Ragogo v Minister for Immigration & Ethnic Affairs [1995] FCA 740

CATCHWORDS

IMMIGRATION - Judicial review of decision of Immigration Review Tribunal - Tribunal decided it had no jurisdiction to hear application for review - Jurisdiction depended on whether illegal entrant had been lawfully arrested - lawfulness of arrest - arrest for purpose not provided for in Migration Act 1958.

EVIDENCE - Whether evidence not before Tribunal should be admitted in judicial review proceedings.

Migration Act 1958 (Cth) s92

Migration (Review) Regulations reg 9

Ruangrong v Minister for Immigration and Ethnic Affairs (1988) 14 ALD 773

Attorney General (NT) v Hand (1988) 16 ALD 318

Attorney General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536.

Committee of Direction of Fruit Marketing v Australian Postal Commission (Delegate of) (1978) 25 ALR 221

Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 104

Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363

Minister for Immigration, Local Government and Ethnic Affairs v The Immigration Review Tribunal (1993) 41 FCR 71

No. NG 719 of 1994

RAGOGO -v- MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

MOORE J

SYDNEY

18 September 1995

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 719 of 1994

)

GENERAL DIVISION )

BETWEEN: SALIMA RAGOGO

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

First Respondent

THE IMMIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: Moore J

PLACE: Sydney

DATE: 18 September 1995

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The decision of the Immigration Review Tribunal of 8 April 1994 that it had no jurisdiction to hear and determine the application for review is set aside.

2. The first respondent pay the applicants' costs.

3. Liberty to apply.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 719 of 1994

)

GENERAL DIVISION )

BETWEEN: SALIMA RAGOGO

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

First Respondent

THE IMMIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: Moore J

PLACE: Sydney

DATE: 18 September 1995

REASONS FOR JUDGMENT

This is an application under s5 of the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") filed on 21 October 1994 for an order of review of a decision of the Immigration Review Tribunal ("the Tribunal"). The Tribunal's decision was that it had no jurisdiction to determine the application that had been made to it.

On 18 December 1992 an application was made by Mr Ragogo for a December 1989 (temporary) entry permit. That application was refused on 19 March 1993 by a delegate of the Minister for Immigration, Local Government and Ethnic Affairs.
On 16 April 1993 an application for review was made to the Tribunal. At the time the application for review was made, the Migration (Review) Regulations provided that the Tribunal was to review reviewable decisions though subject to the following provision limiting the power of the Tribunal to undertake such a review. Regulation 9(2) provided:

"(2) In the case of a decision to refuse to grant a December 1989 (temporary) entry permit or a December 1989 (permanent) entry permit, subregulation (1) applies only if the applicant for the permit:

(a) was a prohibited non-citizen on or before 18 December 1989; and

(b) had not been arrested under section 92 or 93 of the Act:

(i) on or after 10 December 1990; and

(ii) before lodgment of the application for the permit."

On 8 April 1994 the Tribunal published a decision and reasons for decision. Its decision was that it had no jurisdiction over the application for review. The Tribunal had concluded that Mr Ragogo had been arrested in circumstances that precluded, by operation of reg 9(2)(b), review by the Tribunal. The operation of reg 9 had not been canvassed at the hearing by the Tribunal nor subsequently raised with Mr Ragogo or the applicant to the Tribunal, Mr Clarke. However no contention is made in these proceedings that there was, in this respect, any procedural unfairness.

Notwithstanding the Tribunal's decision that it had no power to deal with the application, it nonetheless did so. It did in the sense that it set out the legislative framework by
reference to which a competent application would be considered then, after expressing its view about the operation of reg 9, said:

"However, for the sake of completeness, the Tribunal will proceed to set out the evidence presented to it and the findings with respect to the merits of the case."

This it did in an apparently comprehensive way and decided that the refusal to grant Mr Ragogo a December 1989 (temporary) entry permit would not cause Mr Clarke, who was the relevant Australian permanent resident, extreme hardship or irreparable prejudice: see reg 131A(1)(d)(v). It expressed this conclusion in the following way:

"The Tribunal finds that the compassionate ground is not satisfied."

The applicant was not informed of the Tribunal's decision till September 1994.

