CATCHWORDS ADMINISTRATIVE LAW ~ Deportation - Natural justice - refusal to accord applicant status of refugee ~ whether adequate opportunity given to applicant to submit information. Administrative Decisions (Judicial Review) Act, 1977 Kioa v. Minister for Immigration and Ethnic Affairs (1985) A.L.R. 321 R. v. Thames Magistrates' Court; Ex parte Polemis C1974] 1 W.L.R. SPENDER J. BRISBANE 3 SEPTEMBER, 1986 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QLD. G123 of 1986 wee ww BETWEEN: GHOLAMREZA DEZFOULI Applicant AND: THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent DATE JUDGMENT DELIVERED: 3 SEPTEMBER 1986 COUNSEL: for the applicant Mr. L. Boccabella instructed by Mr. S. Masinello of Given & Masinello for the respondent Mr. D. O'Gorman and Ms. Treydt of Australian Government Solicitor. P, APPLEGARTH ASSOCIATE TO SPENDER J. IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) QED. G123 of 1986 ) GENERAL DIVISION ) BETWEEN : GHOLAMREZA DEZFOULI Applicant THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent MINUTES OF ORDER JUDGE MAKING ORDER: SPENDER J. DATE OF ORDER: 3 SEPTEMBER, 1986 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The operation of the decision of the delegate of the Minister to deport the applicant be suspended until the determination of these proceedings or further earlier order. N The applicant be released from detention on condition that:- (a) at 9.30 a.m. every day, Monday to Friday, he report to the Officer-in-Charge, Department of Immigration & Ethnic Affairs, Level 1, 167 Eagle Street, Brisbane, and that on each occasion he sign the attendance register; (b) he reside at Flat 13, 10 Brighton Road, West End, Brisbane, until further order. Ww The cost of the applicant be his costs in the principal proceedings. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QLD. G123 of 1986 ee ee BETWEEN : GHOLAMREZA DEZFOULIL Applicant AND: THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent SPENDER J. BRISBANE 3 SEPTEMBER, 1986. EXTEMPORE REASONS FOR JUDGMENT This is the resumed hearing of an application, pursuant to s.15 of the Administrative Decisions (Judicial Review) Act 1977, to suspend a decision made by the delegate to the Minister to deport the applicant. The decision to deport Mr. Dezfouli is accepted by the Department as being conditional upon the acceptance by the Minister for Immigration and Ethnic Affairs of a recommendation by the Determination of Refugee Status Committee, that Mr. Dezfouli not be accorded the status of refugee. In a sense, therefore, the decision to deport depends on the decision by the Minister not to grant to Mr. Dezfouli the status of refugee. Mr. Dezfouli is an TIranian seaman. He jumped ship from M.V. "Iran Ghaffari" and made application in Brisbane on 15 August 1986 that he be accorded refugee status. On this present application, the applicant must show that there is a serious question to be tried. Implicit in the submissions made to me is that, if that question is satisfied by the applicant, the balance of convenience in this case favours the applicant. Of the number of grounds in the application, I need only consider whether a serious question exists to be tried, and that is whether, in the events that occurred, Mr. Dezfouli was denied natural justice. On Thursday, 14 August 1986, the applicant's brother, Manoochehr Dezfouli, who 1s also Iranian and who was granted refugee status some time earlier, made contact with Mr. Ross John Daniels, a lecturer in social welfare at the Brisbane College of Advanced Education, who is the Vice-President of Amnesty International Australia, and who gave advice to the applicant. That afternoon, Mr. Daniels made arrangements for an appointment between Mr. Dezfouli and the Department at 9.30 a.m. on Friday, 15 August 1986. On that initial contact, Mr. Daniels, an interpreter, and Mr. Manson, an enforcement officer in the Department, were present. Mr. Manson conversed with the applicant and, after inquiry, told Mr. Daniels that the ship's captain had not officially reported Mr. Dezfouli as missing as a deserter, with the consequence that the applicant was not then a prohibited non-citizen. After attempts by Mr. Manson to persuade Mr. Dezfouli to return to his ship, which attempts were unsuccessful, an interview occurred with formal questions being asked concerning Mr. Dezfouli's status. On that day, in addition to the application for refugee status which was completed by Mr. Dezfouli, a questionnaire in support of that application was made and an interview was conducted between Amy Barkworth, a migration officer with the Department, and Mr. Dezfouli. Mr. Daniels left before the interview had commenced, having been told that Mr. Dezfouli would not be taken into custody. In the interview, Ms. Barkworth said to Mr. Dezfouli:- "Tam an officer of the Department of Immigration and Ethnic Affairs. The purpose of this interview Mr. Dezfouli is to obtain from you information which will be placed before the Determination of Refugee Status Committee, which will consider all relevant facts and make a recommendation to the Minister for Immigration and Ethnic Affairs. He will decide whether you may be accorded refugee status and any appeal against the decision must be directed to him. It 15 important therefore, that you provide me with all the details which you consider relevant to your application." She then conducted a quite lengthy interview, towards the