JUDGMENT No. el 7B. CATCHWORDS ADMINISTRATIVE LAW - Immigration - Deportation of prohibited non-citizen - Previous unsuccessful extradition proceedings against proposed deportee - Deportation proposed to be made to country seeking extradition - Finding that arrangements made amounted to "disguised extradition" of deportee -— Orders appropriate to be made by Court. Migration Act 1958 ss.16, 18, 22. NSW G.784 of 1987 JENS INGO LUTZ SCHLIESKE v THE HONOURABLE MICHAEL JEROME YOUNG, MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS & ORS Fox, Wilcox and French JJ Sydney 4 March 1988 30 wh a. 296 wYW L = GAAISDSY fe] ~ Vv ee ee ncn ee renee ae IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) NSW G.784 of 1987 ) ) GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JENS INGO LUTZ SCHLIESKE Appellant AND: THE HONOURABLE MICHAEL JEROME YOUNG, MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent THE HONOURABLE LIONEL FROST BOWEN, ATTORNEY~GENERAL OF AUSTRALIA Second Respondent COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Third Respondent DIRECTOR OF PUBLIC PROSECUTIONS Fourth Respondent COMMONWEALTH OF AUSTRALIA Fifth Respondent CORAM: FOX, WILCOX and FRENCH JJ PLACE: SYDNEY DATE: 4 MARCH 1988 MINUTES OF ORDER THE COURT ORDERS THAT: Note: The title of the proceedings be amended so as to delete the words "The Honourable Michael Jerome Young". Order 1 made by Beaumont J on 23 December 1987 be set aside. The respondents and each of them, their servants and agents, be restrained from delivering the appellant into the custody of any officer or agent of the Government of the Federal Republic of Germany. In the event of the deportation of the appellant from Australia to the Federal Republic of Germany, the respondents and each of them, their servants and agents, be restrained from taking any steps, in the exercise of their statutory powers, for any purpose other than the removal of the appellant from Australia. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. neem ere IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSW G784 of 1987 wee we ON APPEAL from a single judge of the Federal Court of Australia BETWEEN : JENS INGO LUTZ SCHLIESKE Appellant AND: THE HONOURABLE MICHAEL JEROME YOUNG, MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent THE HONOURABLE LIONEL FROST BOWEN, ATTORNEY-GENERAL OF AUSTRALIA Second Respondent COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Third Respondent DIRECTOR OF PUBLIC PROSECUTIONS Fourth Respondent COMMONWEALTH OF AUSTRALIA Fifth Respondent REASONS FOR JUDGMENT CORAM: FOX, WILCOX AND FRENCH JJ. DATE: 4 MARCH 1988 Fox J. The relevant materials in this matter are set out in the joint judgment of Wilcox and French Jd. I agree with the orders their Honours propose and in general with their reasons. The appellant is a prohibited non-citizen, and as such liable to deportation. He is wanted by the West German police for the alleged commission of several crimes. Extradition proceedings against him in Australia failed on two occasions, but not on any view held here as to the commission of the offences. The respondent Minister wishes to deport him, and a deportation order has been signed. (Migration Act 1958, ss.18, 20 and 22 C"the Act"]). It is submitted that the deportation order is invalid as being a "disguised extradition". The adjective "disguised" is not very illuminating, indeed it seems to me to be much of the source of the trouble in this area. The question is in my view best regarded as one in which one asks the direct question whether the power which undoubtedly exists to deport has been validly exercised. This goes to a number of questions affecting validity. One is whether the power is being exercised bona fide in order to effect a deportation. This is a question of fact, or sometimes a mixed question of law and fact. There is no doubt that the mechanics of the deportation may involve the application of some force but the fact that an extradition may aiso do so is hardly to the point. It has aiso been held that an authorised officer may select the destination of the deportee (see s.22(1) of the Act, Znaty v. Minister for Immigration (1972) 126 CLR 1) and he may also, within reasonable bounds, select the manner of carriage, including, in a case such as the present, the particular airline. These considerations all tend to assimilate deportation to extradition, but there are differences. One difference is that a State seeking extradition will normally have a police officer or officers on hand to escort the extradited person in custody from the custody in which he is held in Australia. There is a handing over of the extradited person pursuant to the Attorney-General''s order to give effect to the extradition. It does not seem to me that the power to deport can be lost because of a knowledge on the part of the decision maker that an application for extradition had been made nor that the person in question is wanted on charges in the country to which he is to be deported. This last-mentioned country will normally be the country of nationality but it should be chosen with due regard for the proper exercise of the discretion. In the present case there is no reason why the appellant should not be deported to Germany albeit this may mean his early arrest. I donot take the view that the situation is to be weighed up according to a comparison of the number of external factors which correspond with extradition and those which correspond with deportation, although these may well be matters to which the Tribunal of fact will have regard in deciding upon whether the power is being exercised for some bye purpose. It seems to me that for these reasons and the reasons much more fully elaborated in the joint judgment that the appeal should fail. I certify that this and the