Batey, K.E. v Minister for Immigration, Local Government & Ethnic Affairs
[1992] FCA 812
•02 OCTOBER 1992
Re: KEITH ERNEST BATEY
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G119 of 1992
FED No. 812
Number of pages - 31
Migration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)
CATCHWORDS
Migration - Administrative Appeals Tribunal recommends against deportation - Minister does not accept recommendation - jurisdiction - whether Minister's decision "manifestly unreasonable."
Migration Act 1958, ss.55, 63(1), 180
Administrative Decisions (Judicial Review) Act 1977, ss.3(1), 5(1)(a), (2)(g).
HEARING
BRISBANE
#DATE 2:10:1992
Counsel and Solicitors Mr Mulholland QC with
for Applicant: Mr Devlin instructed by Carberrys
Counsel and Solicitors Mr Crooke QC with
for Respondent: Mr Boulton instructed by
Australian Government Solicitor
ORDER
THE COURT ORDERS:
1. That the matter be referred to the respondent to be dealt
with in accordance with law.
2. That the respondent pay two-thirds of the applicant's costs.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Introduction
BEAUMONT J. The applicant seeks an order of review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") in respect of a decision of the Minister not to revoke an order for the deportation of the applicant made under the Migration Act 1958 ("the Act").
The history of the matter
2. The history of the matter is as follows.
The applicant, now aged 28, was born in the United Kingdom in 1964. He is a citizen of the United Kingdom. He came to Australia with his parents and his brother in 1971, when he was seven. The family stayed here for two years and then returned to England, where his parents separated. His father returned to Australia to live. In December 1977, the applicant came here to live with his father and his father's new wife. The applicant's brother remained in the United Kingdom.
Between 1978 and 1982, the applicant had two convictions for stealing, one conviction for illegal use of a motor vehicle and two convictions for assault. He was not sentenced to imprisonment on any of these convictions. In this period, he developed a drinking problem.
In November 1983, the applicant was convicted of rape, attempted rape, sodomy, deprivation of liberty and unlawful use of a motor vehicle and was sentenced to a total of 13 years' imprisonment. These offences arose out of an attack on an 18 year old girl in May 1983. The applicant was then 19. He pleaded guilty to the offences, claiming that he was under the influence of alcohol and drugs at the time. An appeal against the sentence was dismissed.
During his term of imprisonment, the applicant was convicted of the following offences: (1) taking part in opposition to lawful authority (June 1983); (2) attempted escape (November 1988); (3) unlawful assault doing bodily harm to prison guards during attempted escape (February 1989).
The deportation order
6. In July 1986, the Delegate of the Minister ordered the deportation of the applicant pursuant to s.12 of the Act which provided (as s.55 of the Act now provides) as follows:
"Where -
(a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b) at the time of the commission of the offence the person-
(i) was not an Australian citizen; and
(ii) had been present in Australia as a permanent resident for a period of less than 10 years or for periods that, in the aggregate, do not amount to a period of 10 years; and
(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year. the Minister may order the deportation of the person."
The application to the Administrative Appeals Tribunal
7. In 1991, the applicant applied to the Administrative Appeals Tribunal ("the Tribunal") for, and was granted, an extension of the time in which to apply to the Tribunal for review of the deportation order. The application for review was made under s.180 of the Act (previously s.66E(1)) which, relevantly, provides as follows:
(1) Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Minister under section 55 other than a decision made on a matter remitted by the Tribunal for reconsideration in accordance with sub-section (3).
...
(3) After reviewing a decision referred to in subsection
(1), the Tribunal shall either affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the Tribunal."
The Tribunal's decision
8. In February 1992, the Tribunal, constituted by Bulley J., Presidential Member, having reviewed the decision to deport the applicant at some length, recommended that the deportation order be revoked and remitted the matter to the Minister for reconsideration in accordance with that recommendation.
In its reasons, the Tribunal referred to a statement of Government policy in this area. The statement dated 4 May 1983, especially para. 4 thereof, is important for present purposes and is as follows:
"INTRODUCTION
1. The Australian Government, on behalf of the Australian community, has the right to decide who will be accepted for permanent residence in Australia and, ultimately, for absorption into full membership of the community by way of Australian citizenship.
