JUDGMENT No. .2S.ceeronl LEZ, IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION i No. G 377 of 1987 NEW SOUTH WALES DISTRICT REGISTRY ) Between: GEORGE POURSANIDIS ' And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS CORAM: Einfeld J. 22 September 1987 PLACE: Sydney EX TEMPORE JUDGMENT This is an application for judicial review of a deportation order signed on 30 July 1987 by a delegate of the Minister for Immigration and Ethnic Affairs, the execution of which would mean that the applicant would be deported to Greece. The applicant has been in Australia since 1976, when he deserted a ship in Australian waters and entered Australia unlawfully. He is a citizen of Greece and is aged about 30 years. In March 1977 a deportation order was said to have been signed against the applicant by the then Minister but the applicant claims to know nothing about that deportation order, and it may not have been served. It certainly was not executed. In November 1980, the applicant lodged an application for permanent resident status, claiming at the time that he was married to an Australian citizen. Although this claim was apparently true, and he had a female child by that woman, he does not appear to have been granted permanent resident status. That marriage has since been dissolved, and the applicant has offered no evidence of any involvement with either the 'mother of his child or the child herself. In July 1984, the applicant was convicted at Waverley Court of Petty Sessions of possession of heroin and was sentenced to 18 months imprisonment with hard labour, with a non-parole period of nine months. He appears to have been released after serving seven months. Between the time' of his arrival in Australia and the time of his conviction, he engaged in different types of employment and whilst not working received unemployment benefits. After release from prison, he worked for a period in a relative's business but subsequently was again on social security until in February 1986 he entered hospital for an operation. He has not worked since that time and has received sickness benefits. The applicant was arrested in April 1977 as a prohibited immigrant and for having failed to pay certain traffic fines, and has been in the Metropolitan Remand Centre at Long Bay ever since. I am advised that when prohibited immigrants have convictions or significant convictions, they are kept at Long Bay rather than at Villawood Detention Centre. It seems extraordinary to me that someone can be kept in gaol for five months without a hearing to determine whether he should remain there or what his status within Australia is or ought to be. No other person could be held in custody without being brought before a magistrate and given the opportunity of applying for bail, but this seems to have been denied to this. applicant. I do not say that in criticism of the Immigration Department, but it does seem to be a significant defect in the law that would permit someone to be kept in prison for five months without a conviction or any form of trial or court hearing. Counsel and solicitors on behalf of the applicant made application to me on 6 August 1987 for a stay of the deportation order. This was granted, and the matter was listed for directions. on 12 and. 26 August. Ultimately a hearing date was fixed for 1 September, but on the applicant's application, this was vacated, and today's date fixed instead. At the directions hearing on 26 August, I gave a number of directions to facilitate the preparation of this matter for hearing. Notwithstanding that, the application for an order of review, which had been presented on 6 August as part of the application for a stay of the deportation order, remains incomplete and in relevant respects unparticularised. In the afternoon of Thursday 17 September, my associate was contacted by the solicitor for the applicant and informed that legal aid, which had thus far been available to the applicant in this application, had been refused for the hearing. 'An appeal had been lodged against the refusal to grant legal aid, but the solicitor was informed that the matter could not be dealt with in time for today's hearing to proceed. This meant, in effect, that the timetabling by the legal aid authorities was dictating the court lists, and for that matter, the Government's deportation programme as might affect this applicant. Because this was unsatisfactory, I asked the legal aid authorities to expedite the appeal against the refusal of legal aid. As a result of that intervention, the legal aid review was expedited and was heard yesterday. The refusal of legal aid was confirmed, and as a result, Mr. Poursanidis appears today without legal representation. This also demonstrates an unsatisfactory state of affairs. A man is in prison for five months without a hearing, without the opportunity of bail, and suddenly is confronted with an important hearing in which his whole future may be determined, but he. does not have legal representation. The result is that he has had to conduct his own case with an imperfect understanding of English and with little understanding of the- technicalities involved in an application for review under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act). The decision to deport was accompanied by a number