two (2) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. "oye . Associate: Karan Shu Date: 4 March 1988 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSW G.784 of 1987 ee ee GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JENS INGO LUTZ SCHLIESKE Appellant AND: THE HONOURABLE MICHAEL JEROME YOUNG, MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent THE HONOURABLE LIONEL FROST BOWEN, ATTORNEY-GENERAL OF AUSTRALIA Second Respondent COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE - Third Respondent DIRECTOR OF PUBLIC PROSECUTIONS Fourth Respondent COMMONWEALTH OF AUSTRALIA Fifth Respondent CORAM: FOX, WILCOX and FRENCH JJ PLACE: SYDNEY DATE: 4 MARCH 1988 REASONS FOR JUDGMENT WILCOX and FRENCH JJ: This proceeding, which comes to this Court upon appeal from Beaumont J, is the latest round ina spate of litigation regarding the return of the appellant, Jens Ingo Lutz Schlieske, to the Federal Republic of Germany. Mr Schlieske, a native of the Federal Republic, entered Australia from Manila, in the Phillipines, on 29 June 1986. At that time he produced a Swiss passport issued in the name of another person and endorsed with an Australian visa. He was granted a temporary entry permit valid for six months but, by virtue of s.16(1)(b) of the Migration Act 1958, the effect of Mr Schlieske's use of a false passport was that he was deemed upon entry to be a prohibited non-citizen. As such, by s.18 of that Act he was liable to deportation. The extradition proceedings On 6 February 1985 a warrant for the arrest of Mr Schlieske had been issued by a West German court. The warrant alleged a number of offences involving the importation into Germany, or sale, of hashish. On 28 July 1986 a warrant for his apprehension was issued by an Australian magistrate under the Extradition (Foreign States) Act 1966. Two weeks later, on 12 August 1986, Mr Schlieske was arrested by officers of the Australian Federal Police. He has remained in custody, under one warrant or another, since that day. The extradition proceedings came before a magistrate who, on 26 September 1986, ordered the appellant's release from custody. The magistrate held that the material before him did not meet the requirements of the then regulations governing extradition from Australia to the Federal Republic. Upon their proper construction, the magistrate held, the regulations required the tender of evidence of guilt. Upon review in this Court a single judge quashed the magistrate's order but, upon appeal by Mr Schlieske against that decision, a Full Court restored the decision of the magistrate: see Schlieske v Federal Republic of Germany (1987) 71 ALR 215. In the meantime, in October 1986, two relevant events occurred. First, on 3 October 1986 Mr J R Tuchin, a delegate of the then Minister for Immigration and Ethnic Affairs, made a deportation order against Mr Schlieske pursuant to s.18 of the Migration Act. The order merely provided that Mr Schlieske "be deported from Australia". No destination was specified. No immediate attempt was made to serve or to execute this order, the view being taken that it should be held unserved pending finalization of the proceedings for extradition. Secondly, on 15 October, the regulations governing extradition from Australia to the Federal Republic were amended so as to eliminate the requirement for evidence of alleged offences. tn er eremisetmnter a mmeminrernt ne Se = ee Following the decision of the Full Court, which was handed down on 3 March 1987, fresh extradition proceedings were taken. In presenting the matter to the magistrate, the representative of the Federal Republic rightly proceeded on the basis that there was no longer any necessity for him to tender proof of the commission of the alleged offences. But the representative also omitted to tender either the warrant issued pursuant to s.16(1)(b) of the Extradition (Foreign States) Act or the notice of requisition issued by the Attorney-General under s.15(1)(b) of that Act. Although the magistrate made an order committing Mr Schlieske to prison to await the warrant of the Attorney-General for his surrender, on review in this Court Burchett J overruled that decision. In a judgment delivered on 3 July 1987, which is not reported, his Honour held that the failure to tender the Attorney-General's notice was fatal to the application. There was no appeal from that decision. The arrangements for deportation During the period immediately preceding the making of the deportation order, and between that date and 3 July, there ; had been contact between officers of a number of Australian Government departments regarding Mr Schlieske. These departments included the Department of Immigration and Ethnic Affairs, the Attorney-General's Department and the Office of the Director of Public Prosecutions. Details of the exchanges are set out in the judgment of Beaumont J; there being an issue before his Honour as to whether, during this period, officers of the Commonwealth were using, or proposing to use, the deportation power under the Migration Act as a "disguised extradition". It is not necessary to repeat, or even to summarise, that account because the appellant does not now contest the validity of the deportation order and he makes no challenge to the finding of Beaumont J that, in the period up to 3 July, there was no attempt improperly to implement that order. However, the situation changed after 3 July. Although there was discussion about the possibility of a third extradition application, the Federal Republic did not make any such application. Instead, there was discussion between officers of the West German Embassy in Canberra and Australian Government officers about the immediate implementation of the deportation order, the intention being that Mr Schlieske would be deported