Barbaro, Vincenzo v McPhee, the Honorable Ian Malcolm
[1982] FCA 130
•06 JUNE 1982
And: THE HONOURABLE IAN MALCOLM McPHEE
No. G.3 of 1982
Administrative Law
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Davies J.
administrative Law _ whether a decision of a Minister affirming a deportation order is a decision for the purposes of the Administrative Decisions (Judicial Review) Act 1977Whether a 'decision under an enactment' within the meaning of s.3 of that Act _ effect of decision by Administrative Appeals Tribunal remitting matter to Minister for his reconsideration
Immigration and Aliens
Administrative Appeals Tribunal
Meaning of 'decision', 'ultimate and operative determination'
Migration Act 1958, ss.12, 20
Administrative Decisions (Judicial Review) Act 1977, ss.3, 5
Administrative Appeals Tribunal Act 1975, ss.3, 22, 25, 43
ADELAIDE
#DATE 6:6:1982
1. The question set aside for determination is answered yes.2. The respondent is to pay the costs of this proceeding.
In these proceedings a question has been set aside for determination separately from other issues to be determined. The question is, 'Whether the applicant is a person who is aggrieved by a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies'.
Section 12 of the Migration Act 1958 reads :
'12. Where (whether before or after the commencement of this Part) an alien has been convicted in Australia of a crime of violence against the person or of extorting any money or thing by force or threat, or of an attempt to commit such a crime, or has been convicted in Australia of any other offence for which he has been sentenced to imprisonment for one year or longer, the Minister may, upon the expiration of, or during, any term of imprisonment served or being served by that alien in respect of the crime, order the deportation of that alien.'
On 20 September 1979 the Minister of State for Immigration and Ethnic Affairs ordered, pursuant to s.12, that Vincenzo Barbaro be deported from Australia. Such an order remains in force until revoked. Section 20 of the Migration Act provides :
'20. Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.'
In Re Serecen and Minister for Immigration and Ethnic Affairs, 1 ALD 72, Mr Justice Brennan, President of the Administrative Appeals Tribunal, expressed the view that the Minister had a power of revocation but that that power was not to be implied from ss.12, 13, 14, 17, 18 or 19 of the Migration Act, it was conferred by s.20. It is not necessary for me in the present proceedings to decide whether that view was correct. It is common ground, and I think plainly correct, that the Minister has a power under the Migration Act to revoke a deportation order made under s.12.
After service upon him of the deportation order, Mr Barbaro made application to the Administrative Appeals Tribunal for review of the Minister's decision. That application was made under sub-clause (1) of clause 22 of the Schedule to the Administrative Appeals Tribunal Act 1975, which reads :
'22.(1) Applications may be made to the Tribunal for review of decisions of the Minister made under section 12, 13 or 48 of the Migration Act 1958-1973 other than a decision made on a matter remitted by the Tribunal for reconsideration in accordance with sub-clause (3).'
The application was determined by the Administrative Appeals Tribunal on 18 March 1981 and on that day a presidential member of the Tribunal ordered:
'...that the decision of the Minister of State for Immigration and Ethnic Affairs dated 20 September 1979 be reviewed and recommends that the order for the deportation of Vincenzo Barbaro be revoked and remits the matter to him for reconsideration in accordance with this recommendation.'
The order was made in that form by reason of the provisions of sub-clause (3) of clause 22 of the Schedule to the Administrative Appeals Tribunal Act which provided :
'22.(3) After reviewing a decision referred to in sub-clause (1), the Tribunal shall either affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the Tribunal.'
Accordingly, the effect of the decision of the Tribunal was that the matter was remitted to the Minister for reconsideration in accordance with the recommendation that the order for the deportation of Vincenzo Barbaro be revoked. By letter dated 22 February 1982 Mr Barbaro was advised :
'After considering the recommendation of the Administrative Appeals Tribunal and after weighing up the factors for and against deportation, the Minister has decided to affirm the Deportation Order.'