It was common ground in these proceedings that Mr Ragogo was arrested by a departmental officer on 9 December 1992. In issue was whether it was an arrest authorised by s92 of the Migration Act 1958 and whether, as a consequence, the Tribunal had power to deal with the application made to it. No evidence was led before the Tribunal concerning the circumstances of the arrest. This is not surprising given that the potential effect of reg 9(2) was not raised with Mr Ragogo or Mr Clarke. Evidence concerning the arrest was sought to be led in these proceedings but was objected to by counsel for the Minister. I admitted affidavits of Mr Ragogo subject to objection and Mr Ragogo was not cross-examined. The Minister tendered the departmental file but otherwise called no evidence. The parties made submissions both at the hearing and in subsequent written submissions on the question of whether the further evidence should be admitted. Counsel for the Minister made passing reference to the application as one properly brought under s138 of the Migration Act 1958 rather than s5 of the ADJR Act but in a further written submission accepted that the application was one brought under the ADJR Act.

In these proceedings, the applicant contends that the Tribunal has made an error of law and thus can be taken to be relying on the ground identified in s5(1)(f) of the ADJR Act. On at least two occasions the Court has refused to admit evidence containing material that was not before the decision maker in circumstances where an error of law was alleged. The first was a judgment of Davies J in Ruangrong v Minister for Immigration and Ethnic Affairs (1988) 14 ALD 773 though the application did not raise directly the ground in s5(1)(f). It did, however, in Attorney General (NT) v Hand (1988) 16 ALD 318 in which Wilcox J refused to admit evidence containing material that had not been before the decision maker and, in doing so, referred to Ruangrong (supra). Both authorities were referred to by Lockhart J in Attorney General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536. His Honour said at 540:

"Where the ground relied upon is error of law (s 5(1)(f)) the trend of judicial opinion is that the evidence before the Court is confined to the material before the decision-maker: Attorney-General (NT) v Minister for Aboriginal Affairs (unreported, Federal Court of Australia, Wilcox J, No G235 of 1988, 3 August 1988), p 13; Ruangrong v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Davies J, 29 March 1988), p7.

The primary ground of attack upon the first respondent's decision in this case is "that the decision was not authorised by the enactment in pursuance of which it was purported to be made": s 5(1)(d) of the Judicial Review Act.

The determination of whether an action taken falls within the power conferred will often centre on issues of statutory interpretation. The court's task in such a case is essentially that of resolving a legal question, and, where that is the extent of the issue, there will ordinarily be no necessity for adducing material which was not before the decision-maker . Where however there is a question of mixed fact and law, that is, where there is an issue both of statutory interpretation and the requisite factual situation which will bring the statute into operation, there may be a need to adduce additional material. That evidence would be directed to establishing that on the true facts of the case, regardless of the material that was actually before the decision-maker the decision made was one which could not have been lawfully made. In this case the applicants seek to establish that the true fact of the matter is that certain roads within the relevant area were in fact public roads within the meaning of s 11(3) and could not therefore lawfully be included within a grant of land under the Act. In my opinion it is open to the applicant to establish that ground by adducing evidence which was not before the first respondent when he made his decision.

The applicant also relies upon s 39B of the Judiciary Act to support the issue of writs of prohibition and certiorari where evidence of this kind can, in my opinion, be led.

I agree with the analysis of this question of the admissibility of evidence in judicial review proceedings by Wilcox J in Attorney-General (NT) v Minister for Aboriginal Affairs (supra) subject to one reservation, namely, whether upon a challenge under the Judicial Review Act to a decision on the ground of error of law the evidence is confined to the material before the decision-maker. It is not necessary to decide this question in this case to I prefer to leave it open."

It is plain from this passage that there is no settled principle that the Court is precluded from receiving into evidence material not before the decision maker when the ground in s5(1)(f) of the ADJR Act is raised. In the present case the Tribunal refers to the material on which it based its decision concerning the applicant's arrest in the following way:

"It would also appear from the Departmental file that the Principal was detained in custody under Section 92 of the Migration Act on 9 December 1992, prior to his making the application. As the Principal was lawfully arrested under Section 92, the Tribunal does not in fact have jurisdiction over the application for review as provided for in Regulation 9(2)(b) of the Migration (Review) Regulations."