back to the Federal Republic. In quick succession officers of the Department of Immigration and Ethnic Affairs, notably Mr R W Robilliard and Mr G Clarke, took a number of steps. They arranged for the deportation order to be served on Mr Schlieske on 9 July 1987 and for the West German Consul in Sydney, on 16 July 1987, to issue a temporary travel permit, permitting Mr Schlieske to return to Germany not later than 19 July. They booked a seat for the appellant upon a Lufthansa German Airlines flight departing from Sydney on 18 July. Also on 16 July, Mr Robilliard issued a direction, under 5.22 of the Migration Act, to Lufthansa requiring it to receive Mr Schlieske on board its flight for Frankfurt leaving Sydney on 18 July. Section 22 provides: "22. (1) The master, owner, agent or charterer of a vessel shall, on being required in writing by an authorized officer so to do, receive a deportee on board for conveyance to a place specified in the requirement, being a place to which the vessel is bound, and also receive on board, for such time as is required by the authorized officer, a person charged with the custody of the deportee. Penalty: $1,000. (2) For services rendered in pursuance of a requirement under sub-section (1) in connection with the conveyance of a deportee to a place outside Australia, the Commonwealth is liable to pay-- (a) in the case of services rendered in respect of the deportee--the reasonable passage money and other charges for those services, less any amount paid by the deportee towards, or credited by reason of the application of a ticket towards, that passage money and those charges; and (b) in the case of services rendered in respect of the person charged with the custody of the deportee--reasonable passage money (if any) and other charges for those services. (3) An officer shall not make a requirement under sub-section (1) unless he is satisfied on reasonable grounds that the deportee will be permitted to land at the place specified in the requirement, and it is a defence to a prosecution for a contravention of that sub-section if the defendant proves that, if the requirement had been complied with, the deportee would not have been permitted to land at the place specified in the requirement." At about this same time arrangements were made by the West German government for two German police officers to come to Australia, the intention being that they would meet Mr Schlieske when he boarded the Lufthansa flight in Sydney and would accompany him back to Frankfurt. The relevant officers of the Department of Immigration and Ethnic Affairs became aware of these arrangements. ren The present proceedings In the event, Mr Schlieske did not leave Australia on 18 July 1987. The reason was that, on 17 July 1987, an Application (No. G.324 of 1987) was filed in this Court and, on the same day, Gummow J ordered, without opposition, that the Minister be restrained from executing the deportation order until 12 August. Gummow J fixed 11 and 12 August for the final hearing of the matter. On 3 August a second proceeding (No.G.361 of 1987) was commenced. In that proceeding Mr Robilliard was named as the sole respondent, the applicant challenging his order to Lufthansa under s.22 of Migration Act. Beaumont J commenced to hear both matters on 11 August but, during the hearing, there was an application made to add further respondents in matter G.324 of 1987. Consequently, the hearing was adjourned. It was resumed in December, when further amendments were sought. As the proceeding was finally constituted the respondents in matter G.324 of 1987 were the Minister for Immigration and Ethnic Affairs, the Attorney-General, the Commissioner of the Australian Federal Police, the Director of Public Prosecutions and the Commonwealth of Australia. As already indicated, Beaumont J held that nothing which had been done before 7 July 1987 could properly be described as an attempt to use the deportation power for an improper purpose, that is as a "disguised extradition". But his Honour did hold that the decisions taken by Mr Robilliard and Mr Clarke in relation to deportation "were taken by them not only in the knowledge that the applicant would be delivered into the custody of the German Government but also in co-operation with that Government. [In other words, the conduct of Mr Robilliard and Mr Clarke, viewed objectively, is consistent only with an intention, on their part, to deliver the applicant into the custody of the German Government. This, in my view, is a 'sham' extradition and, as such, is an abuse of the deportation power". However, his Honour went on to reject the contention that Mr Schlieske could not properly be deported to West Germany: "On behalf of the respondents, much reliance is placed upon the circumstance that the applicant's travel papers permit him to enter only Germany. But it does not follow that the applicant should be directed to a Lufthansa flight to be accepted into the custody of the German police officers. It only means that it is open to the Minister to choose Germany as the applicant's destination. Lufthansa is not the only airline flying to Germany; nor is it necessary that the applicant be handed over to officers of the German police force. Put differently, it is possible for the Minister, in good faith, to deport the applicant to Germany without necessarily delivering him into the custody of the German Government at Sydney airport." In matter G.361 of 1987 Beaumont J made an order restraining Mr Robilliard from requiring Lufthansa to receive the applicant on board any of its aircraft. No appeal has been brought from that order which was, of course, made only against Mr Robilliard, the sole respondent to that proceeding. Beaumont J dismissed matter G.324 of 1987. His Honour apparently understood this