end of which she said: "Do you have any other information which you wish to provide or any other details which would support your application for refugee status? To which Mr. Dezfouli replied: "At present, I don't have anything in mind but if I remember anything or I think of some more I will inform you." And, at the end of the interview again Mr. Dezfouli was asked:- "l.. Can you think of anything else at this time that you wish to put forward in relation to your application?" to which the answer is recorded: "He says at the moment not more than I have said." On Thursday, 21 August, a further conversation (which was recorded in handwriting) occurred between Ms. Barkworth and the applicant, at the end of which he said:- "With all the information which I gave you and the basis of the knowledge which I have regarding the situation in Iran, if I go back, I won't live, that means I will be executed." Mr. Manson formally advised the applicant, through the interpreter at the Department, that he was a prohibited non-citizen and arrested him pursuant to s.38 of the Migration Act, 1958. Mr. Dezfouli was escorted to his home to collect a statement in Arabic, which he had referred to during the course of that interview, and later on the 21st he signed a statutory declaration in which he acknowledged that the interview of that day contained all the additional information which he wanted considered with his claim for refugee status, and concluded by stating, "I have no further information to add." Mr. Daniels deposes that at 2.20 p.m. on Thursday, 21 August 1986, he learned that a second interview with Mr. Dezfouli had taken place. He was told by the Department that the applicant would be flown to Melbourne at 4 p.m. and then returned to his ship. Mr. Daniels then contacted a solicitor, Mr. Sergio Masinello, to act on the applicant's behalf as Mr. Dezfoul1 had by then been detained. The present application is primarily concerned with events subsequent to that time. Mr. Masinello says that at about 6 p.m. on Thursday, 21 August 1986, he went to the watchhouse and saw Mr. Dezfouli, but discovered that he could not obtain useful instructions without an interpreter. He then made contact with Counsel and, through him, with the Department and learned that the Department required further submissions by 9 a.m. on Friday, 22 August 1986. He was not able to secure the services of an interpreter until 8.30 p.m., and then in company with the interpreter and Mr. Daniels, he returned to the watchhouse but Mr. Daniels was refused entry. Despite the making of representations to the Chief Inspector of Police in Brisbane, permission for Mr. Daniels to assist in the interview of Mr. Dezfouli was denied. Mr. Masinello swears that without the assistance of Mr. Daniels it was not possible efficiently or properly to take instructions from the applicant. For the purposes of this interlocutory application, I proceed on the basis that there were difficulties in securing proper instructions from Mr. Dezfoulil on an application for refugee status without the assistance of the representative of Amnesty International, who was familiar with the situation in Tran, and with Iranian applicants for refugee status. A request was made of the Department that evening at about 10 p.m. to allow the applicant to be taken out of the watchhouse to some other secure place so that those proper instructions could be gecured, but the Director of Enforcement of the Department was unable to do this. On the following day, Friday, 22 August, at about 9.30 a.m., Mr. Masinello attended the offices of the Department where Mr. Crossland, the Acting Regional Director, informed him that the applicant would not be made available for interview until after a court appearance to authorise his detention pursuant to 5.38 of the Migration Act. Mr. Crossland advised Mr. Masinello that all the submissions on behalf of Mr. Dezfouli had to be in Canberra by 12.30 p.m. that day to enable the Determination of Refugee Status Committee to consider the further material at their scheduled meeting at 2.00 p.m. that day. o ' © Mr. Masinello says that he was not able to commence taking instructions from the applicant about his refugee application until about 11.40 a.m. In that regard, reference should be made to the section 13 statement of reasons by Barbara Joanne Phi, who is the Acting Assistant Secretary of the Refugee and Humanitarian Branch of the Department. In paragraph 11 of the findings on material questions of fact, she states: "At 5 p.m. on 21 August 1986, the applicant sought legal advice and the Department agreed to put back consideration of the review to enable an interview to be conducted by his solicitor with an interpreter." This statement that the Department agreed that the review was to be postponed until an interview with a solicitor and an interpreter could be conducted has a significance, toa which reference will be made later. In those reasons, Mrs. Phi says that a handwritten record of interview between Mr. Dezfouli and his solicitor was received on the Friday for consideration by the DORS Committee. She says that it was dispatched from the Brisbane Office at 1.02 p.m. for consideration by the committee, and, at paragraph 12 of the findings on material questions of fact, she writes:- "The Applicant's application for review of the delegate's decision Was examined hy the Determination of Refugee Status Committee on 22 August 1986 at