Allan Kendrick Dean v Lionel Barrie Woodward

[1984] FCA 442

Re: ALLAN KENDRICK DEAN
And: LIONEL BARRIE WOODWARD
No.WA G101 of 1984
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Immigration - judicial review - decision to deport prohibited non- citizen - whether breach of natural justice - whether entitlement to be heard before Immigration Review Panel - whether failure to take into account relevant considerations - whether error of law

Administrative Decisions (Judicial Review) Act 1977 2.5

Migration Act 1958 ss.6, 6A, 16,18

HEARING

PERTH

#DATE 12:12:1984

ORDER

1. The application is dismissed.

2. The applicant pay the respoindent's costs of the
   application.
   

JUDGE1

The Migration Act 1958 s.18 empowers the Minister to order the deportation of a person who is a prohibited immigrant (now prohibited non-citizen) under any provision of the Act.

1. On 21 September 1983 the Delegate of the Minister ordered that the applicant be deported from Australia, he being a prohibited immigrant by virtue of s.6 of the Act "in that he was not, at the time he then entered Australia, the holder of, or a person included in, an entry permit and an entry permit has not been granted to him since". The applicant is also a prohibited immigrant by virtue of sub-s.16(1) in that "at the time of entry he was a person who had been convicted of a crime and sentenced to imprisonment for a period of not less than one year and is not the holder of an entry permit of the kind referred to in that sub-section".

2. The applicant does not dispute that at the time of the deportation order he was a prohibited immigrant. It was therefore not open to him to seek a review of the Minister's decision under the provisions of the Administrative Appeals Tribunal Act 1975. However he seeks a review of the Delegate's decision under the provisions of the Administrative Decisions (Judicial Review) Act 1977.

3. At the time the application was filed, the respondent had not provided a statement of reasons for his decision; he took the view that the applicant was not entitled to such a statement. However a statement of reasons has now been provided. In interlocutory proceedings before me a question arose as to whether the application was lodged within the time prescribed by s.11 of the Judicial Review Act. The respondent expressly took no point in this regard and I need spend no more time on it.

4. The application is brought on three grounds.
   
   

(1) There was a breach of the rules of natural justice in that the applicant was not told of his right to put a case for remaining in Australia to the Immigration Review Panel. As formulated the ground continues:

"... nor was he advised of any other

right of review, nor given any

opportunity for a hearing".

Mr. Walker, counsel for the applicant, acknowledged that no right of review was suggested other than the procedure involving the Immigration Review Panel.

(2) The decision was an improper exercise

of power in

that the respondent failed to take into

account a

number of relevant considerations.

(3) The decision involved an error of law,

or was

otherwise contrary to law, in that the

respondent

acted on incorrect advice that the applicant was not

eligible for the grant of an entry permit under s.6A

of the Migration Act.

1. Counsel for the applicant has said all that can be said in support of this application but, in my view, it must fail. My reasons for reaching this conclusion are as follows.

2. The Immigration Review Panel is a non-statutory body, established to investigate certain cases arising within the Department of Immigration and Ethnic Affairs and to make recommendations to the Minister whether to vary or uphold a departmental decision relating to such a case. The function of the panel appears in a document published by the department entitled "The Review Rights". There are three essential requirements for eligibility to lodge a request for review; the only one in issue here is that the decision must come within one of the twelve review rights listed in the document.

3. The applicant contends that Review Right 11 and Review Right 12 are applicable to his case. The respondent submits that the applicant was not eligible to bring his case before the panel. I should make it clear that the applicant did not contend that he was entitled to have his case reviewed after the deportation order was made; his complaint was that he was deprived of the opportunity of review before the order was made.

4. Review Right 11 is expressed to apply to a person "who, having been located as a prohibited immigrant (excepting pursuant to section 16(1) of the Migration Act - see Review Right 12), and as such is deportable under section 18 of the Migration Act 1958, is found to be eligible for consideration for resident status under section 6A(1)(b) of the Migration Act".

5. Review Right 12 is expressed to apply to a person "who, having been admitted to Australia in possession of a migrant visa, is subsequently found to be a prohibited immigrant pursuant to section 16(1) of the Migration Act and is therefore liable to deportation under section 18 of the Act, such a person is required to seek a specially endorsed entry permit as required by section 16 of the Act".

6. Review Right 11 is not applicable to the applicant because he was a prohibited immigrant by reason of sub-s.16(1) of the Migration Act. At the time of entry to Australia in 1979 he had 17 convictions, mainly for indecent assault on a male, some of which involved minors. He had been sentenced to various terms of imprisonment and it is enough, for the purposes of the section, to mention that on 24 July 1970 he was convicted of three charges of indecent assault on a boy under 16 years and was sentenced to 8 years imprisonment on each charge.

7. Review Right 12 is not applicable because the applicant was not admitted to Australia in possession of a migrant visa. His counsel argued that, while literally the applicant did not fall within Review Right 12, he had come from New Zealand where a visa was not required. But the applicant came neither within the letter nor the spirit of review Right 12. By virtue of his convictions he was not exempt from the requirements of Division 1 of Part II of the Act, hence an entry permit was required. He did not hold an entry permit and indeed appears to have entered Australia under an assumed name since no record can be found of his entry to this country.

