CATCHWORDS Immigration - applicant an Indian citizen from the Punjab - applicant, who had alreadv been deported on an earlier occasion, entered Australia illegally - here as prohibited non-citizen for 5 vears - working during this time - deportation order sianed - applicant arrested but escaped from detention centre ~- applicant re-arrested in hospital after being shot during police raid on house in which he lived - review sought of decisions to make deportation order and to execute it - reliance placed on Minister's failure to take into account applicant's fitness to travel, his exposure to danger of arrest or persecution if returned to Punjab and applicant's wish to prosecute proceedings against members of the N.S.W. Police Force for damages - submission that decisions disclosed unreasonable exercise of power. Migration Act 1958, ss. 18. 20 CHHINDA SINGH-DHILLON v. JOHN RICHARD MAHONEY AND OTHERS No. A.C.T. G22 OF 1986 Coram: Sheppard J. Date : 9 October 1986 Place: Sydnev ot Il]_ THE FEDEPAL COURT OF AUSTRALIA MEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION JUDGE MAKING ORDER DATE OF ORDER WHERE MADE No. ACT G22 of 1986 we www BETWEEN CHHINDA SINGH-DHILLON Applicant AND JOHN RICHARD MAHONEY AND OTHERS Respondents MINUTE OF ORDER Sheppard J. 9 October 1986 Sydney THE COURT ORDERS AS FOLLOWS: 1. The execution of the deportation order made on 17 April 1986 be stayed until fourteen days after the examination of Assistant Commissioner (Crime) Nixon of the New South Wales police force pursuant to Part 3 of the Rules of the Supreme Court of New South Wales. Upon the conclusion of that examination, order the Minister, by himself or his Delegate, to consider whether the execution of the deportation order should be deferred pending the outcome of any proceedings instituted by the applicant against any member of the New South Wales police force or against a nominal defendant appointed pursuant to the Claims against the Government and Crown Suits Act 1912 (N.S.W.). 3. The application be otherwise dismissed. 4. There be no order as to costs. 5. There be liberty to apply generally. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. No. ACT G22 of 1986 we ew BETWEEN CHHINDA SINGH-DHILLON Applicant AND JOHN RICHARD MAHONEY AND | Respondents SHEPPARD J. 9 October 1986 HIS HONOUR: This applica on for judicial review was of the Court, but later transferred to the New South Wales originally brought in' the wearers Capital Territory Registry District Registry. It seeks the review of decisions to make and to execute a depbrtation order signed by the Minister's Delegate on 17 April 1986. | It is not disputed | that the applicant is a prohibited non-citizen by reason of the operation of sub-s. 6(1) of the Migration Act 1958. Nor jare the following facts in issue. On 22 May 1979 the applicant, who is an Indian citizen, entered Australia as a visitor under the name of Chhinda. He was granted a temporary entry permit for one month. Upon expiry of this permit he became a prohibited non-citizen or, more correctly, a prohibited immigrant, to pick up the language of f the statute as it was at that time. The applicant was arrested and was deported on 29 May 1980 after the making of a deportation order on 26 May 1980. The applicant again entered Australia on 17 March 1981. He had come to Papua New Guinea from West Irian. He travelled by dingy from Daru in Papua New Guinea to Thursday Island. He was not granted an entry permit and has remained a prohibited non-citizen since that time. Together with two other prohibited non-citizens, the applicant chartered an aircraft and, on 17 February 1981, flew from Thursday Island to Cairns. On 18 July 1985 deportation orders were signed in respect of the applicant and the two other persons with whom he entered Australia. At that time their whereabouts were unknown. On 30 October 1985 the applicant was found in Melbourne. He was taken into custody. He said that he wished to remain in Australia as it was very difficult to live and raise children in India. On 13 December 1985 he escaped from the Maribyrnong Detention Centre. On 4 April 1986 the applicant was found in Griffith. He was in the Griffith Hospital where he was receiving treatment for injuries to his legs. He was taken into custody. The general circumstances in which the applicant came to be injured are not in dispute, but there is dispute about the detail of them. Originally counsel for the Minister claimed that documents relating to this aspect of the matter were priviledged from production and inspection because their production might disclose the identity of a police informant. 