of other decisions. The applicant was also refused the grant of a temporary entry permit, he was refused a permanent entry permit pursuant to what is known as "the regularisation of status programme", he was refused any other category of entry pexmit, and according to the application for an order of review, was refused the concession of a supervised voluntary departure. In the statement of reasons given by the decision-maker, who is the. Regional Director of the Sydney office of the Department of Immigration, Local Government and Ethnic Affairs and the delegate of the Minister, there is, so far as I can see, no reference to a refusal of supervised voluntary departure. As I understand it, this has significance in that a person deported is in general, at any rate, not allowed to return to Australia or even make an application for residence or citizenship here for a five-year period after the deportation. This does not apply when there is a voluntary departure. Nonetheless, no part of the application as set out in the grounds of the application for review, nor any matter raised by the applicant today, suggests that this matter has played any relevant part in the situation as applies at the present time. There are three gounds that are put forward for judicial review. It is firstly said that there was a breach of the rules of natural justice in the making of each of the decisions to which I have referred. The relevant definition of natural justice is by now well known and is set out in a number of decisions of the High Court and of this Court. i Giving the best attention that I can to the principles laid down in those decisions and to the facts of this particular case, I am quite unable to see how there has been any breach of natural justice in this . matter. The application for review has a heading "Particulars" under the ground of natural justice with the words "to be provided". In other words, no particularisation has commended itself to the solicitors who filed this application and who were still in charge of the matter until the refusal of legal aid at the end of last week. I can find no breach of the relevant rules of natural justice. It seems to me that the . applicant was given considerable opportunity to put whatever view he wished and whatever argument was available and to promote any person or persons who could assist in the departmental deliberations on his case. It seems to me that the decision processes of the department in this case extended to him every opportunity to put arguments or points of view or documentary material relevant to a decision in his favour. This argument under section 5(1)(a) of the Judical Review Act fails. The second ground of the application is that the making of each of these decisions was an .improper exercise of the power conferred by the Migration Act. This objection is made possible by section 5(1)(e) of the Judicial Review Act. There is then provided' section 5(2) of this Act which in substance defines an improper exercise of power under a number of different headings, one of which is relied upon here, namely, that the respondent failed to take into account the. relevant considerations that the applicant is the de facto spouse of 'an Australian citizen. The failure to take a relevant consideration into account in the exercise of a power such as this is provided as a basis for asserting an improper exercise of power by section 5(2)(b) of the _ Judicial Review Act. The situation concerning Mr. Poursanidis' personal life is that following upon his divorce in June 1982, he seems some time later to have commenced a relationship with a Ms Sharni Harrison. This relationship persists to the present day, and there seems no reason not to accept that the relationship is a genuine one, even though it seems to have undergone some rather unusual and stressful pressures. The friendship of the applicant and Ms Harrison appears to have commenced some time after the applicant's release from hospital in February 1986. By May 1987, when Ms Harrison was interviewed by an officer of the Department of Immigration, it was said that the relationship had existed for the past 15 months. Ms Harrison is an Australian citizen. She appears to have become pregnant at some time in 1987 but subsequently lost the child after a traumatic experience and the nervous pressures and tensions involved in the arrest of the applicant earlier this year. Ms Harrison was born in August 1971. That means that at the time when the deportation order was actually signed, she was a few days short of her sixteenth birthday. I am advised that there was a policy followed by the department in relation to de facto spouses that if the female party is under sixteen years of age, the de facto relationship is not to be recognized for the purpose of granting resident status. I can see no justification in the legislation for such a policy, although I can understand that the department .might look with somewhat more perceptiveness and precision than otherwise might be the case to the permanency of relationships between 30-year old men and 15-year old women. In this particular case, the delegate of the Minister stated very properly that because Ms Harrison was almost 16 years of age at the time of his decision, he gave this aspect of the policy little