) mw oy the decision-maker was not reourtred ta sive th sh3) chance to comment on the wiew that he had taken of ut: to do so would amount to a general requirement that a decision-maker make known in each case his view or evaluation of the material that an applicant puts focward (see Kioa per Brennan J. at p 280). His thought processes, 1f not imreasonablv based on evidence, or other material. are a matter for him. T agree with hie Honour that there was no denial of natural iustice in this respect. The allegation of "subterfuge" is also relied on ag entitlina the appellant to relief under s.S(1)(h), in that the his viaw that there hed been 'B ran Oo i) decision-maker reli cr oD hat the appellant had been posing as a passenger 2n transit to Fiji only ta gain entrv to Australia. and that, it is said, was a fact which dad not evrist 'see s,.,5(3){b)). chis submrissian dces nat appear to have heen made to his Honour. As I have saic. tubterfude is an abstract noun used to describe conduct. I must say, although I may not have used the same word myseif, that tt accords fairly closely with the facts. wnich conveyed the Department's rejection of the application for refugee status. 1t was stated that "The Denartment has also 10. determined that there are no other arounds on which vour continued stav in Australia can be apprsaved", His Honouc held a prejudament because the letter did ma more than reflect a view of the facts takén at + tf a iy ct ff ct a Q D aa 'q either ain the decision to refuse resident status, cr in the qecisicn to deport. Torespectfully saqree with his Honour's The deleqate who decided on deportation had before hima cace summarv, part of which is set out: "SUMMZERY OF POLICY ON DEPOrTATION OF PROHIPITED NON-CITIZENS It 15 im the public interest to ensure that persons abide by sormal immigration procedures. The Government's policy in celatior ta izllegqal migrants was cutlined ina statement Tabled an Parliament on 17 October 1995. That policy stated that people who are in Australia illegally will not readily he aiven permanent resicence while. thev cemain in Australia. Their breaches of irmiaration law and requirements will weigh heavilv against 'chem. Fersons who become prehibited non-citizens shou 1d therefore expect to bear the full weight of the la and tact the prapect of deportation, ASSESSMENT Ms Manuelpillal as a prohibited non-citizen. She has committed an offence in hecoming a rohibited non-citizen. There are an foot no applications for regularisation of her status. \lthough 1t remains pessible for her status to be regqularised (by grant of a further TEP) bearing in mind the policy as it stands and king inte account the circumstances of Ms Manuelpilla: as related above, vou may decide to order her deportation." tt The appellarts point ta thas extract ta show that t e qel iy] gate tailed to take into account a relevant consideration by = = iling ta consider the consequences to Miss Manuelpillai. a individually, 1f she were deported (s.5(2)(a)), and aiso that he applied policy without reqard to the merits of the case . (s.5(2)1f)). * As ta the matter relating to s.5(2)(a), it seems to me that there is no avidence which shows that his Henour was in error in vevyecting this contenticn. Indeed, there if a handwritten minute attached to the case summary outlining the Syrficulties which would be faceé by the appellant in seeking refugee status elsewhere were she to be deported. Another c minute, alsa attached. cutlines the perscnal circumstances of the consequences to the appellant. If it is said that the deleaate should have made incependent enguiries I do not think any failure To do this appears from the evidence, but in any event this could not in this case be a ground for upsetting his deciszon. * The challenge referred to,relating to the application af - policy, apoears not to have been arqued before his Honour. In anv event, if cannot succeed. True it is that the delecate made his . cecision on the basis that the appellant was ai prohibited - non-citizen, whose applications for refugee status, and for re] iw cagrachs 5/2 fa: and (4° wi re) mM cific argument was addressed to ecneiter the THLE sero. am of the opinion cvhat the REE e BP t : i ™ Ths 3 a - ~~ Ir aoim | Neasors for Tudguonmy hese Aol Mas Koso? , - — . b u w@ o Qa © ch IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 8 of 1986 ) ) GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF' AUSTRALIA BETWEEN : PUSHPARANY SINNATHAMBY , STELLA PUSHPARANEE SIMEON, GRATTA ANTONOTE DOMINIC, SUNTHARALINGHAM SELLATHURAL, and ROSEMALAR MANUELPILLAI Appellants AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: Fox, Neaves and Burchett Ju. DATE: 5 June 1986 