Section 5 of the Administrative Decisions (Judicial Review) Act provides that a person who is aggrieved by a decision to which the Act applies that is made after the commencement of the Act may apply to the Court for an order of review in respect of the decision. A 'decision to which this Act applies' is defined in sub-section (1) of s.3 as meaning :
'... a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1;'.
The definition is expanded by the provisions of sub-section (2) of s.3 which read :
'3.(2) In this Act, a reference to the making of a decision includes a reference to _
(a) making, suspending, revoking or refusing to make an order, award or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing, ...'.
By application dated 26 February 1982 Mr Barbaro made application to this Court for an order of review with respect to a decision made by the Minister purporting to confirm his order that the applicant be deported from Australia.
The substance of the question which I am asked to determined today is whether the decision of the Minister in February 1982 by which he affirmed the deportation order of 20 September 1979 was a decision for the purposes of the Administrative Decisions (Judicial Review) Act and, if so, whether it was a decision under an enactment within the meaning of s.3 of that Act.
The expression 'a decision of an administrative character made ... under an enactment' was considered by Mr Justice Ellicott in Burns v Australian National University, judgment delivered on 27 April 1982, as yet unreported. In that case, his Honour said :
'It is obviously unwise to attempt a comprehensive definition but, in my opinion, it is at least apt to describe all those decisions, neither judicial nor legislative in character, which Ministers, public servants, government agencies and others make in the exercise of statutory power conferred on them, whether by Act of the Parliament or by delegated legislation. In other words it at least covers the decisions made in executing or carrying into effect the laws of the Commonwealth.'
His Honour held that a decision made by the Council of the Australian National University terminating the services of a professor was a decision made under an enactment which established the University, notwithstanding that the decision arose out of contractual situation. His Honour said :
'... I am of the opinion that if a statutory authority makes a decision by which a person is aggrieved, which is made under broad statutory powers but which lies at the very heart of those functions for which the body was established by statute, the courts should be slow to find that such a decision, if administrative in character, is not made 'under an enactment' simply because the occasion for the exercise of the power arises out of a contractual situation. 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. In many cases the power exercised will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where the particular power is precisely stated. In each case the question to be asked is one of substance, whether, in effect, the decision is made 'under an enactment' or otherwise.'
A similarly wide view of the term 'decision' was taken in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd, 24 ALR 307. In that case, the Court considered the meaning of the word 'decision' as defined in s.3 of the Administrative Appeals Tribunal Act, and as it appears in s.25 of that Act. Section 25 refers to 'decisions made in the exercise of powers conferred by that enactment'.
Sub-section (3) of s.3 of the Administrative Appeals Tribunal Act defined a decision in terms similar to those appearing in sub-section (2) of s.3 of the Administrative Decisions (Judicial Review) Act. The issue in that case was whether a decision which was invalid was nevertheless a decision for the purposes of the Administrative Appeals Tribunal Act.
At page 314 the Chief Judge, Sir Nigel Bowen, said :
'In the Administrative Appeals Tribunal Act a wide meaning is given to the word 'decision" by s.3(3). In s.25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision. The difficulty lies in interpreting the words 'made in the exercise of powers conferred by that enactment'. This may mean that it must be shown there was a decision made:-
(a) in pursuance of a legally effective exercise of powers conferred by the enactment; or
(b) in the honest belief that it was in the exercise of powers conferred by the enactment; or
(c) in purported exercise of powers conferred by the enactment.
The words 'purported exercise' in (c) are used as including the notion that the official may be making his decision on the basis that he is exercising powers conferred by the enactment, whether or not on a proper interpretation of the enactment such powers are conferred."
At page 315 his Honour said :
'Interpretation (c) appears to me to be consistent with the context in the Administrative Appeals Tribunal Act. The Acts committed to the administration of each Minister and his Department are set forth in the Administrative Arrangements Orders published from time to time in the Gazette. There might be a rare case where a decision appeared to have no relationship to one of the Acts committed to the administration of the Minister or Department concerned. However, in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act. The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment. It could then proceed to determine whether the decision was properly made in fact and in law. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal: see Calvin v Carr (1979) 22 ALR 417. I would adopt interpretation (c).'