about 2.30 p.m. The Committee unanimously recommended against the grant of refugee status." Mr. Manson says that he was under instructions from Mr. Crossland of the Department that, should the interview between Mr. Masinello and Mr. Dezfouli not be concluded by 12.30 p.m. on the Friday, he was to ring Mrs. Phi of the Department's central office to seek further instructions. Mr. Manson says that he did that, and was told by Mrs. Phi that he was to inform Mr. Masinello that he was to take his time and extract all relevant information, including any reference to the applicant's involvement with the Muja Hadin. Later, Mr. Manson describes the manner in which the interview was forwarded to Canberra. He says:- "IT thereupon offered to send by facsimile machine to my Central Office any completed pages of the interview that were available. He again expressed his gratitude for this and thereupon gave me seven or eight pages which I proceeded to send to our Central Office. IT also informed Mr. Masinelio that as further pages became available, he should call me from my office, whereupon I would also forward those pages. Some time, Mr. Masinello requested me to forward some additional papers." Mr. Masinello's description of the process by which this interview was conducted and the information obtained from Mr. Dezfouli was forwarded to Canberra is: "From 11.45 am until about 1.45 pm, I had a 13 page handwritten statement recorded from the Applicant. eae As initially I was told by John Manson, an investigator with the Respondent Department that all the material had to be in Canberra by 12.30pm all our material was prepared in a great rush without being able to check inaccuracies in translation and the like with the Applicant. > During the interview John Manson was consistently reminding me of the time limits involved. The first seven pages were sent by facsimile in one bundle and then each page was sent as soon as it was completed by me. I had no opportunity to carefully read over the material and reflect on whether all the appropriate material was put to the DORS Committee. At about 1.45pm BARBARA PHI, Chairperson of the DORS Committee spoke to me by telephone and said that the Applicant's political activities were mentioned and she said that this should be fully canvassed in his statement." He says in his affidavit:- "I believed at that stage we had done so but in the rush, on reflection, I believe that more information should have been put to the Committee." The Department was much concerned with the fact that the ship, M.V. "Iran Ghaffari" was to sail from Victoria in the few days after the 22nd, and was gimilarly impressed with the practical consideration that, should the application for refugee status be refused, it would be in the applicant's interests if he could return to the ship before it sailed from Victoria to Iran. This practical consideration goes a long way to explaining the urgency with which the matter was addressed and also highlights the nature of the difficulty of the complaints by the applicant concerning natural justice. The committee recommended against the grant of refugee status to Mr. Dezfoull. Mrs. Phi, in her affidavit, says, concerning the statements made by Mr. Dezfouli on the ship, which 10. were generally criticisms of Khomeini, of his regime, criticisms of the war with Iraq of the general political, social, and economic circumstances which prevail in Iran, that: ".,,the Committee did not doubt the Applicant had made statements expressing his views on the ship but considered his fear of punishment was exaggerated." For present purposes, it is sufficient to note that this view is not shared by of Mr. Daniels, who says, from his understanding of Amnesty International literature, from conversations with other Iranians, and from the material to which the committee also had access, that he found it difficult to understand how the Committee could have arrived at its decision. I mention this dispute because of its relevance to one of the grounds of section 5, namely, that the decision was such that no reasonable person could arrive at it. As earlier indicated, I need only consider whether there is a serious question of whether Mr. Desfouli was denied natural justice. In Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321; (1986) 60 A.L.J.R. 113, the High Court considered the application of the rules of natural justice in the context of the making of deportation orders. At p.345, Mason J. stated the general principle:- ll. "It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. (Twist v. Randwick Municipal Council (1976) 136 CLR 106 at 109; 12 ALR 379 at 382-3; Salemi (No 2) (CLR) at p 419; Ratu (CLR) at p 476; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 498-9; 14 ALR 519 at 528; FAI Insurances Ltd. v. Winneke (1982) 151 CLR 342 at 360, 376-7; 41 ALR 1 at 13; Annamunthodo v. QOilfields Workers' Trade Union £1961] AC 945). Mason J. then considered the expression "legitimate expectation", and noted:- "The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case." His Honour discussed at p.348 what procedural fairness entailed in its application to the exercise of the discretionary power conferred by s.18 of the Migration Act. He stated that, while procedural fairness did not necessarily require advance notice to be given to a deportee, 1t may be otherwise where the reasons for making of the order travel beyond the fact that the person concerned