REASONS FOR JUDGMENT Neaves Jd. Although there are five appeals before the Court, it 1s convenient to deal first with the appeal by Rosemalar Manuelpillai. Rosemalar Manuelpillai ("the appellant") has appealed from a judgment of the Court constituted by a single Judge J (Morling J.) dismissing her application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act) in respect of a deportation order made against her on 13 December 1985. The appellant was born in Sri Lanka in 1957. She is of Tamil extraction, a minority community in Sri Lanka. She travelled to Singapore in 1981 where she secured work as a sewing machine operator in a clothing factory. She was directed to leave Singapore before the expiry of her work permit and complied with that requirement by departing from Singapore upon an aircraft bound for Australia. She had an airline ticket showing her destination as Fiji. The appellant arrived in Australia (Sydney airport) on, Wednesday, 23 October 1985 and, on the basis that she was in transit to Fiji, was granted a temporary entry permit valid until 10.30 a.m. on Saturday, 26 October 1985 and endorsed "Employment Prohibited". On the morning of Thursday, 24 October 1985, the appellant sought and obtained an interview with Mr David Begg of Amnesty International, who arranged for her to attend the offices of the Regional Director of the Department of Immigration and Ethnic Affairs on Friday, 25 October 1985 where she was interviewed. She enquired about remaining in Australia, claiming to be afraid to return to Sri Lanka. She was advised to return to the office on the following Monday, 28 October 1985, When she returned on that date she was again interviewed. Shortly after the interview she was informed that she was under arrest because she was in Australia illegally. Thereafter she was detained at the Villawood Detention Centre. At the interview on 28 October 1985 the appellant gave the interviewing officer a frank account of the circumstances in which she came to Australia. A record of the interview was prepared and was signed by the appellant. She said that she had not wished to return from Singapore to Sri Lanka because, as a Tamil, she would face persecution there. She said that she had decided to attempt entry to Australia when she was informed by the Singapore Government that her work permit would not be extended. The record of interview records the following: "States temporary residence visa/permit for Singapore was due to expire and she was expected to depart from Singapore. She states that she was advised by a travel agent in Singapore that Canada, U.S.A. and Australia would not issue visas to Sri Lankans. States that her intention was to come to Australia and she only said that she was going to Fiji to gain entry to Australia." She also said that her passport and air ticket to Fiji had been stolen on the night of 23 October 1985 from the hotel where she was staying. She had made no application for migrant entry to Australia while she was in Singapore. On 29 October 1985 the appellant was again interviewed, with the assistance of an interpreter, at the offices of the Department. Notes of that interview were also made. On 1 November 1985 the appellant applied for refugee status in Australia. The application was supported by information as to her personal circumstances and by information supplied by Amnesty International as to the situation of the Tamil community in Sri Lanka. The application was considered by the Determination of Refugee Status (DORS) Committee on 15 November 1985 when it was recommended that the application be rejected. The recommendation was endorsed by a delegate of the Minister for Immigration and Ethnic Affairs on 19 November 1985 and on that date a letter was addressed to the appellant unforming her of the outcome. The letter contained the following paragraphs: "The DORS Committee unanimously recommended against the grant of refugee status. This judgement was arrived at following consideration of detailed advice received from the several sources of information available to the Committee concerning both the general situation prevailing in Sri Lanka at that time and your known particular circumstances in Sri Lanka as they related to your claim for Refugee Status. The Minister's delegate has endorsed the Committee''s recommendation and has decided that your application for refugee status in Australia must be refused. The Department has also determined that there are no other grounds on which your continued stay in Australia can be approved." By an application dated 25 November 1985 the appellant applied for resident status in Australia on the ground that there were strong compassionate or humanitarian