The material on the file directly relating to the arrest is firstly a document which is a notice, in effect, calling upon Mr Ragogo to show cause why the Minister should not require him to leave Australia or deport him. It was dated 9 December 1992, the day of the arrest, and a handwritten notation on the document records that it was served on the same day. At the same point in the file is a "post location leaflet" for illegal entrants advising them, inter alia, that they may be able to apply for an entry permit and noting that if they have been arrested, they may be kept in custody. There are also on the file a request dated 9 December 1992 for an extension of time to lodge an application for an entry permit and a document headed "Undertaking to abide by conditions of release". That document was a typed document, was dated 9 December 1992 and was signed by the applicant and contained an admission by the applicant that he was "an illegal entrant/deportee pursuant to section 14 (3) of the Migration Act 1958". It also contained undertakings concerning reporting conditions, that he would not work and would remain resident at his current address. It is likely that it would have been by reference to this material that the Tribunal reached the conclusion that this applicant was "lawfully arrested".

In the present case a decision maker has made a decision that a person has been lawfully arrested and thus is precluded from exercising a right of review that otherwise could have been exercised. The decision was made by reference to at least one document which is likely to have been prepared by those effecting the arrest. In my opinion, unless there is clear authority precluding evidence being led as to the circumstances of the arrest, it should, in a case such as the present, be admitted.

In this matter not only does the issue of law involve mixed questions of fact and law in the way discussed by Lockhart J in Attorney-General of the Northern Territory (supra) but the present proceedings involve a question of law of which the applicant had no actual notice and was decisive in a re-consideration of the applicant's rights under the Migration Act 1958 and related regulations. It may well be that no general principle can be formulated as to when fresh evidence should be admitted in determining whether an administrative decision might be vitiated by an error of law. I respectfully adopt the observations of Franki J made in relation to s44 of the Administrative Appeals Tribunal Act 1975 with whose reasons Brennan J agreed, in Committee of Direction of Fruit Marketing v Australian Postal Commission (1978) 25 ALR 221:

"In general a question of law arises after the determination of any necessary facts and the nature of the question of law usually depends upon the facts as determined. The principles which should apply to the reception of further
evidence by this court were not the subject of detailed submissions to us and whilst I do not wish to attempt to formulate any general rule it seems that only in the most unusual circumstances, if at all, would this court be justified in admitting fresh evidence. I take this view notwithstanding that the application to this court, although loosely called an appeal, is an application in the original jurisdiction of the court."

I admit the evidence though I should add, as will be apparent shortly, the fresh evidence has no material bearing on the way this matter is determined.

The relevant evidence of Mr Ragogo is found in paragraphs 7 to 10 of his affidavit which reads:

"7. At about 7.00pm on 8 December 1989, Mr Neville Nixon and another compliance officer attended my home at 127 Quigg Street, Lakemba and arranged an appointment with myself and my wife to attend the compliance branch, Rockdale, the next day at 10.00am for an interview. During the conversation I said words to this effect to Mr Nixon:

"I have a migration agent, Mr Patrick Gallagher, and he is currently preparing an application for me."

I had Mr Gallagher's card with me at this time and I gave Mr Nixon his address and phone number.

8. I attended the compliance interview on 9 November 1989 at 10.00am with my wife, Elina Ragogo. At this interview I said words to this effect to Mr Nixon:

I have a migration agent and he is currently preparing an application on my behalf to be lodged as soon as possible. His name is Patrick Gallagher."

9. Mr Nixon interviewed myself and my wife for about ten minutes. He showed us some forms and explained that he wanted us to sign them. We did sign them. Towards the end of the interview he said to us words to this effect:

"I have to detain you and your wife for one hour to complete the formalities."

He then left us alone for a period of about half an hour or perhaps longer. When he returned he reminded us of our obligations set out in the documents we had signed. Then he told us we could go. Annexed hereto and marked with the letter "B" are the undertakings setting out conditions of release for myself and my wife.

10. I did not dispute my illegal status either before, during or after the compliance interview. I was not taken before a court at any time."

In a supplementary affidavit he amended the year "1989" to "1992".

The only other relevant evidence was a file note of Mr Nixon made on 18 December 1992 which reads:

"FILE NOTE - FOLIO 155A

SUBJECT RAGOGO FAMILY

I received a telephone call from Patrick Gallagher A/N's agent who advised his client had told him he had signed another piece of paper. I advised that A/N and spouse had been released on an undertaking and had requested a further (5) days in which to lodge an application. Mr Gallagher claimed I had told him he had a note not in custody and believed I was not going to arrest his client's.