2. Parliament vests in the Minister for Immigration and Ethnic Affairs the discretion to determine whether resident non-Australian citizens who have been convicted in Australia of certain major criminal conduct are to be removed from Australia by deportation. In exercising that discretion the Minister is exercising the right of the Australian community to be protected and to choose who will be permitted to remain a permanent resident.
3. A person who has come within the criminal deportation liability has a right to a decision on his/her case as soon as possible after sentencing and a right to appeal to the Administrative Appeals Tribunal against a decision that he/she be deported.
4. It is the policy of the Australian Government that recommendations of the Administrative Appeals Tribunal should be overturned by the Minister only in exceptional circumstances and only when strong evidence can be produced to justify his decision. Furthermore, it is the policy of the Government that, when the Minister decides to deport a person contrary to a recommendation of the Tribunal, the Minister will table in the Parliament at the first opportunity a statement of his/her reasons for doing so. (Emphasis added)
5. The Government recognises Australia's obligations under international law, particularly the International Covenant on Civil and Political Rights. It has taken into consideration views expressed by the Human Rights Commission. However, the Government is mindful of the need to balance a number of very important factors, especially: * the need for community protection against criminal behaviour;
* the requirement to take into consideration the legitimate human rights of an individual; * the need to protect the rights of other persons, including the family of the person concerned; and * the need to avoid discrimination when making deportation decisions.
GUIDELINES FOR DEPORTATION
6. The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/her family.
7. The greater the potential effect on the community or the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences.
8. Deportation of a person convicted of crimes may be appropriate when a person:
* constitutes a threat because there is a risk he/she will commit further offences if allowed to remain;
* has committed a crime so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence; or * has not established sufficient ties with Australia to have become a full member of the community and, by reason of his/her conduct is unsuitable for permanent residence in Australia.
9. Examples of serious offences which may render non-Australian citizens liable to deportation include:- * production, importation, distribution, trafficking or commercial dealing in heroin or other 'hard' addictive drugs or involvement in other illicit drugs on a significantly large scale (persons who embark upon drug-related crime for financial gain show a callous disregard for insidious effects on the health and welfare of Australia's young people); this does not necessarily apply to persons who use hard drugs for their own consumption who were not involved in the above illegal actions; * organised criminal activity (whether within Australia only or internationally); * serious sexual assaults whether or not accompanied by other violence (especially where there has been more than one sexual offence); * armed robbery;
* violence against the person; * kidnapping;
* blackmail;
* extortion.
Crimes against children, because of their vulnerability, take on a special significance, especially inducement to drugs, sexual assaults, violence, kidnapping and crimes taking unfair advantage of children.
10. Social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, can be discounted according to circumstances (e.g. marriage or the immigration to Australia of further family members).
11. Australia does not have an obligation to provide sanctuary for people who have broken the laws of another country. In any case it is neither feasible nor proper for the Australian Government to consider the propriety of the operation of criminal codes in other countries, nor even if it had the resources to obtain sufficient information, to attempt to anticipate the likely outcome of any charges overseas.
12. Thus the possibility of further criminal sanctions in the country in which a potential deportee expects to live if deported are generally not relevant to the main issue of protecting the Australian community and may not be persuasive when making a decision on deportation."
The correspondence between the applicant's solicitors and the Department
10. By letter dated 23 June 1992, the Department wrote to the applicant's solicitors. The letter, which is important for present purposes, was as follows:
"On 16 June 1992, the Minister decided not to revoke the deportation order against Mr Batey at this time. There are certain matters, set out in paragraphs 1 to 7 below, which are of concern to him and on which he invites Mr Batey's comment.