grounds for the grant of an entry permit (see par.6A(1l)(e) of the Migration Act 1958 (Cth}). No formal application for the grant of a further temporary entry permit was made. The application for resident status was rejected on 3 December 1985 and a letter in the following terms was sent to the appellant on that date: "I refer to your application for grant of resident status. I must inform you, that after giving your case careful consideration, I, the Acting Director, Immigration Branch, an authorised officer under S6A of the Migration Act 1958, have decided to reject your application. Under present law and policy a change of status to resident may be granted in exceptional cases but generally only to people who can demonstrate a marked change in their circumstances since their arrival in Australia. Section 6A(1) of the Migration Act prescribes restricted categories of people who may be considered for the grant of resident status. This means it is not possible in law to grant resident status to a person after their arrival in Australia unless one or more of the following conditions is fulfilled in respect of that person, namely: (a) he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia; (b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit; (c) he ais the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Regugees that was done at New York on 31 January 1967; (ad) he is the holder of a temporary entry permit which is in force, is authorised to work in Australia and is not a prescribed non-citizen; or (e) he 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. There was no evidence before me to suggest that you fulfilled S6A(1)(a), S6A(1)(b) or SEA(1)(c) of the Migration Act as outlined above. Furthermore your entry unto Australia as a visitor on a temporary entry permit without permission to work precludes you from consideration under S6A(1)(d). I therefore considered your case under the law and policy relating to grant of resident status under S6A(1)(e). In your application you put forward as grounds for consideration the claim that as a Tamil, you would suffer gross and discriminatory denial of fundamental freedom and basic human rights, if you returned to Sri Lanka. You also stated that in view of the circumstances of your brother's departure for West Germany and your residence abroad, you might be arrested or killed. After carefully considering your claims, I am unable to conclude that your grounds constitute strong humanitarian grounds within the meaning of Section 6(A)(1)(e). On the material presented by you, I am not satisfied that you would suffer gross and discriminatory denial of fundamental freedom and basic human rights on your return to Sri Lanka, greater than the hardship and adversity experienced by the generality of Tamils in Sri Lanka. I also gave consideration to whether the application of normal policy was appropriate in your particular case but I decided that there were no features of the case which indicated that the application of normal policy would be unreasonable or unjust. I therefore decided to reject your application. As your temporary entry permit has now expired the Enforcement Section of this Department will be contacting you." A document entitled "Deportation Case Summary" dated 13. December 1985 was prepared within the Department of Immigration and Ethnic Affairs recommending that a deportation order be made in respect of the applicant. To that document were annexed documentary material relating to the appellant aad her circumstances and copies of relevant correspondence. After setting out the appellant's personal circumstances, referring to the circumstance that the appellant could apply for a further temporary entry permit (TEP) but stating that "such application is unlikely to be approved" as the conditions set out in s.6A of the Act were not fulfilled, and referring to representations made on the appellant's behalf, the document contains the following paragraphs under the sub-heading "Summary of Policy on Deportation of Prohibited Non-Citizens": "Tt is in the public interest to ensure that persons abide by normal immigration procedures. The Government's policy in relation to illegal migrants was outlined in a statement tabled in Parliament on 17 October 1985. That policy stated that people who are in Australia ullegally will not readily be given permanent residence while they remain in Australia. Their breaches of immigration law and requirements will weigh heavily against them. Persons who become prohibited non-citizens should therefore expect to bear the full weight of the law and face the prospect of deportation." Then follows the following assessment: "Ms Manuelpillai is a prohibited