Schlieske v Minister of State for Immigration and Ethnic Affairs [1988] FCA 61

Schlieske v Minister of State for Immigration and Ethnic Affairs [1988] FCA 61

The power under s.18 of the Migration Act 1958 to deport a prohibited non-citizen must be exercised for the purposes of the Act (i.e., bona fide deportation for immigration control), and not for the ulterior purpose of delivering the person into the custody of foreign authorities for prosecution (disguised extradition). While improper purpose by subordinate officers implementing the deportation order was established, this did not render all potential deportation to Germany unlawful, but it did entitle the appellant to orders restraining the exercise of powers for any purpose other than removal from Australia and delivery into foreign custody.

Parties
Appellant: Jens Ingo Lutz Schlieske; First Respondent: The Honourable Michael Jerome Young, Minister of State for Immigration and Ethnic Affairs; Second Respondent: The Honourable Lionel Frost Bowen, Attorney-General of Australia; Third Respondent: Commissioner of the Australian Federal Police; Fourth Respondent: Director of Public Prosecutions; Fifth Respondent: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
04 March 1988
Procedural Posture
Appeal / On Appeal From a Single Judge of the Federal Court of Australia
Outcome
Appeal allowed in part; constrained orders made
Legal Topics
Deportation, Use of Deportation Powers, Extradition Vs Deportation, Improper Purpose in Administrative Decision Making, Ministerial Discretion Under Migration Act 1958
Administrative Law Immigration Law Deportation Use of Deportation Powers Extradition Vs Deportation Improper Purpose in Administrative Decision Making Ministerial Discretion Under Migration Act 1958

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Parties

Jens Ingo Lutz Schlieske

Appellant

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

Procedural Posture

Appeal / On Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 Whether the use of deportation powers amounted to a 'disguised extradition'
  2. 2 Whether deportation for the purpose of surrender to foreign authorities is an improper exercise of statutory powers under the Migration Act 1958
  3. 3 Whether relief should be granted to prevent deportation or its manner of implementation in the circumstances

Ratio Decidendi

The power under s.18 of the Migration Act 1958 to deport a prohibited non-citizen must be exercised for the purposes of the Act (i.e., bona fide deportation for immigration control), and not for the ulterior purpose of delivering the person into the custody of foreign authorities for prosecution (disguised extradition). While improper purpose by subordinate officers implementing the deportation order was established, this did not render all potential deportation to Germany unlawful, but it did entitle the appellant to orders restraining the exercise of powers for any purpose other than removal from Australia and delivery into foreign custody.

Court Disposition

Appeal allowed in part; constrained orders made

Orders

  • Title of proceedings amended to delete the words 'The Honourable Michael Jerome Young'.
  • Order 1 made by Beaumont J on 23 December 1987 set aside.