is a prohibited immigrant, and those reasons are personal to him. The particular facts of Kioa involved such a consideration, in that the applicant was alleged to have been involved in attempts to circumvent Australia's immigration laws. Since the allegation was extremely prejudicial to the applicant, Mason J. stated that the applicant should have the opportunity of replying to it. Wilson J. at p.360 was of a similar view. 12. Brennan J., at p.378, after concluding that the powers conferred by s.18 of the Migration Act were conditioned on the observance of the principles of natural justice, considered the application of those principles to the case at hand. He accepted that, in some cases, the purpose of the power would be frustrated by giving a hearing, but stated that in the case of the applicants, where there had been no attempt to evade officers of the Department, the power conferred on the Minister would not be frustrated by the hearing being given. His Honour, in considering the notion of "legitimate expectation", stated at p.378:- "If the particular circumstances of the case show that the repository of a power has made an express promise to a person or has adopted an administrative practice which that person can reasonably expect to continue and has thereby iunduced the person to expect that the power will be exercised in his favour or that it will not be exercised against him without a hearing, it may be unfair to exercise the power against the person without giving him a hearing. But the unfairness consists in a departure from the course which the repository of the power expressly or impliedly promised to follow without giving the person whose interests are affected an opportunity to be heard. The unfairness is not the disappointment of the expectation which the promise induced." In a separate judgment, Deane J., who agreed with the judgments of Mason and Wilson JJ., considered the application of those principles to the circumstances of the applicants. His Honour noted that:- 13. "The making of a deportation order against a prohibited immigrant drastically and adversely changes his rights and, to some extent, dehumanizes his status." At p. 383, Deane J. observed that the content of the requirements of procedural fairness depends upon the circumstances of the particular case. In certain circumstances it would he impracticable to extend a prohibited immigrant an opportunity of being heard before a deportation order is made. For example, where a prohibited immigrant has gone into hiding, the opportunity of according a prior opportunity, would be unnecessary. However, in the absence of any such circumstance, Deane J. noted that:- "...1t as difficult to envisage a case in which the particular circumstances would either exclude those requirements completely in relation to the making of a deportation order or so modify them that the person affected was not entitled to an adequate opportunity of being heard before he was subjected to the adverse effects of such an order. Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otlose the obligation of the administrative decision-maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious. Thus, the fact that the basis of a deportation order is merely that the person in question is a prohibited immigrant will not deprive the potential deportee of his ordinary right to a prior and adequate opportunity of being heard and of seeking to answer or avoid the reasons which appear to favour his deportation: he might wish to dispute his status as a prohibited immigrant; he might wish to raise particular matters which might arguably warrant the exercise of some special discretion in his favour or rebut particular matters which might be taken into 14, account as weighing against the exercise of such a discretion; he might wish to challenge the wisdom or justice of the administrative policy in pursuance of which it is proposed to order that he be deported." In this case the Department offered to Mr. Dezfouli an opportunity of saying what could be said in support of his application. The crucial question is whether it is seriously arguable that the opportunity given to him was inadequate in the circumstances. If there is a duty to accord the opportunity to he heard, and to answer the case against him, then it is clear that that duty means that there must be an adequate opportunity. What 15 adequate in a particular case may very well depend on the question of time constraints. In R.v. Thames Magistrates' Court; Ex parte Polemis C1974] 1W5W.L.R. 1371, the master of a vessel was summoned at 10.30 a.m. to appear and defend at 2 p.m. a charge under the Prevention of Oil Pollution Act 1971 (U.K.). The representative of the owners of the ship instructed solicitors who did what they could to prepare for a hearing at 2 o'clock. By 2 o'clock, however, not much progress had been made. The court did not sit until 2.30 p.m., Whereupon the solicitor for the applicant sought an adjournment. The justices who considered the matters rapidly determined that the matter should be heard that day. 15. The Lord Chief Justice, Lord Widgery, noted at p.1374:- "J have no doubt, in fairness to them, that they were much impressed by the fact that this ship was going to sail at 9 o'clock that night, which was a practical aspect of this matter which clearly could not be overlocked." The decision was that there be no adjournment, but by way of concession, the