non-citizen. She has committed an offence in becoming a prohibited non-citizen. There are on foot no applications for regularisation of her status. Although 1t remains possible for her status to be regularised (by grant of a further TEP) bearing in mind the policy as it stands and taking into account the circumstances of Ms Manuelpillai as related above, you may decide to order her deportation." A document accompanying the deportation case summary, prepared by an officer of the Department, drew to the attention of the delegate of the Minister the need to consider the grant to the appellant of a further temporary entry permit. The dacument contained the following: "The circumstances of the applicant's entry to Australia are relevant. All of the applicants through a deliberate subterfuge sought to gain entry to Australia by circumventing normal immigration control. You are entitled to decide from this that they thereby disentitled themselves to any concessions concerning temporary stay 1f their claims to refugee status were found to he ill founded." On the same day, 13 December 1985, the recommendation was approved by a delegate of the Minister and the deportation order was signed. The delegate of the Minister addressed a letter dated 13 December 1985 to the appellant''s solicitor reading as follows: "I am writing in reply to your representations concerning your client Ms Manuelpillai who 1s seeking to remain in Australia. The legal and policy requirements for the grant of resident status in Australia after entry into Australia, are detailed in the attached paper. Ms Manuelpillai's application for refugee status in Australia was considered by the Determination of Refugee Status (DORS) Committee on 15 November 1985. The Committee recommended that her application be rejected and the Minister's delegate endorsed this recommendation on 19 November 1985. Ms Manuelpillai's application for resident status under Section 6A(1)(e) of the Migration Act, 1958, was rejected on 3 December 1985. I have no evidence before me to suggest that Ms Manuelpillai fulfils Section 6A(1)(a); (b) or (da) of the Migration Act, 1958. I have given consideration to your request that Ms Manuelpillai be granted further temporary stay in Australia. There is, at present, no special policy relating to the continued temporary stay of Sri Lankan citizens in Australia. Accordingly, in the light of normal policy I am unable to approve the issue of a further temporary entry permit to Ms Manuelpillai. I gave careful consideration to Ms Manuelpillai's case, Having regard to the particular aspects of that case as against the background of Australia's immigration law and policy, I thought it appropriate-"Vhat your client not be allowed to remain ain Australia and that her departure be secured by deportation. Consequently I have this day, signed a deportation order against Ms Manuelpillai." The learned primary judge rejected a submission put on behalf of the appellant that a breach of the rules of natural justice occurred in connection with the making of the decision to deport the appellant. After referring to the decision of 10. the High Court in Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321, setting out a passage from the judgment of Mason J., his Honour said: "Tf the assumption be made in favour of the applicant that the Minister was required to observe the rules of natural justice when deciding whether or not to deport her there is nothing in the evidence to support a claim that the Delegate failed to observe those rules. This 15 not a case (as was Kioa's Case) in which an allegation of impropriety was taken into account by the Minister without the applicant being afforded the opportunity of answering it. I have carefully perused all the material which was before the Delegate of the Minister at the time the deportation order was signed. There is nothing in that material which, consistently with the above dictum of Mason J., should have been referred to the applicant prior to the making of the decision to deport her." After setting out ea further passage from the judgment of Mason J., his Honour concluded that the appellant was given an adequate opportunity of placing before the delegate any mater1al that she thought might support her application. Huis Honour added: "This opportunity was accepted, and due consideration was given to the representations made on her behalf, and on her own statements in support of her application." In submitting that his Honour had fallen into error in concluding that there had been no failure on the part of the delegate of the Minister to observe the principles of natural justice, counsel for the appellant relied upon the letter dated