1. The Minister is mindful that it is open to him to choose not to apply the policy set out in paragraph 4 of the 1983 statement and to consider that, notwithstanding the lack of strong evidence, this is a particular case which warrants deportation despite the recommendation of the AAT. In this regard, Mr Justice McHugh said in the case of Haoucher v Minister for Immigration, and Ethnic Affairs (1989-1990) 169 CLR 648 that:
'Although s.66E(3) of the Act required the Minister to have regard to the recommendation of the AAT, he was not bound to follow either its recommendations or its findings: Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139, at pp 142 to 143. Nor in exercising his discretion was the Minister bound by the government's criminal deportation policy. The policy was a representation by the Minister as to the way in which he would exercise his discretion. But it created no estoppel against the Minister ... Counsel for the Appellant accepted that the Minister was not bound to apply the policy in considering whether the recommendation of the AAT should be followed.';
2. The particular nature of the offence and the facts surrounding its commission, Mr Batey's prior convictions and risk of his re-offending, even if that is assessed as small, are sufficient to take this particular case outside the policy set out in paragraph 4 of the 1983 policy statement.
3. This particular offence is so abhorrent and damaging to society that the Australian community cannot accept even a minimal risk of Mr Batey re-offending. Furthermore, the particular facts of the offence are so abhorrent that the Australian community rebels against having such a person within the community.
4. An offence in which, after mixing alcohol and pills, a person abducts a girl off the street and repeatedly commits violent sexual offences and chases her after she escapes, is one where deportation should proceed in all but the most exceptional cases. The Australian community should be protected from even the smallest risk of such offences occurring again.
5. Although Mr Batey will suffer some hardship by being deported, that hardship is not extreme given that he has family in England and that the best interests of Australia are paramount.
6. This is a case in which paragraph 4 of the 1983 policy statement should not be applied and the Minister, in the exercise of his discretion, should decide to deport Mr Batey despite the AAT recommendation.
6. The AAT did not place sufficient weight upon the seriousness or the nature of the offence and the fact that Mr Batey has family in England who will support and help him. Insufficient consideration was given to Mr Batey's prior convictions and his attitude in prison and the AAT did not realistically consider his recent rehabilitation. Furthermore, even if the risk of re-offending is minimal, such a risk is unacceptable to the community given the nature of the offence and the damage it causes to society.
7. It is in the best interests of Australia and the community to deport Mr Batey despite the AAT recommendation and the policy contained in paragraph 4 of the 1983 policy statement.
The Minister requires that your comments on the issues raised in this letter, as well as any other representations you would like to make, should be made and submitted in writing within 24 days of the date of this letter, that is, by 7 July 1992."
By letter dated 3 July 1992, the applicant's solicitors wrote to the Department a letter which commenced as follows:
"We refer to your letter dated 23 June, 1992 concerning our abovenamed client.
It is understood from your letter dated 23 June, 1992 that the Minister seeks to deport our client notwithstanding the recommendations of the Administrative Appeals Tribunal. It is understood that the Minister is of the view that 'exceptional circumstances' exist in our clients case, which circumstances justify the Minister's decision not to follow the recommendations of the Administrative Appeals Tribunal.
As we understand your letter, these 'exceptional circumstances' appear to be as follows:-
1. The serious nature of the offence;
2. The facts surrounding the commission of the offence;
3. Our clients prior convictions;
4. The risk of his re-offending;
5. The fact that our client has family in England who will support and help him;
6. The Administrative Appeals Tribunal gave insufficient consideration to our clients prior conviction and his attitude in prison;
7. The Administrative Appeals Tribunal did not realistically consider his recent rehabilitation;
8. Even given that the risk of re-offending is minimal such a risk is unacceptable to the community given the nature of the offence and the damage it causes to society. The Australian community cannot accept even a minimal risk of our client re-offending and the particular facts of the offence are so abhorrent that the Australian community rebels against having such a person within the community..."
The letter went on to address these matters in detail.
By letter dated 3 July 1992, the Department wrote to the applicant's solicitors enclosing, and seeking comments on, a psychologist's report expressing an opinion on the question of recidivism among sex offenders generally and in the case of the applicant.
By a message sent to the applicant's solicitors by facsimile transmission dated 14 July 1992, the Department elaborated upon some of the matters raised in its letter dated 23 June.