proceeding as raising merely what he called the "general claim" of the appellant not to be deported to the Federal Republic. Having held against that claim, he dismissed the Application, without referring to the possibility of making a more limited order. The appellant does not quarrel with the findings of fact made by Beaumont J. But he contends that, having regard to those findings, his Honour should have granted at least partial relief in matter G.324 of 1987. Moreover, before us he renews his argument -- and this is his major contention —- that, under the circumstances of this case, the Minister for Immigration and Ethnic Affairs is precluded from deporting him to the Federal Republic, because to do so would be to effect a "disguised extradition". The concept of "disguised extradition" Section 18 of the Migration Act 1958 authorizes the Minister to order the deportation of prohibited non-citizens. That authorization is an expression of the power of the Parliament of the Commonwealth to make laws with respect to ummigration and emigration (Constitution s.51(xxvii)). The authority so conferred is not expressly qualified or conditioned in any way. Like all statutory discretions, however, it is to be exercised in accordance with the scope and purposes of the enactment which is its source: Shrimpton v The Commonwealth (1945) 69 CLR 613 at p.620 (Latham Cd), 10. Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at p.505 (Dixon J), Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 at p.23 (Mason J) and R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at p.49. Such constraint may, like that considered in Murphyores, be a fragile foundation for building a conclusion that certain policy considerations and reasons fall within the scope of the Act and that others are excluded (see Murphyores at p.24). And it is the case that the discretion to deport non-citizens has traditionally been treated as a very wide one:- "The right of a nation to expel or deport foreigners, who have not been naturalized or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country." -- Fong Yue Ting v The United States (1893) 149 US e368 at 5.104 cited with approval by Griffiths CJ in Robtelmes v Brenan (1906) 4 CLR 395 at p.403. The amplitude of the relevant statutory powers, both in Australia and in the United Kingdom, has tempted governments to use them not merely to deport undesirable aliens, but to effect their delivery into the hands of friendly foreign governments for trial on criminal charges or for other reasons which, on the face of it, have nothing to do with regulating the movement of persons to and from the deporting country: see generally O'Higgins -_Disguised Extradition: The Soblen Case (1964) 27 Mod L Rev 521 at pp-522-525. In the early years such conduct was sanctioned by the courts but, in recent times and corresponding with the developing willingness of the courts to confine the exercise 11. of statutory powers to the purpose for which they were granted, the courts of both countries have generated a distinction -- which is difficult of practical application -- between a deportation for the purpose of extradition ("disguised extradition") and a deportation for immigration control purposes which incidentally effects a de facto extradition. The early view is illustrated by some cases which arose during the First World War. At that time the United Kingdom and France had an agreement under which the United Kindom undertook to return to France, French subjects who were of military age and liable to military service. It was pursuant to that agreement that the Secretary of State for Home Affairs made an order that the Duke of Chateau Thierry, a French subject who had resided in the United Kingdom for some years, should be deported. The deportation order, which was made under the Aliens Restriction Act 1914 and the Aliens Restriction (Consolidation) Order 1916, did not specify any destination. However, by virtue of ancillary powers, the Secretary could detain the deportee and place him in detention upon a selected ship until that ship left the United Kingdom. By that device, in practical terms, his destination could be determined. It was common ground in the litigation that followed that it was the intention of the Executive to send the Duke to France. The Divisional Court quashed the order on the basis that it was in substance, if not in form, an order for deportation to a specified destination, so that it was beyond statutory authority. The Court of Appeal reversed the 12. Divisional Court, on the basis that the order was good on its face: see R v Secretary of State for Home Affairs; Ex parte Duke of Chateau Thierry [1917] 1 KB 922. The Court eschewed consideration of purpose. At p.930 Swinfen Eady LJ said: "If it were intended to do something illegal under a valid order, that would be good ground for restraining and preventing the illegal act, but not for quashing a valid order. A Secretary of State is not required to justify in a Court of law his reasons for making a deportation order in the case of an alien." See also Pickford LJ at pp.932-933 and Bankes LJ at p.935. The Court held that the Secretary could select a ship upon which the deportee was to be placed and detained and, by that selection, effectively determine his destination. While it said that the right to detain would cease when the ship left the United Kingdom, the extra territorial liberty so recognised would have been of only academic interest to all but the strongest swimmers. In a similar case, also involving a French subject of military age, Rv Chiswick Police Station Superintendent; Ex Parte Sacksteder [1918] 1 KB 578, the Court followed its decision in the Duke of Chateau Thierry. It held that there was no power under the statute to order deportation to a specific destination but that "it did give a power which we thought enabled the Secretary of State indirectly to attain the object." (at p.585). Although prepared to go behind a sham -- see pp.586 and 589 -~ an order made for the collateral purpose of carrying out the agreement between France and the United Kingdom and conveying the deportee to France was not invalid: see pp.587 and 589. 