I advised that I had informed him that I would detain A/N but not in custody as it was necessary when I was going to release on an undertaking. This decision was made after examination of their immigration history and previous matters where applicant had failed to keep in contact with the department.

Mr Gallagher was advised that any application should be lodged by COB on Friday, 18 December 1992.

Signed

.............................

(N Nixon)

18/12/92"

"A/N" is a reference to applicant and "COB" to close of business.

The submission of counsel for the applicant was that the arrest of Mr Ragogo was only for the purpose of imposing reporting conditions and that this was not a purpose contemplated by s92. Section 92 provides:

"(1) An officer may, without warrant, detain in custody a person whom the officer reasonably supposes to be an illegal entrant.

(2) A person detained under subsection (1) or (10) may, subject to this section, be kept in the custody of an officer or in such other custody as the Minister or the Secretary directs.

(3) Where an officer detains a person under subjection (1) or (10), the officer shall forthwith inform the person detained of the reason for the detention, and that officer or another officer having the custody of that person shall take the detained person before a prescribed authority within 48 hours after the detention or, if it is not practicable to bring the detained person before a prescribed authority within that period, as soon as practicable after that period, and, if the detained person is not so brought before a prescribed authority, he or she shall be released.

(4) Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is an illegal entrant and, if the prescribed authority is satisfied that there are such reasonable grounds, he or she may, in writing, authorise the detention of that person in custody, but otherwise the prescribed authority shall order that person to be released.

(5) The period for which the prescribed authority may authorise a person to be detained in custody under subsection (4):

(a) if the person proposes to leave Australia involuntarily - is until the person is ready, willing and able so to leave Australia;

(b) where paragraph (a) does not apply - is such period as the prescribed authority is satisfied is reasonably required to enable consideration of whether the person is an illegal entrant and whether he or she should be allowed to remain in australia; and

(c) in any case - is not more than 7 days from the date of the authorisation or such longer period as the person consents to."

(6) A prescribed authority may, from time to time, extend the period of detention referred to in sub-section (4).

(7) Subject to sub-section (8), at the expiration of the period of detention of a person under this section, that person shall be released.

(8) If, while a person is in custody under this section, an officer informs the person (whether before or after the person is brought before a prescribed authority) that a deportation order is in force in relation to the person, the preceding provisions of this section stop applying in relation to the person, and the person shall be taken to have been thereupon detained in custody under section 93 by;

(a) the officer who has custody of the person; or

(b) if the person is not in the custody of an officer, by the officer who so informs the person.

(9) In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in custody under this section.

(10) An officer may, without warrant, detain in custody a person who:

(a) has been released from custody under subsection (9) subject to conditions; and

(b) has breached any of those conditions.

(11) Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from custody of a person held in custody under this section where the court finds that the person is not an illegal entrant.

Two questions arise in these proceedings. First whether, as a matter of fact, the arrest of the applicant was only for the purpose of imposing reporting conditions and, if so and secondly, whether s92 authorises arrest for that purpose. At one stage counsel for the Minister appeared to concede that if the factual finding was made that the arrest was only for the purpose alleged then it followed it was not authorised by s92. However it is not clear that that concession was persisted with and accordingly it is appropriate that the second question, if it arises, be considered apart from the concession.

The file note of Mr Nixon is expressed in somewhat cryptic terms. However it is reasonably clear that Mr Nixon is recording an explanation he gave to an immigration agent acting for the applicant. The agent had been enquiring, and probably complaining, about a document Mr Ragogo had signed. The agent had asserted in the conversation that Mr Nixon had earlier said something that led the agent to believe his client would not be arrested. The record of Mr Nixon's response indicates that he had earlier told the agent that he would detain Mr Ragogo because it was necessary to do so to release him on an undertaking. Mr Nixon noted that he had earlier informed the agent that he would "detain A/N but not in custody". The context in which this is recorded indicates that Mr Nixon is asserting in his most recent conversation with the agent that he did what he had earlier informed the agent he intended to do, namely arrest Mr Ragogo as a means of bringing about a conditional release. I find that this was the purpose of the arrest and the only purpose. The evidence of Mr Ragogo adds nothing to this conclusion. The statement in paragraph 10 of Mr Ragogo's affidavit would not, given the vague terms in which it is expressed, sustain a finding that Mr Ragogo told Mr Nixon before his arrest that he accepted he was an illegal entrant.