weight in the decision-making. Ms Harrison was interviewed at some length by a departmental officer, and the applicant was interviewed on more than one occasion about his relationship with Ms Harrison. It cannot be said in the light of the matters contained in the reasons for the decision of the Regional Director as delegate for the Minister that he failed to take into account that the applicant is the de facto . spouse of Ms Harrison, an Australian citizen. It is clear that he did take it into account. It is also clear that he did not exclude the relationship by reason of any departmental policy of the kind to which I have referred in view of the fact that she was almost 16 years of age. In these circumstances, I cannot find that the making of the decisions in this case was an improper exercise of the power conferred by the Migration Act 1966 as prescribed by a combination of sections 5(1)(e) and 5(2)(b) of the Judicial Review Act. In the application for judicial review, after identifying that the relationship with Ms Harrison was the basis on which the decisions were attached, there is a statement "further particulars will be provided". Not only are there no such further particulars in the documents; I can find none in any material which has been brought forward by Mr. Poursanidis or Ms Harrison today. The third stated ground in the application for judicial review is that the decision involved an error of law. The allegation in substance is that the delegate of the Minister in effect treated Ms Harrison's age under 16 years as a disqualifying factor on Mr. Poursanidis' application to remain in Australia. For the reasons I have previously given, it is clear that this attack on the decisions also fails because . whatever be the status of the departmental policy in relation to de facto spouses under the age of 16 years, this decision was not affected by it. One ground upon which an entry permit may be granted to non-citizens after entry into Australia is provided by section G6A(1)(e) of the Migration Act. This provides that the holder of a temporary entry permit may be granted a permanent entry permit or residence if there are strong compassionate or humanitarian grounds for the grant of such a permit to him. Although this ground is not stated in the application for judicial review, it was a matter that was adverted to by the decision-maker in this decision. The Minister cannot therefore be adversely affected by my addressing the matter briefly now. In this case, the decision-maker found that there were no such grounds for the grant of a permanent entry permit to the applicant. Although it is sad that intimate relationship should be broken by deportation orders, the question is whether the decision-maker was entitled to find that in this case there is insufficient evidence to establish strong compassionate or humanitarian grounds for permanent resident status. Both Ms Harrison and the applicant say that their relationship is close although the applicant now describes their relationship as being that of friends. It is true that both of them state that they wish to marry. rt can understand that at the time when the application for a permanent entry permit was being considered and even at the time when the deportation order was signed, Ms Harrison did not seriously have thé opportunity of marrying without some difficulty because she was under 16 years of age and was not in contact with her parents to approve her early marriage. She has now been 16 years of age for something of the order of six or seven weeks. No application to marry has been filed, no notice has been given, and the matter is still left in the air. The applicant and Ms Harrison informed me that they have received "advice" from euch legal giants as the prison authorities and, in some case, from other members of the civil service as to their rights to Marry now and/or marry at the prison, and the effect of such marriage on Mr. Poursanidis' right to remain in Australia. Without placing any weight on their hearsay accounts of the advice which they had been given, it is significant that they were legally represented until two or three working days ago and did not apparently seek the advice of their solicitor on this important matter. Section 6A(1)(b) of the Migration Act entitles a non-citizen to the opportunity of permanent residence in Australia after entry into Australia if he is the spouse of an Australian citizen. Mr. Poursanidis and Ms Harrison are not presently married and, as I see it, Mr. i | | | i Poursanidis is not entitled to permanent residence in Australia unless he: is the spouse of an Australian citizen pursuant to that sub-section. Therefore, the only basis upon which permanent residence in Australia could have been granted would have been if the circumstances of his relationship with Ms Harrison and perhaps the imminence of their marriage might have given rise to a finding that there were strong compassionate or humanitarian grounds. It is not for me to determine whether the facts in this matter amount to such grounds. My sole task is to determine whether there has been demonstrated any error of law in the finding by the decision-maker that such grounds did not exist. I am unable to find any such error of law. The decision-maker drew a balance between those