In the present case, the matter was remitted to the Minister for his reconsideration. The effect of the Administrative Appeals Tribunal Act and of the decision of the Tribunal made under that Act was to impose upon the Minister a duty to reconsider the deportation order made on 20 September 1979 and thus the question of whether or not Mr Barbaro should be deported from Australia.
In my opinion, that duty would not have been fulfilled until such time as the Minister had either revoked or affirmed the order of 20 September 1979. In the proceedings before me, it was put by Mr Perry, QC, Senior Counsel for the respondent, that the affirmation of the order of 20 September 1979 was not a decision for the purposes of the Administrative Decisions (Judicial Review) Act because, he said, it was not an 'ultimate and operative determination', a phrase used by Mr Justice Lockhart in Riordan v Parole Board of the Australian Capital Territory, Connor and Others, 3 ALD 144 at 150.
Mr Perry submitted that the ultimate and operative determination was the order made on 20 September 1979 and that that order continued to remain in force throughout the whole of the review process.
Mr Perry further relied upon what was said by Mr Justice Connor in The Queen v Commissioner of Police and Another; Ex parte Ivusic, 20 FLR 412. His Honour there held that the affirming of a deportation order that not have the effect of bringing into existence a new deportation order. At page 425, his Honour said : I think it is also about as plain as it could be that the reality of the situation is in accordance with the parties' concept of it, namely that the deportation order of Dr Forbes was in force as from 31st May, 1972, it has never been revoked, and the present Minister's refusal to revoke it leaves it standing of its own force. The present Minister has never substituted a deportation order of his own. The most that he has done in his minute of 18th January, 1973, is to approve a recommendation for executive action to enforce his predecessor's order."
However, to say that an affirmation of an order for deportation does not in itself constitute the making of a fresh deportation order is not to say that the formation and expression of the view that an order for deportation be affirmed may not be a decision for the purposes of the Administrative Decisions (Judicial Review) Act. In the present case the Administrative Appeals Tribunal was under a duty to consider the deportation order respecting Mr Barbaro and it was required to make a decision upon his application (see s.43 of the Administrative Appeals Tribunal Act and sub-clause (3) of clause 22 of the Schedule to that Act).
The decision of the Administrative Appeals Tribunal was a decision for the purposes of the Administrative Decisions (Judicial Review) Act notwithstanding that the Tribunal had no authority to set aside the deportation order of 20 September 1979. Similarly, upon the remittal to him of the matter for reconsideration, the Minister was under a duty to consider the matter and to make a decision thereon. Such decision was the end of the review process established by the Administrative Appeals Tribunal Act and necessarily resulted in either the affirmation or the revocation of the deportation order of 20 September 1979.
In this sense, the decision of the Minister was an ultimate and operative determination notwithstanding that the order of 20 September 1979 continued to operate unless set aside. Sub-clause (1) of clause 22 of the Schedule to the Administrative Appeals Tribunal Act recognised that the reconsideration will result in a decision for it exempted from the jurisdiction of the Administrative Appeals Tribunal :
'... a decision made on a matter remitted by the Tribunal for reconsideration in accordance with sub-clause (3).'
I am of the view that the Minister's decision on his reconsideration of the matter remitted to him was a decision in the sense in which that word is used in the Administrative Decisions (Judicial Review) Act. I am further of the view that the decision reached on the reconsideration was a decision made under an enactment. The decision was made under the Migration Act and the Administrative Appeals Tribunal Act.
In making his decision, the Minister exercised powers conferred upon him by the Migration Act and he did so in pursuance of a duty to do so imposed upon him by the Administrative Appeals Tribunal Act and a decision of the Administrative Appeals Tribunal made thereunder. It was accepted by Counsel that if there were a decision made under an enactment, that decision was a decision of an administrative character and that the applicant Mr Barbaro was aggrieved thereby. The question asked must therefore be answered yes.
The proper order is that the respondent pays the costs of this proceeding, and I so order.
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