ll. 19 November 1985, the text of which so far as relevant is set out above, informing the appellant that her application for the J grant of refugee status had been refused. The particular part of that letter relied upon was the statement that the DORS Committee had formulated its recommendation following consideration - "of detailed advice received from the several sources of information available to the Committee concerning both the general situation prevailing in Sri Lanka at that time and your known particular circumstances in Sri Lanka as they related to your claim for Refugee Status". It was submitted that that statement was to be read as meaning that the DORS Committee had obtained and taken into account information from several sources concerning the appellant's particular circumstances. This indicated, so it was said, that matters directly relevant to the appellant had been considered of which she had not been made aware and that she had thus been deprived of an opportunity to make submissions in relation to them. There are, I think, at least two answers to this submission. In the first place it has not been shown that the DORS Committee had before it any information personal to the appellant which had been derived from a source other than the appellant. The information (if any) remains unidentified and the statement ain the letter dated 19 November 1985 falls far short of establishing a foundation for the submission. In the 12. second place, there is nothing to suggest that there was any material before the delegate of the Minister when considering whether a deportation order should be made in respect of the appellant indicating that the DORS Committee had information personal to the appellant of which she should be given notice so that she might answer 1t. There 1s certainly no basis for concluding that the delegate relied upon any such information. In my opinion it has not been demonstrated that the primary judge erred in reaching his conclusion on this aspect of the matter. Counsel for the appellant then referred to the statement contained in one of the documents accompanying the deportation case summary that the appellant had "through a deliberate subterfuge" sought to gain entry to Australia by circumventing normal immigration control and that she had thereby disentitled herself to any concessions concerning temporary stay in Australia if her claim to refugee status was found to be ill-founded. It was submitted that there had been a denial of natural justice in that the delegate of the Minister had failed to inform the appellant that she was regarded as having sought to gain entry into Australia by a subterfuge so that she might have an opportunity to rebut that interpretation of the material before the delegate. 13. In my opinion, this submission must be rejected. In so far as the delegate adopted the statement referred to, a matter as to which the evidence is not entirely clear, there is no suggestion that in doing so he relied upon any material other than the account which the appellant gave as to the circumstances surrounding her entry into Australia. It was a matter for the delegate tc evaluate the material placed before him and, as the whole of that material had its source in what the appellant had said, there was no obligation upon him to inform the appellant that that material might result in him forming a conclusion adverse to her. Counsel for the appellant also referred to the statement in the judgment of the primary judge that the appellant had informed an officer of the Department of Immigration and Ethnic Affairs that a travel agent in Singapore had advised her that 1t would be difficult to obtain a visa for entry into Australia and that she could gain entry "by posing as a passenger in transit to Fiji". It was submitted that the material before his Honour, in particular the record of the interview held on 28 October 1985, did not support the conclusion that the appellant had posed as a passenger in transit to Fiji. His Honour did not, in the passage referred to, make such a finding but was stating the effect of what the appellant had stated to the interviewing officer. The words used donot precisely accord with what 15 recorded in the signed record of interview but, in my opinion, they are to the 14. same effect. In any event the discrepancy provides no basis for reversing the judgment under appeal. Counsel for the appellant also argued that the primary judge was in error in rejecting an argument that the letter dated 19 November 1985 demonstrated that the Department of Immigration and Ethnic Affairs had pre-judged the subsequent application for resident status. There 1s, in my opinion, no substance in