13. An arrangement similar to that between the United Kingdom and France existed in the First World War between Australia and Italy, whereby Australia agreed to assist the Italian Government as far as possible in calling up Italian reservists and conscripts from Australia. That arrangement gave rise to Ferrando v Pearce (1918) 25 CLR 241, a case in which the High Court followed the Court of Appeal in Chateau Thierry and held that the power to deport aliens conferred upon the Minister for Defence under the War Precautions Act 1914 was not exceeded by an order for deportation, made in furtherance of the agreement, in connection with which ancillary powers were to be used to ensure that the deportee was placed on a ship bound for Italy. The statute did not authorize deportation to a particular destination but, according to Barton J at p.249, if the Minister chose a ship bound for Italy, that did not make the deportation an abuse of his power. In the joint judgment of Isaacs and Rich JJ there was some recognition of a relevant statutory purpose, relating to the defence of Australia, reference being made to the use of the power to repatriate conscripts to Italy in order to swell "the ranks of those fighting for the common cause of this Empire and its allies". Higgins J saw Chateau Thierry as establishing that the motive upon which the Minister's order was based did not affect its validity. The Minister, he said, was assisting the Italian authorities as far as he legally could and no further. And at p.263 Gavan Duffy J said: "The execution of a legal authority is not illegal merely because the effect of such execution may be to bring about something not itself covered by such authority. This is not the case of the use of a power for an improper purpose. If the power of deportation were 14. given as ancillary to the effecting of some purpose, it could only be used for the effecting of that purpose, but here the power is given to be exercised at the Minister's discretion, and the purpose which he hopes to attain by its exercise is immaterial." In Znaty v Minister of State for Immigration (1972) 126 CLR 1, the High Court applied to the exercise of the discretion under s.18 of the Migration Act a similar approach to that taken in Ferrando v Pearce. It expressly differed from the earlier decision only insofar as that decision might have suggested that the power to restrain a deportee was inoperative outside territorial limits. At p.12 Walsh J, with whom McTiernan and Owen JJ agreed, said: ",.. the statutory regulation of deportation may include provisions for extra-territorial constraint, because these may be necessary in order that the power to deport may be rendered effective ..." However, Znaty is notable for its implicit shift from the view that ministerial purpose was irrelevant to the propriety of the exercise of the power. While the judgment of Walsh J (in effect the majority judgment) referred with evident approval to Chateau Thierry and Sacksteder, it also invoked R v Governor of Brixton Prison; Ex Soblen [1963] 2 QB 243. There Lord Denning MR, with whom Donovan LJ agreed in his own reasons for judgment, had adverted to two relevant principles. The first was that officers of the Crown could not, and must not, surrender a fugitive criminal to another country at its request except in accordance with the Extradition Act 1870. The second principle was that the Secretary of State could deport an alien and put him on board 15. a ship oi aircraft bound for his own country if he considered that course to be conducive to the public good. Denning said: On the facts of the case, that the Home Secretary was using the power of deportation How are we to decide between these two principles? It seems to me that it depends on the purpose with which the act is done. If it was done for an authorised purpose, it was lawful. If it was done professedly for an authorised purpose, but in fact for a different purpose with an ulterior object, it was unlawful. If, therefore, the purpose of the Home Secretary in this case was to surrender the applicant as a fugitive criminal to the United States of America because they had asked for him, then it would be unlawful. But if the Home Secretary's purpose was to deport him to his own country because the Home Secretary considered his presence here to be not conducive to the public good, then the Home Secretary's action 1s lawful. It 1s open to these courts to enquire whether the purpose of the Home Secretary was a lawful or an unlawful purpose." an ulterior purpose. All members of the Court of Appeal rejected the proposition that deportation procedures proposed in a particular case could not lawfully be used if their effect the Court could find no evidence At p.302 Lord for would be to send a fugitive criminal to a place where he would be liable to prosecution: LJ at p.307 and Pearson LJ at p.312. matter in this way: Ly ... I think that the fundamental defect in this argument is that it concentrates attention on what will happen when the alien arrives at the foreign country and then relates that consequence back, so that the consequence is regarded as if it existed from the outset as the purpose of the operation, see Lord Denning at p.301, Donovan Donovan LJ expressed the 16. and thus gives it its true quality. In my opinion, the fact that the present applicant will serve an existing sentence of imprisonment, if he is sent to the United