3. As the hearing progressed, counsel changed her mind and the documents were produced and tendered. The principal document is described as, "Field Report - Griffith, N.S.W.: 2-5 April 1986". The document discloses that on 2 April 1986 Departmental officers received information that five male Indian nationals, who were illegally in Australia, were working on a vineyard at Yenda near Griffith, N.S.W. One of the five was the applicant. The Field Report describes how a raid on the premises was organized with the assistance of members of the New South Wales police. Two officers from the Department of Immigration anda number of police officers went to the property at about 5.30 p.m.on 3 April. The premises were unoccupied on their arrival and were searched. A number of documents were seized. The migration officers waited inside the house, together with one of the police officers. Outside five police officers took up positions in adjacent sheds and buildings. Two other officers had parked their vehicle at an adjacent property. The Indians returned at about 6.45 p.m. One entered the house and was arrested after a struggle. He shouted a warning to the others. Mr Johnson, who made the Field Report and who was one of the migration officers present in the house, said that he could hear police officers shouting, "Stop!", "Police!" and "Stop or I'1l1 shoot!". He heard three shots fired. The police were armed with shot guns as well as side arms. In the course of the proceedings two further Indian males were arrested. Two others escaped. A search was conducted of the area but without success. At about 11.45 a.m. on 4 September, Mr Johnson received a telephone call from a Mr McKenzie, a solicitor in Griffith. Mr McKenzie informed Mr Johnson that an Indian male person had been found in the vineyard suffering what appeared to be gunshot wounds to both his legs. He had apparently been in the vineyard all night. The person referred to by Mr McKenzie was the applicant. He was taken to the Griffith Hospital suffering, so Mr Johnson said, a broken ankle and flesh wounds. In his evidence the applicant agreed he was shot during the raid. But he denied that he was given any warning before the shots were fired. He said that when he returned from work on 3 April 1986 he saw a number of people waiting for him and his companions. He noticed that two had guns. He continued, "I was shot without any warning. I then ran away." In accordance with the Department's usual procedure a recommendation was prepared recommending the revocation of the "earlier deportation order signed on 18 July 1985 and the signing of a fresh deportation order. The recommendation was signed by Mr J. Stankevicius, Acting Director, Enforcement 5. Section, on 16 April 1986. The recommendation was approved by the first respondent, Mr J.R. Mahoney, the following day. To say the least, the recommendation is elliptical as to the circumstances surrounding the applicant's arrest on 4 April 1986. But the Field Report earlier mentioned had been made to Mr Mahoney, so that he was in possession of the facts stated in it by Mr Johnson. At the time Mr Mahoney approved the recommendation, he thus had full information, at least so far as it could be got from the Department, as to the circumstances surrounding the applicant's arrest and the shocting of him in the leg. However, he did not have information directly from any of the police officers present. He thus had no eye witness account. The applicant had to remain in hospital for some weeks in order to receive treatment for his injuries. However, he has now recovered from the effects of them, at least to the extent that he appears able to travel. The applicant wishes, however, to bring proceedings against members of the New South Wales police force for damages for the injuries which he has sustained. In order to identify the police officers who were present and to attempt to identify the police officer who fired the shot which caused the injuries, the applicant has instituted proceedings in the Supreme Court of New South Wales for preliminary discovery pursuant to Part 3 of the Rules of 6. that Court. Those proceedings were heard on19 and 22 September last. On 24 September Master Hogan delivered judgment. He ordered that Assistant Commissioner (Crime) Nixon attend before the Court for oral examination as to the identity of the officers who shot the applicant. The examination is to take place on a date to be arranged between counsel. Mr Nixon is not availble until some time later this month. Since I reserved my decision, I have been informed by counsel for the applicant that he has drafted and sent to his instructing solicitor a petition under the Claims Against the Government and Crown Suits Act 1912 (N.S.W.) praying for the appointment of a nominal defendant who may be sued by the applicant in respect of the shooting. A delay of one to two months is expected before a nominal defendant is appointed. Counsel has informed me, with the consent of counsel for the Minister, that he proposes to advise the joinder of so many of the police officers who were involved in the shooting as are eventually identified, as well as of the nominal defendant. Counsel for the applicant based his attack on the decisions which are in question on two grounds provided for in the Administrative Decisions (Judicial Review) Act 1977, namely those provided for in paras. 