this argument which, in the result, was not strongly pressed. The primary judge also rejected a submission that the Gelegate of the Minister had failed to take into account as a relevant consideration the existing conditions being faced by the Taril comrunity in Sri Lanka and the specially difficult circumstances which the appellant would find herself in were she to be returned to that country. His Honour concluded that the evidence did not establish that the delegate failed to take into account the matters which the appellant claimed were relevant to be considered. In his Honour's view, all the material which was submitted on behalf of the appellant appeared to have been considered. Counsel for the appellant challenged this finding but, in my view, the challenge cannot be maintained. I find no support in the material for the submission put on behalf of the appellant that the delegate had taken the view that he was 15. bound to order the appellant's deportation merely because she Was a prohibited immigrant (cf. Minister for Immigration and Ethnic Affairs v. Tagle (1983) 46 A.L.R. 379; (1983) 48 A.L.R, 566). For these reasons TI am of opinion that the appeal should be dismissed with costs. As cthere are no features of the appeals in the other four cases distinguishing them in any material respect from the appeal by Rosemalar Manuelpillai, those appeals must also be dismissed with costs. I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr JusticeAssociate Dated: 5 June 1986. av Ti} THE ny EQERAL COE Tt Tt. Dis SINGLE TYOGE ~~ ee OV THE FEDEFAL COUPT OF SUSTRALTA BETWEZN: PUSHEAPANY STNMATHAMBY, STELLA PUSHPAPANEE SIMEON, SPATIA ANTONOTE DOMINIC, STINTHBE AL INGHAM SELLATHUPAL, and PASEMALAP MANVJELPILLAL an ary MINIETED FOP SMMIG AFPAIP Fespondeant PRSSONS FOP JUDGMEM d. It 16 not necessary to restate whicn have heen summarised, in respect of the aorellant Miss Manuelpililai, by the other members of the Court. T, rath them, am t-ntent ta areepf the davitacion of the partiss to dacids alt the appeals in agcordance with the decreion in Miss Manuelprillal's appeal, on the basis that the cases are so related that they should not he distindvurshed, Miss Manuelpillai entered Australia legally being granted on 22 October 1985 a temporary entry permit valid until 26 October 1985. The trial judge accepted thac on the morning cf the 24th she savy a Mr. Beag of Amnesty International who arranged her attendance, in order to make a claim of refugee status, at the office of the Regicnal Director of the Department of Immigcation and Ethnic Affairs on the 25th. She did then attend, at a time when her entry permit still had another day to run. Tne departmental summary records: "To aliow time for an assessment to be made of tneir claims (scil. Miss Manuelpillai's ' and the other appellants claims}, the group were instructec to report aqain to the Department on Monday 28 October 1985" (ie, a date after her entry permit would expire). She did as instructed, but on her return to the Department on the Monday she was arrested, and thersafter remained in custody, althougn her claim for refugee status vas not determined against her until 19 November. The Regional Director whe. as delegate of the Mznister, signed the deportation order, Cid so after receiving, and signing as approved by him, a Deportation Case Summary prepared in the department. As no reasons under s.13 er the Administrative Decisions (Judicial Peview) Act 1977 (""Tudicial Peview Act") for Cc he decision to sign the order had been received by the date of cr he hearing, this document was the fundamental document in the application. (See the cemarks of Deane J. in Sean Investments Pty. Ltd. v. Mackellar #1981} 38 A.L.R. 363 at 271). It sets out particulars of the appellant, of the circumstances of her arrival in Australia, of her application for refugee status and its ction, and of her interviews with officers of the department. ty e) m in t 'S oints out she could stil2 apply for a further temporary entry permit 'as, indeed, notwithstanding the terms of the "Assessment" muoted beiow, a letter sent by the Reqional Director upon the making of the Deportation Order indicates she had applied), but asserts approval would be "unlixely". It mentions there had been representations from an Australian Legal Aid afficer, ard 'then concludes as follows: "SUMMARY OF POLICY ON DEPORTATION OF PPOHTBITED NON-CITIGENS It 1s in the public interest to ensure that persons abide by normal nmmicgration procedures. The Government ¢ volicy in rélaticn to ill a statement ¢t October 1985, = migrants was sutlined in qa abled in Parliament on 17 That policy stated that people who are in Australia illegally will not readily