States, does not mean that an act which otherwise would be deportation and nothing else becomes instead not deportation but the surrender of a fugitive criminal. To hold otherwise would be to give assent to the proposition that the quality of an act is determined by its consequence, which is obviously untrue; otherwise cause would become the same thing as effect. There may, it is true, be no practical difference from the applicant's point of view between a deportation which gives the United States authorities the power to make him serve his sentence, and an illegal surrender having the same effect. But that cannot involve that in law the two things must be regarded as the same. If, therefore, this deportation order is to be regarded as invalid, it must be for some other reason than the consequence to which it will lead." The improper purpose principle, as enunciated by Lord Denning in particular, seems to be at odds with the Court of Appeal's earlier decisions in Chateau Thierry and Sacksteder: see O'Higgins Disguised Extradition: Deportation or Extradition (1963) CLJ 10 at pp.11-12. But it is consistent with the current general principles of administrative law. It has been recognized as applicable in Australia. Thus, in Barton v The Commonwealth (1974) 131 CLR 477, Barwick CJ said at pp. 483-484: "In contrast to extradition as a means of surrender, most countries exercise a right of expulsion of persons whose continued presence in the country is considered undesirable. Where this right of expulsion is the subject of statutory regulation, as it usually is in common law countries, there are limitations upon its exercise, often involving and limiting the purpose which may prompt the expulsion. At times, questions may arise as to whether the actual purpose of the expulsion is impermissible and whether in truth an unauthorized, or what a writer has called 17. 'disguised extradition' ... is on foot. Clearly, a power of expulsion, as for example under migration or immigration laws, is no equivalent of a power to extradite. It is an unsatisfactory practice, from an international as well as a domestic point of view, to employ a power of expulsion as such a substitute. Further, an executive, being bound by statute as to the occasions for and purposes of expulsion, cannot validly agree to employ that power as a general equivalent to a power to extradite, however much on occasions the expulsion may serve as an extradition in an individual case because of its circumstances. There are obvious objections to the use of immigration or expulsive powers as a substitute for extradition: ..." In the same case, Mason J at pp.503-504 said: "The Australian Government in its request has drawn attention to the provisions of the Migration Act which might be applied in the case of an alien who is a Brazilian subject. This reference should not, in my view, be taken as an indication that the Government regards the powers conferred by that Act as capable of an exercise otherwise than in accordance with what has been said by this Court in Znaty v Minister of State for Immigration. A distinction is to be observed etween extradition and deportation and powers conferred by the Migration Act can be exercised only for the purposes authorized by that Act." In Salemi v MacKellar (No.2) (1977) 137 CLR 396, Barwick CJ at p.405 referred in passing to the possibility of a purported exercise of the deportation power for "purposes alien to the Act and what it involves". Gibbs J at p.420 spoke of s.18 as giving the Minister "an unconditional right to order the deportation of a prohibited immigrant"; but that is not to say that his Honour would have thought the power uncontrolled, at least by the scope and purposes of the Migration Act. Stephen J, at pp.446-447, said: 18, "He need give no reasons for his decision and unless it can be made to appear that he must have arrived at that decision for reasons extraneous to the exercise of the power of deportation his decision will not be examinable in the courts." And, at p.457, Murphy J also adverted to the requirement that the power to deport be exercised bona fide and for the purposes for which it was created. In Utter v Cameron [1974] 2 NSWLR 50 Lee J, 1n the Supreme Court of New South Wales, applied Soblen and Znaty in holding that the Minister for Immigration was not precluded from deporting to the United States of America a citizen of that country who had escaped from a prison in California and entered Australia under a false passport. Lee J accepted that the Court could examine the purpose of the Minister in ordering deportation but he held that, upon the facts, there was nothing to indicate that the Minister was not exercising in good faith his deportation power or that he was effecting an unlawful extradition. Application of the principle of proper purpose The relevant principle is that the power to deport a prohibited non-citizen, while wide and unqualified by any statutory condition, must be exercised for the purposes of the Migration Act, that is to say, in aid of the sovereign right of this country to determine who shall be permitted to enter it and who should be excluded therefrom. 