5(2)(b) and 5(2)(g), as applied by para. 5(1)(e). In short, counsel submits that the decisions were made without taking relevant considerations into account and were, in any event, such as to disclose the unreasonable 7. exercise of the power to deport the applicant. Three matters were! relied upon. These were: - | ka) At the time the deportation order was made the ' | | ' t ' | I II (Db) (c) applicant was not fit to travel. This should have been known to the Minister's Delegate who should not have signed the deportation order before satisfying himself that the applicant was fit to be returned to India. The Minister's Delegate either knew, or ought to have known, that to return the applicant to India was to expose him to grave danger. This was because the applicant was a Sikh and there is at the moment, and has been at all relevant times, a substantial risk of persecution of Sikhs in India, particularly in the Punjab, from where the applicant comes and to which he could be expected to return if he were deported. The Minister's Delegate ought to have realized that the applicant might wish to institute proceedings to recover damages against those who were responsible for his injuries. 8. It is first necessary to say something of the nature of the grounds upon which counsel for the applicant relies. The ground of failure to take a relevant consideration into account was recently the subject of consideration by the High Court in Minister for Aboriginal Affairs v Peko-Walisend Limited (31 July 1986, as yet unreported). The position is summarized by Mason J. in paras. (a) to (e) on pp. 12-16 of his judgment. Ido not quote the entirety of what his Honour there said but all is relevant and important for the purposes of this case. I do, however, quote the following passages from these paragraphs: "(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ... (Bb) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision- maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant consider- ations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in 9. the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ..." No criteria are provided for in s.18 of the Migration Act. The Minister's discretion is at large. Counsel for the applicant was unable, during the course of argument, to point to any matters arising from the subject-matter, scope and purpose of the Act which would lead to the conclusion that the Minister was obliged, as a matter of law, to have regard to any of the matters upon which reliance was placed in order to attack the decisions in question. Counsel did refer me to a paragraph on p.8 of the current Ministerial Policy in relation to deportation. It is there said that the Minister or his Delegate may take into account a number of factors including the personal details of the illegal immigrant. But the use of the word "may" plainly indicates that the Minister has not obliged himself to take personal details into account in every case. Furthermore, the policy cannot be relevant to the proper construction of the Act. For the purposes of this argument, the Policy must be found within the Act itself and not elsewhere; the judgment of Mason J. in Peko-Wallsend makes this clear. In my opinion there is no warrant for concluding that the considerations relied upon by counsel for the applicant were matters which the Act, by reason of -its subject-matter, scope and purpose, obliged the Minister to take into account. 10. So far as the ground of unreasonableness is concerned, the authorities are, with respect, usefully collected by Wilcox J. in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 F.C.R. 155; see pp.167-170. In short, the applicant, in order to succeed on this ground, must demonstrate that the decision is so unreasonble that no reasonable official could ever have come to it; see Associated Provincial Picture Houses v Wednesbury Corporation (19481 1 K.B. 223 per Lord Greene M.R. at p.230. One of the matters discussed by Wilcox J was the question of whether evidence of matters not before the Minister, actually or constructively, was relevant to the issue of reasonableness. Wilcox J. concluded, tentatively as he said, that the Court is entitled to consider those facts which were known to the decision-maker, actually or constructively, tegether only with such additional facts as the decision-maker would have learnt but for any unreasonable conduct by him; see pp.169-170. In this regard Wilcox J said (p.170): "But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information." With these principles in mind I proceed to consider each of the matters relied upon by counsel for the applicant. I deo not think that it could be said that the making of the il. ' { deportation order at a time when the applicant was not