factors which militated in favour of the grant of permanent residence to the applicant and those factors which weighed against. He seemed to do so open-mindedly and with fairness. He even revoked an earlier deportation order which was still extant and available for execution, in order to enable him to consider the whole of the facts unfettered by the previous refusals of Mr. Poursanidis to leave the jurisdiction or any other much earlier events which might have militated against his chances of remaining here. In these circumstances, there has not been demonstrated, and there is not available, as I see it, from the facts which are in evidence, a basis for suggesting that the delegate of the Minister made an error of law in holding that there were no compassionate or humanitarian grounds for the grant of a permanent entry permit to the applicant. The applicant claims that he feels and is Australian, that Australia is his home and that the length of time he has been in this country would represent a serious hardship were he now deported. In express terms, these factors do not appear to have been impressive to the delegate of the Minister as a ground for considering permanent residence in Australia. I can understand such a conclusion. It would meant that all an illegal migrant has to do to be permitted to remain in Australia is to escape the authorities for long enough to create some type of prescriptive Yight to stay. This cannot be and is not the law. On the other hand, it seems to me that the department may well feel that this is a case in which some additional considerations might be called for before deportation is finally confirmed and carried out. I have said that I do not believe that there is or has been demonstrated any ground for challenging the decisions under review. It does not appear from the papers made available to me that voluntary departure has been considered, but I do not doubt as these matters are regularly considered, that the matter did not escape attention completely. It seems to me that it would be appropriate that it be especially considered in this case, if only for the reason that if Ms Harrison does travel to Greece for the purpose of marrying the applicant, the applicant and Ms Harrison should not be prevented from returning to Australia as soon as convenient if they do marry. However, it also seems to me that the department might well consider this to be a case in which other considerations might militate in favour of a further consideration. The first is that the applicant has been in Australia since 1976. In that time, that is between 1976 and _ the present day, there have been three deportation orders signed against him: one in 1977, which does not appear to have been served; the second in 1982; and the third one in July of this year. During that time the applicant has engaged in employment, has paid income tax and has, according to him, never failed to be employed under his own name. He 'has also received various categories of Social Security benefits when he has not been employed. He has been interviewed by the department ona number of occasions since 1984 and, as long ago as 1980, lodged an application for permanent resident status to which 'the department responded in writing some nine months later. In 1983, he lodged a citizenship inquiry form, and the department invited him to submit further information in support of his application for resident status. It apparently treated the citizenship inquiry as an inquiry as_ to resident status. From the department's own statement of reasons, the next contact was initiated by the applicant himself by telephone, when he advised in March 1984 of the break-up of his then marriage, that he was facing the drug charges and that he would provide the department with some statement of his then circumstances. In other words, the applicant has been available to the department virtually at all times for the last eleven years, even in difficult and embarrassing circumstances. It is true that the contacts between the department and him have been at times . sporadic, but there is no allegation, nor are there any facts to support an assertion, that he has at any time, or for any appreciable time, attempted to avoid the department or go into hiding. In addition, weight might be given to a consideration that deciding on marriage by a 30-year old male from Greece and a 16-year old female from Australia who has been separated from her parents and family circle for some considerable time, would be an event causing trauma to both parties, and would not be an easy matter to deal with, especially while the applicant was in gaol for so many months. These matters might also be treated as background to the fact that virtually no steps have been taken to solemnize the marriage. The department might consider whether they represent any basis upon which the deportation order might not be executed. Having said that, I must, however, do the duty which is imposed upon me by the Judicial Review Act and the interpretation of its terms to which I have earlier referred. No ground has been made out for a review of the decision in this case to deport the applicant and with the recommendations and urgings to which I have earlier adverted, I must, in the circumstances, dismiss the application.