By letter to the Department dated 24 July 1992, the applicant's solicitors put a number of additional submissions for the consideration of the Minister. The Department responded by letter dated 28 July 1992 in which it sought the views of the applicant's solicitors on several issues. These matters were addressed by the applicant's solicitors in their letter dated 31 July.
The Minister's decision
17. By letter to the applicant's solicitors dated 17 August 1992, the Department stated that the Minister "after considering the further information supplied by you regarding your clients case, has decided to affirm the deportation order..."
The present application
18. By his amended application, the applicant now seeks to review the decision of the Minister that the deportation order not be revoked.
The Minister's statement of reasons
19. On 10 September 1992, after the commencement of these proceedings, pursuant to a request by the applicant, the Minister provided a statement of his reasons for "affirming" the deportation order. The statement, after setting out the Minister's findings of fact and stating the evidence on which those findings were based, gave the following reasons for the decision:
"REASONS FOR MY DECISION
I assessed the seriousness or nature of the offences by reference to the circumstances of the offence, the sentencing judge's remarks, and the length of the sentence imposed.
The circumstances of the offence as described by the victim show an attack of uncontrolled physical and sexual violence. The trial judge and the judges of the Court of Criminal Appeal were unanimous in their condemnation of the attack perpetrated by Mr Batey. In particular, their Honours mention the brutality and the random nature of the attack. A sentence of thirteen years' imprisonment imposed by the trial judge and endorsed by the Court of Criminal Appeal indicates how seriously the crime was viewed.
In addition, the AAT stated the following:
'I would add that, it was also cowardly. The actions of the applicant at the relevant time appear to have been impulsive and not pre-meditated. The effect of alcohol and drugs was no doubt a contributing factor but was not an excuse by any means.' The AAT's conclusion on the seriousness of the crime, one which Mr Batey's legal representatives submit I should adopt is as follows:
'My view is then that whilst the offences are serious a consideration of the remorse the applicant has displayed concerning them, his facing up to his problems head on and dealing with them with vigour and success, and his very praiseworthy efforts and apparent victory with his own rehabilitation reduce by a not insignificant degree the importance one should attach to this seriousness in the context of considering deportation for this man.' In addition, I am asked to accept the AAT's conclusion, stated at page 65 of its decision:
'Whilst the crimes in themselves are very offensive and abhorrent I do not consider that in isolation these offences should be regarded as sufficient to justify deportation. Mr Batey was just 19 at the time of the offence and his background to that juncture whilst not of a high standard, was not such as to cause alarm to the community.'
I have not considered the offensiveness or abhorrence of the crime in isolation. I do not agree that the seriousness of the crime can be mitigated by events occurring subsequent to the commission of the crime. The importance of any consideration of the seriousness of the crime is that it indicates the nature of the sexually and physically violent act Mr Batey is capable of committing. I endorse the above comments which deal with the seriousness of the crime. It is difficult to imagine a more serious commission of the offence of rape. The sentence of thirteen years imprisonment is an indication of their Honour's view as to the extreme seriousness of the crime. The attack occurred suddenly and without warning and, as far as the victim was concerned, was completely unprovoked. The nature of the crime when viewed in conjunction with the risk of recidivism makes it unacceptable that the community should bear any further risk.
The AAT concluded that the risk of recidivism in Mr Batey's case was 'quite minimal'. It appears that substantial weight was placed on the evidence of Mr Lannen. The Tribunal also assessed Mr Batey's demeanour and considered that he had shown a remarkable change in attitude. Mr Batey's legal representatives, since the AAT decision, have submitted that I should place great weight on Mr Lannen's report. In particular, I am asked to consider Mr Lannen's statement in his report of 19 August 1991 which compares Mr Batey to other members of society. It states: 'His successful completion of the Sex Offenders Program and current testing give no indication of likelihood of re-offending or being dependent on alcohol. On the contrary, given his incarceration and extensive therapy and deep remorse he is less likely to offend than general members of society.' (My (i.e. The Minister's) emphasis added)
A statement of this order ignores the fact that Mr Batey has, in the past, committed a horrendous crime. Mr Batey has shown that he is capable of an extremely violent act manifested in the form of a sexual offence, which cannot be said of members of the general public. In my opinion, I do not consider that Mr Batey can be viewed as a lesser risk than members of the general public. This view is reinforced by Mr Lannen's own comments at the AAT hearing. Mr Batey's legal representatives have referred me to those comments (extracted at page 39 of the AAT's decision). Mr Lannen was asked how Mr Batey's remaining in Australia would contribute to his further rehabilitation and his general well being. Mr Lannen's answer, amongst other things, was that he could see the benefit of Mr Batey continuing to live in a supervised environment. It is inconsistent for Mr Lannen to assert, on the one hand, that general members of the public pose a greater risk than Mr Batey and, on the other hand, to state that Mr Batey's rehabilitation would benefit from being in a supervised environment.