be given permanent residence while they remain in Australia. Their breaches of immigration law and revurrements will weigh heavily against them. _, rsons tho become prohibited non-citizens ould therefore expect to besr the full ight of the lay and face the prospect of portation. ASSESSMENT : Ms Manuelpiila1 is a prohibited non-citiz She has comnitted "an offence in becoring a prchibited non-citizen. There are on foot no aprlicatzons for regularisation of her status. Although it a 4. remains possible status to be re 'by grant of a ¥ TEP) bearing in mind policy as it stands and taking into account the ciscurstances of Ms Manuelpillai as related above, you may decide to order her deportation. RECOMMEMDATT ON : If you accept the above assessment, 1t 1s reconuendsd that yeu sign the attached order Tor the deportation of - Rosemalar Manuelpillai." It will be observed that the concluding words make it clear the deportation order is specifically related to what appears under the heading "Assessment", and that the terms cf the assessment refer to the policy concerning people in Australia illegally, whose breaches of the law ars said to "weigh heavily = af a against chen", The assessment atself emphasises the point by agserting of the appellant: "She has committed an offence in beceming a prohibited non-citizen." Ta my mind such an assessment. in the circumstances of this appeal, brands the decision as an exercise of a discretionary power in accordance with a rule o¢ policy without regard ta thea merits of the particular case" (Judicial Peview Act, s.5(2)(F)). It vas also argued that there was a fallure to take a celevant consideration into account (s.5(2)(5)) ain an assessment which put such weight on the commission by the appellant of an offence by staying in Australia Leyond the expiry we uw of the permit, ve ct t oy F c th p i] o fie i n ee ification that tne offence should au oc be ta 1D a roy o J ch fCu na2asm j= cogate 1rection to stay and the immediate t arrest upon compliance with the cirection. T think thes2 wavs of putting the matter are oniy the two sides of the one coin. The clear fact as that the appellant had cemmitted no offence until she did so by cbheying a défartmental instruction. It 3s unthintakle that any person in her position would not have oheyea that ainstructian. To held the consequences of her Sort of London Authority; Ex parte Kenoech Limited £19197 1 E.B. 176; Britash Ouvrgqen Co. Ltd. wv. Board of Trade CIS713 A.C. 610; Legal Services Commission of New Seuth Wales v. Steohens £1981] 2 N.E.N.GL.P. 697; Howells ov. Nagrad Nominees Pty. Etd. °1982) 66 reat 194-5; Minzsrer for Immicration and Ethnic Affairs v. Tagle (1982?) 48 A.L.R. £66; and see ss.5(2)(f) mn Ido not think 10 18 any ansver to rerer ta the fact chav the appellant came to Australia intending to apply for refugee status. That does not demonstrate an intention to break the Jaw. Buc if tf is thought such an inference i) a 19) c rar jon ty ao a wa fp Bs the question -yhether 1t 2s to be dram ought to be determined by the delegate unembarrassad oy a wrong vaew of the efrect of the aarae Pp Q a] a7) wsm7 bh so nh an at cr by iB)Wy Ho tH iy Oo ry a" a H it oe ea oO tS aDm fe) io] wm w a 4q ia)7 bad Gg ', is yt of tne arpellant im the deczsicn to rejeart retuges 2m™n dearing the enxietance af leg been choem 2 tTempcrarr entyc Le ans qeneralico of Tamisde in Fry Yrananltayian applicant anteide Wis Dut Terman devs in ada T am discussing what in the about ra'ripg & Judgrent require ar applicant counter, though thousands of Ris ctempatsiots are "s te 7, rt tre w aq a Pe rS wt ti H unctioan). Iocannet canclude that the Minister or , if disabused of a wreng view of the effect in this case of the policy concerning 1liegal immigrants, sould Senzcr counsel for the agpellants also ny % Q ie ra) p. cl D ia] La D br iy jon been a denial of natural justi a e. He relied on the foiloving passage in the Deporvtaticn Case Surmary: mn Manuelpiliai daciszed to attempt entry to istralia when she was advised by the try Wei C S2ngapors Government that her work permit would not be extended. She said that a Trave. Agent in Singapore had advised her that wt vould be difficult to obtain a visa for Australia and that she could gain entry bY posing as & passenger in 'transit to Fiji." The contention was that this, and other notes in the ecision fon t al Pn) ™ t = i) a ct fu a i [ol m is wm m y o a oO fu ct ha He fy) ct wo aia Oo pb o ja B mn a S a BEcr YT inh oO s interpretation of Miss Manuelpillai's cosneuct as involving entry to Australia by subterfuge. It was conceded the in tation, upon Which this construction was put, came from Miss Manuelpillai herself. But at was said natural