fit to! travel was so unreasonable as to warrant the interference of the Court. Sub-section 20(2) of the Act indicates that the execution of a deportation order may not be an automatic! | affair. It ought to be assumed that the applicant would not be deported until he was well enough to travel. In any event he is now fit. If this were the only ground relied upon, discretionary considerations would militate against the granting of relief. In support of the second matter there was evidence, which I admitted over the objection of counsel for the' Minister, from Mr T.B. Smith, Senior Lecturer in South Asian Politics at the Australian National University. He has lived, studied and travelled in India for the last twenty years and has followed events in Indian politics closely during that time. He said the Punjab district of India is one of the major trouble spots of that country. Recent reports indicate that there are no signs of the situation improving. He said that the Punjab area is now under military rule and martial law has replaced basic civil liberties. In February 1986 it was reliably estimated that some 3,000 people were in detention and there were numerous reports of arrests, torture, intimidation and press censorship. Mr Smith said that anyone thought to be involved with Sikh politics would be likely to be put under detention. He also said that the situation was compounded by violence between Hindus and Sikhs and between militant and 12. moderate Sikhs. Against that background he referred to the facts of this case. He said that, if the applicant had been labelled as a Sikh extremist or asan associate of Sikh extremists, he would be likely to be detained on his arrival in India and be the subject at least of interrogation and possibly detention or torture. Mr Smith was not cross-examined and I) | accept the general purport of his evidence. Counsel for the applicant also relied upon the evidence of a Mr White, a journalist in the employ of Macquarie Broadcasting Holdings Limited. He is the Deputy News Director at Radio Station 2GB in Sydney. He referred to news reports | of the circumstances in which the applicant and his compatriots! I were arrested. During one of these reports on 7 April 1986 it, was said that a Long Bay Gaol official had reportedly said that the applicant was suspected of being a Sikh terrorist. In another report it was said that the applicant was thought to be a Sikh extremist. Similar words were used in a later | | broadcast on 7 April and in a broadcast on 8s April 1986.|" Statements to the same effect were made in some newspapers, clippings from which appear in the Departmental file. In counsel's submission it was a wholly unreasonable exercise of the power to decide to deport the applicant without taking into account the circumstance that he, having been labelled a Sikh terrorist or extremist in news broadcasts in Australia, would be in serious physical danger if he returned: 13. to the Punjab. In counsel's submission the relevant officials of the Department should be imputed with actual or constructive knowledge of the state of unrest which has existed in the Punjab for some years. Not to have regard to this matter, particularly in the light of the way the applicant had been described in news broadcasts, was to act ina fashion so unreasonable that the exercise of the power could not be supported. In my opinion this submission should be rejected. Regrettably there are great numbers of trouble spots in the world. It would impose on officers of the Department and the Minister an impossible burden if it were held that they were bound to investigate the potential danger to a vast number of prohibited non-citizens if they were returned to their home countries pursuant to deportation orders. Furthermore, the deportation of the applicant is not to the Punjab, but to India. There is no evidence of what his position may be if he goes to a place in India other than the Punjab. In the circumstances I do not consider that the applicant has demonstrated that the decision to deport him was at all unreasonable. After all, he came here quite deliberately flouting the immigration laws of this country, laws with which he had some familiarity because of his previous deportation. To put the matter at its lowest from the Minister's point of view, I am satisfied that the Delegate's exercise of power to ! 