The question when then arises is whether the arrest by Mr Nixon was for a lawful purpose. In Park Oh Hoh v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 104 a Full Court of the Federal Court had to consider, incidentally, the operation of the legislative predecessor of s92, s38 of the Migration Act 1958. The directly relevant section considered by the Court was s39 which authorised the arrest of a person who was the subject of a deportation order. The deportees in question had been detained and not deported so as to be available to give evidence in a prosecution of Customs officials. Sweeney J at 118 found it unnecessary to determine whether the detention of the deportees was unlawful, Morling J at 123-126 concluded it was not and Foster J at 131-132 concluded it was.

The views of Foster J were cited with approval by Lee J in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 which was decided four months after Park Oh Hoh (supra). His Honour made the following observations about s38 though they were not central to his decision:

"Before turning to the grounds of appeal, it is necessary to make some comment about the arrest and detention of the applicant.

There is growing recognition in international law that aliens or non-citizens may expect to have access to the same basic civil rights as enjoyed by nationals: see D P O'Connell, International Law (2nd ed, 1970), Vol 2, pp 697-699. The right of liberty is a precious right entitled to protection: Kuchenmeister v Home Office [1958] 1 QB 496 at 513; Re Bolton; Ex parte Beane (1987) 162 CLR 514, per Deane J (at 528-529).

Section 38 of the Migration Act (the Act) provides legislative authority for infringement of the liberty of a non-citizen for the protection of public order and the welfare of the state. But the section provides a right of arrest and right to detain in custody for a limited purpose and no more, namely, for such period as is reasonably required to enable the Minister to consider whether a deportation order should be made: see Park Oh Hoh v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 104, per Foster J (at 131-133).

The need for the use of the section is quite plain where a non-citizen has made no application for an appropriate permit and has deliberately evaded detection and attempted to defeat the provisions of the Act: see Unlugenc v Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569 at 573-574.

But in other cases where the non-citizen has maintained appropriate contact with departmental officers, has made due application for the grant of appropriate permits, has exercised rights of review to which he or she is entitled and is otherwise law-abiding, the need for arbitrary arrest is much less apparent.

These observations are equally relevant, in my opinion, to s92 and I adopt them. The High Court subsequently determined an appeal from the decision of the Full Court in
Park Oh Hoh (supra): see (1989) 167 CLR 637 though the appeal concerned a limited issue namely, whether a declaration should have been made that the detention of the appellants was unlawful, that is, whether that relief should have been granted. However it is clear from observations in the joint judgment of the members of the High Court at 644 that lawful detention was only that authorised by the applicable statutory provision.

In Minister for Immigration, Local Government and Ethnic Affairs v Immigration Review Tribunal (1993) 41 FCR 71, Keely J determined an appeal brought by the Minister under s138 of the Migration Act 1958 against a decision of the Tribunal. The Tribunal had dealt with a review notwithstanding the earlier arrest under s92 of the person to whom the review related. The Tribunal had determined that the arrest was not lawful because it was made merely for the purpose of imposing reporting conditions. His Honour found that firstly it was open to the Tribunal to consider the lawfulness of the arrest and secondly that its conclusion that it was unlawful was a conclusion open to it on the material before it. While this authority is not directly in point, it represents considerable support for the view contended for by the applicant, that arrest under s92 may lawfully occur only for the purpose of the process of ascertaining the status of the person arrested. To determine that issue it is necessary to consider the terms of s92.

Section 92 is found in Division 8 of Part II of the Migration Act 1958. That division authorises the search and seizure of property and the detention of people in a variety of circumstances. Section 92 is directed to the detention of persons who are suspected of being illegal entrants. A condition precedent to the exercise of the power to detain is that an officer reasonably supposes a person to be an illegal entrant. The scheme created by s92 which flows from such a detention, involves a process which is to take place fairly expeditiously and subject to comparatively stringent requirements. The purpose of the process is to ascertain whether as a matter of fact and law the person is an illegal entrant. Section 92(3) requires that the officer take the detained person before a prescribed authority within a specified period or as soon as practicable thereafter. If that is not done the person is to be released. If the mandate in s92(3) is complied with, the prescribed authority is required to determine whether there are reasonable grounds for supposing that the person is an illegal entrant: 92(4). If so satisfied the person may be detained further though subject to the limits in s92(5) which in turn may be extended by the means provided in s92(6).