I assessed that, in a balanced assessment of the risk of recidivism, the following factors should be taken into account:
. rehabilitation - clearly, Mr Batey has shown by his attendance at the SOTP and by his good results at this and other courses that he is willing to deal with his offence and to respond more appropriately in the future. I consider that his progress in this area and the positive contribution he has made to future SOTP courses as favourable;
. remorse - Mr Batey appears, on all accounts, to show sincere remorse for his actions. Again, this is an issue favourable to Mr Batey;
. prior convictions and behaviour in prison - while Mr Batey's behaviour during the last three years in prison has been good, he has had a number of convictions in his preceding five years in prison as well as convictions between 1978 and 1982. In my view, this indicates that, in an uncontrolled environment or without the appropriate stimulus, Mr Batey may again be exposed to a risk of reoffending; . risk of reversion to alcohol - as Mr Batey was intoxicated at the time of his offence, any future use of alcohol may again be conducive to further offending. Mr Batey continued to use alcohol in the earlier part of his imprisonment, although I accept that Mr Batey has stated that he will abstain from alcohol. One could not state confidently that, in taking his place as a general member of the community in the long term and without supervision, there will be a complete abstention from alcohol; . circumstances of the crime - Mr Batey's crime was characterised by a complete lack of provocation on the part of the victim. This point did not go unnoticed by the trial judge and the judges on the Court of Criminal Appeal. With regard to the risk of recidivism, it clearly indicates that the cause of the offence emanated completely from within Mr Batey. While rehabilitation programs may treat the symptoms of sexual offences and offer appropriate responses and coping mechanisms, the unknown factor still lies within Mr Batey himself.
I have not given much weight to the statistical possibilities of recidivism offered by Mr Lannen as a result of studies of the SOTP programme. Statistics are of little use when one considers an individual case. The reality is that there is a real risk, however minimal, of recidivism. My conclusion on recidivism, canvassing the factors mentioned above, though higher than the AAT's conclusion on recidivism, does not depart greatly from the AAT. I consider that it is low. (Emphasis added by the Court) I have considered the issue of Mr Batey's hardship. In all cases, hardship has two elements - removal from Australia and resettlement in the country of birth. I accept that he would face hardship on being separated from his Australian family and that those ties are stronger. However, Mr Batey is in an unusually advantageous position where he has one parent still living overseas who can help with his resettlement. The presence of Mr Batey's immediate family in the United Kingdom, in my view, reduces his hardship upon resettlement. It does not subtract from the hardship he would face by having to leave Australia. I do not accept the submission by Mr Batey's legal representatives that his Australian ties far outweigh his ties overseas. The AAT conducts an important role in reviewing the deportation decision and making recommendations to the Minister. It is for this reason that the policy of the government is that 'recommendations of the Administrative Appeals Tribunal should be overturned by the Minister only in exceptional circumstances and only when strong evidence can be produced to justify his decision.' However, the fact that the AAT's power is recommendatory indicates that the ultimate responsibility for the criminal deportation process, one which has a direct bearing on the well being of the community, is entrusted in the Minister of State responsible for the portfolio. It is an untenable proposition that the Minister is always bound to accept the recommendation of the AAT to revoke a deportation order. In the circumstances outlined above, where I disagree with important conclusions reached by the AAT, I consider that this is strong justification not to follow the recommendation of the AAT. The Minister is accountable to the community at large should a person who is allowed to remain in Australia reoffend against the community. The personal interests of Mr Batey and his family is weighed against the general community interests. Mr Batey's legal representatives have submitted to me that I should apply the following paragraph in the 1983 Policy on Criminal deportations: 'The purpose of deporting a criminal is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of that community that the benefit accruing to the community as a whole by his removal outweighs the hardship to the person concerned and to his family.'