justice given an oppertunity to explain. Given the circumstances oi an aliicn responding to departmental forms and requirements and to muestions put to her, if the issue were in fact a kay issue I think the proposition would have some force. Tt 1s net clear to ta¢ me Ehat Miss Manueloillai had purported to present the full story of the circumstances of her departure from Singapore and arrival ts passenger to Fiji which, it 18 stated in signatory to a United Nataons csanvention of cetugees. It may be ner irtention was to apply, in the firs and, if refused, to continue her journey to fiji, and apply t place, in Australia whilst in 'transit, there. Also her departure from Singacore may have been vithout any ceal alternative. In Kioa v. Minister for Irmioration and Ethnic Affairs (1285) 6 -L.R. 321, the Hign Court made it clear that not every deportation order 2s made in circumstances calling for 'he application of the principles of natura justice. However, at p.348 Mason J. said: "But at may be otherwise where the reasons for che making cf the order travel bevond the Fact that the erson concerned is a e fa) prohibited immigrant and thos e reasons are personal to him, as, for exampl e, where they po - e reinte TO his canduct, health, or associations. And aif the order is made in consequence of a refusal to grant a further entry permit to him, the reascns on which chat vrerusal is based may require that as 4 matter of fairness the person afrected should have the chance of responding to them." Although his Honour goes on at the same page to instance the case where "the decisicn-maker intends to reject the application by reference to some consideration personal to the applicant on the das2¢ cf information cbtainad from another source Which nas not been dealt with by the app in his appiication", I de nok understand him to limit the principle he — es ' wp ' ry ct 1 3 hal Mason ad. states the wercepositien to whi che C ' i acgumernt locks for suoport: "(Pyecent decisians 1llustrate the inportance thich the law attaches to the need to bring to & person's attention the critical issue or factor cen which the administiative decision 1s likely to turn so that he may have an opportunity of dealing with it." Math the authorities he cites for that proposition should he cenparec the Caredian authorities cited by Gibbs C.J. in Public Eervice Board of N.8.W. ov. Osmond (1986) 63 A.L-R. 559 at 555 for But T do not think. ain the praesent case, that the nere fact that M2zss Manuelpillal, on her arrival in Sydney, was viewed as posing as a passenger in transit to Fiji, could have been the critical issue or factor on which the decision was likely to turn. No reasonable verson could have regarded a legal entry as tarnished significantly by the mere fact 'thar a verson in Miss Manuesipillai''s posizticn had resorted to a subterfuge to obtain fu nearing. What made the suggesticn of subterfuge dangerous for Mies Manuelpillai's hores was 1ts assoc fo ow be a fa) x Pe ct om i be Pa G fu rt an tT% x Pape Since I jaw to take the view that ill Miss Manuelpillai, in the cl think the was "the critical issue or decision (was) likely to tu attenticn drawn to ait notification oF rejyectian resident status, dated as yeason £ considerations, which have 1 jilegality in insupporctvasle, also require subrissions £9 answering subterruge in order to commit appeal. and, other arpeals also. do not think suggested subterfuge epinion, she is would have been most 10. the decision-maxer was enliitled ain egaiity was a serious factcr against reumstances of this case, I io not raised an argument does my opinion) the decision-maker was factor on which the administrative rn", and ske should have nad her This 1S especially sc since the of her aprelicatacn for srant of recently as 3 Decenber 1985, had ' elated to her conduct. The same ed me to tke cenclusion that the the Deportation Case Summary is the conclusion that without notice an inappropriate an illegality. I would allow miss Manuelpillaz's th the agreerent of the partie: , tne ' ¥ ra] Pow oer Fh ~ ct bt in al 1p it 'oT / ok ee ne IN_THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No.G8 of 1986 wee wr GENERAL DIVISTON ON APPEAL from a single judge of the Federal Court of Australia BETWEEN : PUSHPARANY STNNATHAMBY . ' STELLA PUSHPARANEE STMEON, GRATTA ANTONOTE DOMINIC, SUNTHARALINGHAM SELLATHURAT, and ROSEMALAR MANUELPILLAIL Appellants AND: MINISTER FOR TMMIGRATION AND ETHNIC AFFAIRS Respondent CORRIGENDA Amendment to the Reasons for Judgment of Fox J. delivered 5 June 1986: Page 10 line 22 for "fact" insert "face". Page 10 line 23 for "propect" insert "prospect". P Heirs | Acting Associate to Mr. Justice Fox Date: 24 June 1986