19. Of course, in considering whether to exercise that power, the Minister may have regard to a wide range of matters personal to the particular prohibited non-citizen, such as that person's criminal record. It is less clear that the Minister may have regard to mere allegations of criminality. For the Minister to assume, from the mere circumstance that allegations had been made, that the person was in fact guilty of the alleged offences would be unreasonable. Such an assumption would overlook the possibility that the person may ultimately be found to be not guilty of the alleged offences. And, if the Minister is careful not to make any such assumption, it is difficult to see that the knowledge that allegations have been made, which may or may not be well-founded, can usefully contribute to the decision whether to deport. [We emphasize that our comments refer to mere allegations. If the Minister has information which tends to support the truth of the allegations, that information is relevant to the decision whether to deport and -- subject to the requirements of natural justice -- may be taken into account. ] But, whatever the relevance of allegations to the question whether the prohibited person is one who ought to be deported from Australia, it is plainly extraneous to the decision to deport a person, and to deport that person to a particular country, that the person 1s wanted by the government of that country upon criminal charges. It is not one of the purposes of the Migration Act to aid foreign powers to bring fugitives to justice. There is a distinct head of 20. constitutional authority -- namely the external affairs power -- and a distinct mechanism -- the extradition legislation -- under which that object may be pursued. As to the statutory powers in aid of the deportation process which are conferred by s.22 of the Act, those powers must also be used only for their proper purpose, namely to give effect to a deportation order in force. The foregoing does not mean that the Minister is precluded from deporting a person to a country where, to the Minister's knowledge, the person is likely to face criminal proceedings. Having regard only to immigration considerations, deportation of the person to that country may be a proper course; most obviously so in a case, such as the present, in which the proposed deportee is a national of that country and has travel documents valid only for entry into that country. As s.22(3) makes plain, the question whether a proposed deportee will be permitted to enter a particular country of destination is relevant to the exercise of the deportation power. It may be that a government will choose to deport a fugitive to a country seeking to extradite him, and will do so in the face of the opportunity to deport to another country which is willing to receive him and to which he is willing to travel. Such a choice is not necessarily unlawful but it may, according to the circumstances of the case, give rise to an inference that the choice has been actuated by an improper 21. purpose. In drawing that inference, the court may take into account official conduct outside that authorized by statute, for example the communication of flight arrival details. The Court must be vigilant to ensure that procedures established by extradition laws to protect individual rights are respected and followed. The inconvenience which attends compliance with those procedures is a small price to pay to maintain the primacy that the liberty of the individual should have in our legal system. In the present case a finding has been made that particular actions taken by officers of the Department of Immigration and Ethnic Affairs in July 1987 amounted to a "sham" extradition; that is that, although the officers purported to be acting in the enforcement of the Migration Act, they were at that time in fact actuated by the purpose of delivering Mr Schlieske to the West German authorities in order that he might be tried upon the charges pending against him in that country. That finding does not mean that Mr Schlieske cannot now be deported to the Federal Republic. It does mean that, in implementing the deportation order, the Minister and his officers must pursue only the purpose of deportation. If the decision is made that it is proper to deport the appellant to the Federal Republic, the steps to be taken should be no more than are appropriate to that purpose. Section 22 of the Migration Act envisages that a deportee may be escorted out of Australia by an authorized officer. The apparent purposes of this provision are, firstly, to ensure that the deportee does in fact leave Australia and, secondly, prem ee 22. security; the deportee may be of a violent disposition. Ina case where, for these reasons, it is deemed necessary to have a particular deportee escorted by an authorized officer it would not be a valid objection to that course that the deportee is wanted on criminal charges in the country of destination. But if, having regard to all of the circumstances other than the fact that the deportee is so wanted, it would not be necessary to provide an escort, it would be objectionable to provide an escort the better to ensure that the deportee arrives in that country and there' faces the criminal charges. And, even if a decision is taken that a deportee should be escorted to the country of destination, it seems to us to be no part of the exercise of the deportation power for Australian officers to arrange for the surrender of the deportee to the authorities in that country. The task of the Australian escorting officer is complete when the deportee leaves the aeroplane in the country of destination. The golden rule is that the Australian authorities are entitled, notwithstanding their knowledge that a particular deportee is wanted in the country of destination, to do everything which is necessary for the enforcement of the Migration Act and the proper implementation of the deportation order. But they are not entitled to go beyond that, and in purported exercise of powers under that Act, to take steps whose only purpose is the bringing to justice of the deportee in a foreign country. At that stage the Australian authorities would not be exercising deportation powers; they would be involved in an unlawful extradition. 