matter was stood over till 4 o'clock. At that time the matter was transferred to a stipendiary magistrate who heard the case out, found the case proved, and imposed a fine of £5000. The ship sazled later that evening. Lord Widgery C.J. said at p.1375:- "To start with, nothing 1s clearer today than that a breach of the rules of natural justice 15 said to occur if a party to proceedings, and more especially the defendant in a criminal case, is not given a reasonable chance to present his case. It is so elementary and so basic it hardly needs to be said. But of the versions of breach of the rules of natural justice with which in this court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the court, and of course the opportunity to present acase to the court is not confined to being given an opportunity to stand up and say what you want to say; 1t necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense. I have said one hardly needs authority for that, but in Local Government Board v. Arlidge [C1915] A.C. 120, 132, the point is well made by Viscount Haldane L.C. when he says: 16. 'My Lords, when the duty of deciding an appeal is imposed, those whose duty 1t is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made.' In this instance, on the brief and simple facts that I have related, can it be sid that the applicant was given a reasonable opportunity to present his case? It seems to me to be totally unarguable that he was given such a reasonable opportunity." Later in the judgment, his Lordship adverted specifically to the fact that, it having been determined later that there was no merit in the applicant's case, the court, 1n its discretion, should refuse the order for certiorari. Lord Widgery said, in rejecting the submission: "It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, 1t seems to me that it 1S no answer to the applicant to say: 'Well, even if the case had been properly conducted, the result would have been the same.' That is mixing up doing justice with seeing that justice is done, so I reject that argument." In my opinion, arguably there was a denial of natural justice in that Mr. Dezfouli, having been promised by the Department the opportunity of making representations to it with the assistance of a solicitor, did not have an adequate or reasonable time to make those submissions. a> 8 17. I am oonly concerned at this interlocutory stage with whether there is a point of substance able to be argued which may result in judgment in Mr. Dezfouli's favour. (Zammit v. Faingold (1981) 1 F.C.R. 87. Having concluded that there ig a serious question to be tried, no submission was directed that the balance of convenience was such that, notwithstanding that conclusion, I ought not make the stay order that 1s sought. There is one further matter. The Determination of Refugee Status Committee represented to Mr. Dezfoul1 that he would have the opportunity of making further submissions with the aid of a solicitor, and that was a situation which the evidence shows was conveyed ona number of occasions to Mr. Sergio Masinello, the solicitor for Mr. Dezfouli. The DORS Committee merely makes recommendations concerning the status of refugees, If there was a denial of natural justice in the opportunity afforded to Mr. Dezfouli of making representations to that committee, then an issue arises whether that denial affects the decision made later by the Minister to accept the recommendation. Section 5(1) (a) of the Administrative Decisions (Judicial Review) Act 1977 provides:- 18. "A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:- (a) that a breach of the rules of natural justice occurred in connexion with the making of the decision." In my opinion, if it be established that a breach of the rules of natural justice arose in relation to the opportunity afforded to Mr. Dezfouli to make submissions to the DORS Committee, then a breach of the rules of natural justice occurred "in connexion with" the making of the decision by the Minister to accept the recommendation of the Committee. The words "in connexion with" as an ordinary expression, simply mean a relation between one thing and another. Where a decision by the Minister to refuse refugee status is based on a recommendation, made after what was meant to afford the applicant natural justice, but which did not, then in my view, a denial of natural justice occurred in connexion with the making of the Minister's decision. In my opinion, there is a serious question to he tried whether that is so. The balance of convenience is overwhelmingly in favour of the conclusion that I ought to suspend the decision of the delegate of the Minister. wear 8 19. I therefore order:- The operation of the decision of the delegate of the Minister to deport the applicant be suspended until the determination of these proceedings or further earlier order. The applicant be released from detention on condition that:- (a) at 9.30 a.m. every day, Monday to Friday, he report to the Officer-in-Charge, Department of Immigration & Ethnic Affairs, Level 1, 167 Eagle Street, Brisbane, and that on each occasion he sign the attendance register; (b) he reside at Flat 13, 10 Brighton Road, West End, Brisbane, until further order. 3. The cost of the applicant be his costs in the principal proceedings. Fama) tian YO preceding | ccraiy that des e7 va nesy af the reasons for weet are a truc ae hig ment nerciy oF kis Hcnour he ny Justice Spencer BY PP Associ