8. In these circumstances I see nothing to be gained by making yet another contribution to the debate concerning the requirements (if any) of the rules of natural justice in regard to the deportation of prohibited immigrants or prohibited non- citizens as they are now called. The only complaint made by the applicant in this regard concerns the Immigration Review Panel and, in my opinion, he had no entitlement to air his case before that body.

9. The argument that the respondent failed to take into account relevant considerations largely turns on the applicant's homosexuality. His many convictions in New Zealand and his several convictions in Western Australia are the product of his homosexuality. It is said that the applicant's "rehabilitation" is more likely in Australia. Since the applicant is and wishes to continue as a practising homosexual, a question arises as to what is meant by "rehabilitation" in his case. The applicant appears to be saying two things. The first is that if he remains in Australia he can go to New South Wales where homosexual act between consenting male adults no longer constitutes a criminal offence. However the term "rehabilitation" is construed, it is not appropriate to that situation. But I understand the applicant to be saying that, if he does go to New South Wales, he will have access to homosexual counselling and support organisations, making it less likely that his conduct will involve minors.

10. This attitude is understandable though, given the number of offences in which minors were involved, one would expect some persuasive evidence that a move to New South Wales would have the desired result. That evidence was not forthcoming. It is likely too that the respondent did not take this particular matter into account but the short answer to the applicant's complaint is that the respondent was not invited to do so. Before the decision to deport was made, the respondent was of course aware of the applicant's homosexuality and his criminal convictions. The record of interview between an officer of the department and the applicant shows that the applicant offered as a reason for not wishing to be deported that his economic prospects would be much worse in New Zealand than in Australia, particularly in view of his criminal convictions in that country. But nothing was said to suggest that the applicant thought he would benefit personally by living in New South Wales. Nor, it would appear, had he attempted at any time to move from Western Australia to the Eastern States.

11. I am not to be taken as asserting as a general proposition that it is a sufficient answer to a complaint that a decision maker failed to take into account a relevant consideration, that the person affected by his decision failed to bring that matter to his attention. There may be some considerations so obvious that the decision maker must take them into account whether or not his attention has been expressly directed to them. But in the present case the question of benefits to be derived by the applicant from living in New South Wales was essentially a matter to come from him and to be put before the respondent in support of his application to remain in this country. It was not done.

12. The other matters which it is said the respondent failed to take into account concern the likely future personal circumstances of the applicant in this country, as contrasted with New Zealand, and the fact that the crimes of which he had been convicted before entry to Australia "arose from the Applicant's homosexuality".

13. As to the first of these, I am not persuaded that the respondent failed to take into account the applicant's personal circumstances. The statement of reasons may not give the emphasis to the applicant's personal circumstances that he would wish but, in so far as those circumstances were made known to the respondent, I am satisfied that he took them into account. Paragraph 15 of the statement of reasons deals with personal circumstances.

14. There is no reason to think that the respondent did not take into account the fact that the applicant's offences arose from his homosexuality; this must have been obvious. But it is equally obvious that a number of those offences involved minors; this was a matter the respondent was entitled to take into account. It should not be assumed from the fact that the statement of reasons makes no express reference to this aspect that it played no part in the decision to deport.

15. The pro forma document used by the department for interviews with prohibited immigrants includes this heading:
    
    

"(e) Section 6A Migration Act explained. Eligible not eligible what claims made?"

1. Against this heading the interviewing officer wrote "Not eligible". This is the basis of the submission that the decision involved an error of law, it being said that the applicant was eligible for the grant of an entry permit under s.6A.

2. Section 6A provides that an entry permit shall not be granted to an immigrant after entry into Australia unless one or more of the conditions set out therein is fulfilled. None of these conditions is directly applicable in the present case though para (e) refers to a person who is "the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him". In his statement of reasons paras 10-12, the respondent refers to the fact that the applicant is a prohibited non-citizen and that, by virtue of his criminal convictions in New Zealand, he is not an exempt person under s.8 of the Act. The respondent accepted that it was possible to authorise the applicant's continued presence in Australia by the grant of a suitably endorsed temporary entry permit pursuant to sub-s.16(1) of the Act but considered that such a grant was inappropriate because of the applicant's criminal record both in Australia and New Zealand. The respondent also accepted that the applicant could be made eligible under para 6A(1)(e) of the Act by the grant of a temporary entry permit but concluded that there were no strong compassionate or humanitarian grounds for the grant of a permanent entry permit to him.

3. Whether or not the notation "not eligible" was strictly accurate, the material before the Court shows that the respondent gave proper consideration to the propriety of granting an entry permit by means of a temporary entry permit on compassionate or humanitarian grounds. The respondent rejected that approach and this Court does not sit as a tribunal to review the correctness or otherwise of that conclusion.

4. In all the circumstances the application must be dismissed.