14. , i '| { I. make the deportation order did not disclose the degree of 3 | unreasonableness required before this Court will interfere. The the applican in which he pes matter relied upon concerns the shooting of 'on 3 April 1986 by the police, the circumstances was later arrested on 4 April 1986 and the suggested need for an inquiry into the circumstances of the { shooting, together eC the applicant's right to bring an u 4 action for damages ' should he be an respect of the injuries suffered by him so advised. The particular matters relied upon, as they appear inj] the application and in amendments made thereto, are'as folllows: (a) (b) .A failure to ensure that the circumstances in | which the applicant was shot are determined by an acceptable forum and that the applicant be ' available to testify at such inquiry. | A failure to make enquiries as to the possible existence of liability in officers of the t Department of Immigration and Ethnic Affairs and i in ons South Wales police force in respect of th 'injuries suffered by the applicant when he was| shot by one or more officers near Yenda, i N.S.W.j, on 3 April 1986. | I 1s. (c) The loss by the applicant of any real prospect of success in efforts or proceedings to recover compensation, for the injuries he suffered when he was shot, if he is deported from Australia. The Departmental file shows that the shooting incident was referred to in telexs sent to the Attorney-General and the Minister for Immigration by a Mr Urban. Mr Mahoney was asked to provide details of the incident by an officer of the Attorney-General's Department. This occurred on 15 April 1986. Mr Urban is the Chairman of an association known as. the Pan Ethnic Republican Party of Australia, New South Wales State Assembly, Migration Committee. Mr Urban's telexs were received about 15 April 1986. By that time Mr Mahoney had Mr Johnson's Field Report to which I have made reference. On 14 April 1986 he sent a memorandum to the Regional Director of the Department in the Australian Capital Territory. He referred to the fact that a copy of the Field Report had been provided to the Secretary of the Department who had annotated his copy as follows: "Somewhat less than illuminating. Were the police equipped with shotguns? Was the discharge a shotgun? Did the may lay out over night?" Mr Mahoney asked that these questions be answered and also for further information generally about the incident. The reply from the Regional Director was dated 16 April 1986 and was as follows: 16. "PIELD REPORT - GRIFFITH, NEW SOUTH £WALES: 2-5 APRIL 1986 I refer to your memo of 14 April and to the Secretary's request for further information concerning the Griffith operation. In answer to question one, the Police were equipped with shot guns. We have received no official report from the Police as to whether or not a shotgun or a handgun was discharged. The Immigration officers in Griffith were told that the weapon fired was a shot gun. In answer to the second part of the question, the Police searched the vineyard with the aid of spot lights and found no one. The first that either the Police or Immigration officers knew of Mr Chhindadhilion's plight was some time during the following day when the hospital reported that they had admitted an Indian male suffering from a broken ankle and flesh wounds. The report was made to the Police by the hospital as is the standard practice in these cases. The verbal report, again we have nothing in writing, was that he had been taken to the hospital by a property owner and that he had spent the night in the vineyard. As soon as we receive any formal advice from the Police we will bring it to your attention." Subsequently solicitors acting for the applicant wrote to the Department foreshadowing a claim for damages. These letters did not reach the Department until after the deportation order was signed on 17 April 1986. Since then the matter has developed in the way that I have described. I am satisfied that there was no unreasonable delay on the part of the applicant's solicitors. The examination of Assistant Commissioner Nixon pursuant to the provisions of Part 3 of the Rules of the Supreme Court of New South Wales is still to take place. 17. In the entirety of the circumstances of this case I do not think it was wholly umreasonble for the Minister's Delegate to sign the deportation order on 17 April last. As I have said, the applicant was in flagrant breach of the migration laws of this country. He had been deported once before. He had returned in a most deliberate fashion, entering the country illegaliy and remaining unlawfully here since then. During that time he worked, something which he was prohibited by law from doing. At the time the decision to deport him was made, there was no claim foreshadowed by any solicitor. Mr Mahoney had the report which had been prepared shortiy after the incident had concluded on 4 April 1986 and he had the further memorandum of 16 April 1986. Unquestionably the matter was serious, but enquiries were to be conducted within the New South Wales Police Department and no officer of the Department had been involved in the shooting. The two officers were inside the building and did not witness it. It remains to consider the second decision which is impugned, namely the decision to execute the deportation order. It was suggested during the course of the hearing that the Minister was indeed reconsidering the matter in the light of the applicant's desire to pursue