It is to be noted that s92(9) provides that a person in custody may be released by either the Minister or the Secretary and then either unconditionally or subject to specified conditions. That is a power that may, by operation of s 176, be delegated to another person. However the existence of the power in s92(9) does not alter the purpose of the original detention. It is to commence a process designed to ascertain whether the status of the person is that of an illegal entrant. The procedure contemplated by the section may involve a consideration by the prescribed authority of that question.

However Division 8 includes s 97 which enables an officer to put questions to a person who is in custody, concerning the status of the person and s 97(2) requires the person to answer them. It is consistent with the legislative scheme of Division 8 that a person might be detained in custody as provided in s92(1), and questions put by the detaining officer. The answers could constitute an admission by the person detained that they are an illegal entrant. Such an admission might render unnecessary the subsequent procedure contemplated in s92(3) to (7). The existence of the power vested in the Minister or Secretary to release either unconditionally or on condition a person detained coupled with the power to delegate arising in s176 would suggest that there is nothing unlawful in an officer detaining a person who is suspected of being an illegal entrant and, if invested by delegation with the power to release under subsection 92(9), then releasing the person upon securing the admission that they were an illegal entrant. In such a case there would be no inhibition on the officer releasing the person on specified conditions.

The issue in these proceedings is thus whether Mr Nixon detained Mr Ragogo for the purpose of ascertaining whether he was an illegal entrant and, having done so, released him on conditions or whether the sole purpose in detaining him was to impose conditions in the manner contemplated by s92(9). As I discussed earlier, in his affidavit Mr Ragogo says that he did not dispute his illegal status either before, during or after the compliance interview. That evidence, however, rather begs the question of whether Mr Nixon was aware that Mr Ragogo makes that concession and made it at the relevant time. However whether Mr Nixon was aware that Mr Ragogo conceded his status as an illegal entrant is, on the view I have taken of the facts, not relevant. That is because Mr Nixon was indifferent to whether Mr Ragogo conceded his status as an illegal entrant and he used the power of detention conferred by s92 only for the purpose of imposing reporting conditions. The undertaking signed by Mr Ragogo on 9 December 1992 included the admission that he was an illegal entrant/deportee but, as I earlier found, the purpose of the detention was solely to impose reporting conditions. Thus the arrest of Mr Ragogo was not for a purpose contemplated by s92 and was unlawful. He had not been "arrested under s92" as that expression appears in reg 9(2). Thus the Tribunal erroneously decided that it was precluded, by operation of reg 9(2), from dealing with the application for review.

This leads to the question of what relief, if any, should be granted. As I earlier indicated the Tribunal dealt with the application for review on its merits notwithstanding its conclusion that it had no jurisdiction to do so.

The Minister submitted that it would be futile remitting the matter to the Tribunal given the decision it has made on the merits. Reference was made to the judgment of Beazley J in Barry Rogers & Co Pty Ltd v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 197 in which her Honour rejected an argument that a matter should not be remitted to the decision maker because it would be futile to do so. However her Honour proceeded on the basis that futility might provide a reason for not remitting a matter. It may be accepted that situations could arise where, notwithstanding that error was found by the Court, the impugned decision was made on several grounds. If the demonstrated error concerned only one ground, it might be futile to remit the matter because the same decision would be made on the ground or grounds not attended by error. Ordinarily this issue is approached on the basis that the error is not a material one: see BTR PLC v Westinghouse Brake and Signal Company (Australia) Ltd & Ors (1992) 34 FCR 246 at 254 Klinkert v Australian Postal Corporation (1992) 16 AAR 86 at 92 and Darling Downs Bacon Co-operative Association Ltd & Anor v Comptroller General of Customs & Ors (1994) 50 FCR 435 at 452.

However, in the present case, the only decision that has been made by the Tribunal is that it had no jurisdiction to determine the application that had been made to it. While it has expressed a concluded view about the application and thus decided, de facto, the application for review, it has made no decision to affirm the decision it was reviewing. Notwithstanding the conclusion I have reached about the arrest and the power of the Tribunal to deal with the application for review, I could exercise the discretion arising in s16 of the ADJR Act to make no order disturbing the decision it made, though erroneously, as a means of preserving the de facto decision dealing with the application for review.