23. Extradition to the Federal Republic of Germany It follows from what we have said that the claim of the appellant to an order restraining the Minister for Immigration and Ethnic Affairs from deporting him to the Federal Republic of Germany cannot be sustained. It is open to the Minister to determine that this is a proper course of action, provided that, in making that decision, he does not do so for the purpose of surrendering the appellant to the prosecuting authorities of that country. The appellant's case for restraint against deportation to the Federal Republic of Germany is put upon two bases: 1. That the ministerial purpose was so contaminated by the unlawful object of surrender to the Federal Republic that no lawful deportation to that country could now be effected. 2. In the alternative the risk of such deportation serving an unlawful purpose was so great that as a matter of discretion is should be restrained. 24. The first of these propositions is, we think, untenable. A power once applied to an improper purpose does not thereby vanish. The power remains to serve legitimate purposes. As to the second approach, the Court considers that the restraint sought would be a disproportionate response to what were the unlawful activities of two subordinate officers in the implementation of the deportation order. Implementation of the deportation order However, we are of the opinion that, having regard to his findings of fact, Beaumont J should have granted some relief in matter G.324 of 1987, in connection with the implementation of the deportation order. The order made in matter G.361 of 1987 only bound Mr Robilliard, one of a number of officers who have the authority to make a requirement under 5.22 of the Migration Act. We were told by counsel for the respondent that other officers of the Department would also regard themselves as bound by this order, but it seems to us that this is not a satisfactory way for the matter to be left. If the appellant has established a case for relief, he is entitled to appropriate orders sufficient to protect his rights. He should not be required to rely upon an unenforceable assurance as to the future conduct of other persons. But, secondly, it seems to us that the order against Mr Robilliard does not accurately reflect the interest to be safeguarded. The order merely restrains Mr Robilliard from requiring Lufthansa to receive Mr Schlieske on board any of its aircraft. The assumption underlying the order is that any 25. requirement under s.22 of the Migration Act, directed to Lufthansa, is necessarily unlawful as effecting a disguised extradition. As his Honour found, the requirement made on 16 July 1987, taken in conjunction with the arrangements then made for Mr Schlieske to be received into the custody of two German police officers upon embarkation, constituted a disguised extradition. But it does not follow that Lufthansa may never be used to deport Mr Schlieske. Although, as we understand the position, Lufthansa is owned by the West German Government, to deliver the appellant to a plane operated by Lufthansa is not to surrender him to law enforcement officers of the West German Government. Lufthansa is a normal commercial airline. The objection to the arrangements proposed last July was not that Lufthansa was to be used but the fact that the Australian authorities were using their powers under the Migration Act for the purpose of delivering Mr Schlieske into the custody of West German police officers, There would have been the same objection if Qantas had been used for the same purpose. It is neither practical nor desirable for this Court to attempt to spell out in its order what steps may or may not be taken in conjunction with any deportation of the appellant. The Minister is entitled to make decisions upon those matters and, in making them, to have regard to all of the relevant circumstances. We are not necessarily aware of all current circumstances and we certainly cannot foresee all of the events which might arise during the course of any deportation. We think that the proper course is to make an order which 26. reflects the general principle we have discussed; an order in general terms, restraining the respondents, in the event of the deportation of the appellant from Australia to the Federal Republic of Germany, from taking steps, in the exercise of their statutory powers, for any purpose other than the removal of the appellant from Australia. Strictly, an additional order restraining the respondents from delivering the appellant into the custody of any officer or agent of the Goverment of the Federal Republic is unnecessary. On no view could such an action serve the purpose of mere deportation. However, in view of the arrangements to this effect which were actually made last July, we think that the appellant is entitled to have a specific order spelling out this restraint. Costs In relation to costs, we think that the appropriate course is to make no order. The appellant has failed in his major submission in this Court, the submission that he may not be returned to West Germany. But for the fact that he wished to press that case, it may not have been necessary for the appeal to proceed. On the other hand, the appellant has succeeded in persuading us that some relief should have been granted in matter G.324 of 1987 and we propose to make some limited orders in that proceeding. Under those circumstances it would be wrong to require the appellant to pay the costs of the appeal. 27. I certify the twenty-six (26) preceding pages to be a true copy of the Reasons for Judgment of their Honours Justice Wilcox and Justice French. Associate: Vis mé~—! Date: 4 March 1988 Mr G G Masterman QC with Mr I Shearer Counsel for the Appellant: Solicitors for the Appellant: John Bettens & Co Counsel for the Respondents: Mrs P Fleming QC with Mr P Dwyer Solicitors for the Respondents: Australian Government Solicitor Date(s) of hearing: 16 and 17 February 1988