action against members of the New South Wales police force. In those circumstances I suggested that perhaps the matter might be adjusted without the need for the Court to resolve it. But I was told that this could not be done because there was a question of who should 18. pay the costs of this application. The parties were unable to agree on this matter and, as I understand what I was told, for that reason alone the matter was not pursued. I think this is regrettable but the material before me does not enable me to say whether one party or the other is to blame for such an unfortunate situation. What the applicant really seeks to achieve is to remain long enough in Australia to prosecute his claim. I agree with submissions made by his counsel that once he leaves the jurisdiction, it will be, from a practical point of view, quite impossible for him to prosecute it. Unlike the decision to make the deportation order whereby the applicant would be deported, the decision to execute the order involves a continuing process. The order may be executed at any time. The fact that the reason why it has not been executed is because of a stay of proceedings granted by this Court in May last is not to the point. Just as it would be lawful for the Department, although a deportation order were in existence, to leave it in abeyance until a deportee was fit to travel, so, in my opinion, would it be lawful to delay its execution until a deportee in the position of the applicant here had had an opportunity of prosecuting his claim. This course was adopted by Lockhart J. in Laremont v Minister for Immigration and Ethnic Affairs (6 December 1985, unreported). In that case 19. the applicant wished to maintain proceedings for workers compensation against his employer. Lockhart J did not set the deportation order aside but referred the question of whether the applicant should actually be deported to the Minister for further consideration and directed him not to execute the order prior to that consideration being given. Because the position is a continuing or developing one, I think it appropriate to look at the position as it is now. In my view it would be wholly unreasonable to decide to execute the deportation order forthwith without giving the applicant an opportunity at least of seeing the outcome of the examination of Assistant Commissioner Nixon which is to take Place later this month. Whether, in the light of what emerges from that examination, it would be unreasonable to deport the applicant until he had had an opportunity of prosecuting his claim is, I think, a matter for the Minister to decide, no doubt with the aid of what emerges during .Assistant Commissioner Nixon's examination. Without binding him in any way, I would expect that the willingness of the applicant's solicitors to act expeditiously in the prosecution of any claim would be a matter to which he would have regard. if the Supreme Court is willing to do so, the hearing of any proceedings should be expedited. I would also express the tentative view that the Minister would be well justified in requiring the applicant to remain in custody during the period of any deferral of the execution of the deportation order. The 20. applicant's record makes it clear that he is not to be trusted to abide by any conditions set in relation to the grant of bail. In the circumstances I propose to dismiss the applicant's claim for judicial review in relation to the decision to sign the deportation order but to uphold it in relation to his claim that the decision to execute the deportation order should be reviewed. The order will be stayed until fourteen days after Assistant Commissioner Nixon's examination has been concluded. Whether any further stay of it is granted will be a matter for the Minister to decide in the light of the then circumstances. The parties have had mized success in the proceedings and I think there should be no order as to costs. The orders I make are: 1. The execution of the deportation order made on 17 April 1986 be stayed until fourteen days after the examination of Assistant Commissioner (Crime) Nixon of the New South Wales police force pursuant to Part 3 of the Rules of the Supreme Court of New South Wales. 21. Upon the conclusion of that examination, order the Minister, by himself or his Delegate, to consider whether the execution! of the deportation order should be deferred| pending the outcome of any proceedings instituted by the applicant against any member of the New South | Waies police force or against | a nominal defendant appointed pursuant to ithe Claims against the Government and Crown Suits Act 1912 {(N.S.W.). The application be otherwise dismissed. There be no order as to costs. There be liberty to apply generally. | | | 1 \ {Certify that this and the2O preceding pages are a true copy of the reasons for judgment herein of The Honourabie Mr Justice Sheppard. / Abhuc- Assoclata | Rated 9 octToscK /BL f