The ADJR Act was enacted as one of a number of legislative measures to provide avenues of review of administrative decisions. There are numerous observations by judges of this Court about the purpose of the ADJR Act. One is that of Ellicott J in Burns v Australian National University (1982) 40 ALR 707 at 716 - 717:

"The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others."

The remarks were approved by Bowen CJ and Lockhart J in an appeal from the judgment of Ellicott J: see (1982) 43 ALR 25 at 31.

The ADJR Act would have conferred on Mr Ragogo a right to seek the review in this Court of the decision of the Tribunal to affirm the decision under review by it had that been the decision the Tribunal made. While in fact it was, in law it was not. In my opinion I should not adopt a course in these
proceedings which would deprive Mr Ragogo of that right. Plainly I am not suggesting that the de facto decision of the Tribunal to affirm the decision it was reviewing was attended by error. That is not a matter I have been called upon to consider let alone determine. However Mr Ragogo should not be deprived of the opportunity of exercising rights under the ADJR Act if there is any basis for their exercise. That is ultimately a matter for him and those advising him. For that reason alone the Tribunal's decision should be set aside.

Counsel for the applicant relies on the decision of the High Court in Wade v Burns (1966) 115 ALR 537 and King v Goussetis (1986) 5 NSWLR 89 in support of a submission that the applicant is entitled to a considered decision on the merits. The submission appeared to proceed on the basis that the opinion, or de facto decision as I have described it, of the Tribunal should be disregarded. I have recently considered Burns (supra) in Yong v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 176 at 183:

"In that case the High Court had to consider whether mandamus should issue requiring a mining warden to deal with an application in circumstances where the warden had erroneously believed there was a statutory prohibition against granting the application. It was argued it should not because in dealing with the application, the warden had volunteered that if he had had a general discretion to refuse the application, he would have done so.Thus, it was argued, to issue mandamus would be future as the application would be refused having regard to the warden's remarks. However Barwick CJ (at 555), Menzies J (with whose reasons Taylor J agreed)(at 563) and Owen J (at 568) expresses the view that the writ should issue notwithstanding those remarks having been made by the warden.

Barwick CJ expressed the view that "the anticipatory comments are of no present consequence". Menzies and Owen JJ appear to have thought it appropriate that the warden reconsider the
application so that the precise nature of the discretion could be considered by the warden and then exercised: see also King v Goussetis (1986) 5 NSWLR 89 at 95, per McHugh JA."

I have already accepted, for different reasons, that the Tribunal's decision should be set aside and it is unnecessary to decide in this matter whether the principle in Burns (supra) provides an additional reason for doing so.

The next issue is whether, having set aside the decision made by the Tribunal, I should order that the matter be remitted to the Tribunal differently constituted to be determined according to law. The error it made had no bearing on the way it went about considering the application before it on the merits. Indeed the decision it actually made, based on reg 9, has the appearance of a decision made as an afterthought when, after dealing with the merits, the Tribunal appreciated the significance of the arrest or became aware that it had occurred. Were it otherwise it is difficult to understand why the Tribunal would have taken time and effort to deal with the application on the merits.

The principle in Northern NSW FM Pty Limited v Australian Broadcasting Tribunal & Anor (1990) 26 FCR 39, has been applied where the decision that is set aside is the decision that must be made again, see eg. White v Repatriation Commission 5 September 1995, unreported, Moore J. Such is not the case in these proceedings. In my opinion it would not be unfair if no order was made remitting the matter to the Tribunal to be determined by the Tribunal differently constituted. It should be a matter for the Tribunal to determine by whom and by what means the application for review is determined.

Consistent with these reasons, I presently see no need to make any orders other than an order setting aside the decision of the Tribunal and an order requiring the first respondent to pay the applicant's costs. If either party considers it is necessary for me to make an order simply remitting the matter to the Tribunal, I give liberty to either party to have the matter relisted to deal with that question.

I set aside the decision of the Tribunal. I order the first respondent pay the applicant's costs.

Associate:

Dated:

APPEARANCES

Counsel for the Applicant: Mr G Craddock

Solicitor for the Applicant:Anne O'Donoghue & Associates

Counsel for the Respondent: Ms C Adamson

Solicitor for the Respondent: Australian Government Solicitor

Dates of Hearing: 4 August 1995

Written Submissions Complete: 6 September 1995

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