As the Minister responsible for this portfolio I am required to judge the current sentiment of the community in regard to the choice that it would exercise. Mr Batey's crime was a random act of extreme physical and sexual violence which may well have been life-threatening. It is my judgment that the Australian community would benefit from the removal of the threat of such a random act of violence re-occurring and that this removal would outweigh the obvious hardship to his family and to Mr Batey himself. This choice, taken on behalf of the community, takes account of the fact that the community will lose the positive contribution Mr Batey is now making.
In addition, paragraph 7 of that policy states that:
'The greater the potential effect on the community or the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences.' In these circumstances, I am asked to exercise my judgment as to whether it is an acceptable risk to allow Mr Batey to remain in Australia. Essentially this involves a judgment as to whether I can accept a small probability of a recurrence of the type of crime Mr Batey committed in 1983. I have stated above my findings on the seriousness of the crime and the risk of recidivism and the respects in which I depart from the AAT. In making these findings I have taken into account the submissions by Mr Batey's legal representatives. I consider that a recurrence of this crime would be devastating for any future victim and their family. In making this judgement on acceptable risk, I have not ignored Mr Batey's personal circumstances. His attendance at rehabilitation programs is complete and I consider that any community obligation to rehabilitate Mr Batey is satisfied. The presence of some members of his immediate family overseas will be important to his reintegration into that community. I accept that Mr Batey's current input to community work and rehabilitation programs are positive contributions to the community and that this factor mitigates against deportation. However, recidivism in the category of crime for which Mr Batey has been convicted will inflict very serious damage to the community. The potential damage caused by recidivism in Mr Batey's case outweighs the actual contribution he is now making. In all the circumstances of this case, having carefully considered all the evidence, the decision of the AAT and the submissions made by Mr Batey's legal representative, I concluded that, in the best interests of the Australian Community, the deportation order against Mr Batey should be affirmed."
The Court's jurisdiction
22. These proceedings are brought under s.5(1) of the AD(JR) Act. Review is available only if, within the meaning of the definition of s.3(1) of that statute, there is a relevant "decision...made...under an enactment". By s.3(2), a "decision" includes refusing to do an act. But what is the relevant decision, if any, under the migration statute in the present case?
By s.63(1) of the Act, it is provided as follows:
"63. (1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister, after considering the prescribed matters and no other matters, revokes the order, be deported accordingly."
By Reg. 180 of the Migration Regulations, it is relevantly provided as follows:
"180. For the purposes of subsection 63(1) of the Act, the following matters are prescribed to be considered by the Minister in relation to a person referred to in that subsection: ...
(c) whether:
...
(ii) revocation of the order for the deportation of the person has been recommended by the Administrative Appeals Tribunal and that recommendation has been accepted by the Minister;"
In my opinion, a refusal by the Minister to revoke pursuant to the power conferred by s.63(1) is a decision which may be reviewed under the AD(JR) Act.
Alternatively, as Davies J. pointed out in Barbaro v McPhee (1982) 42 ALR 147, there is another source of jurisdiction. Davies J. said (at 152):
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-cl (3) of cl 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 cl 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."
This reasoning was approved by McHugh J. in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 678.
The grounds of judicial review contended for by the applicant
28. The applicant puts his case in several ways. In the first place, the applicant says that the Minister acted improperly within the meaning of s.5(1)(e) of the AD(JR) Act in the sense explained by s.5(2)(g), that is-
"an exercise of power that is so unreasonable that no reasonable person could have so exercised the power."
Then it is said, in the alternative, that, within the meaning of s.5(1)(a) of the AD(JR) Act, there was a breach of the rules of natural justice in that the applicant was denied procedural fairness. He claims that the Minister chose not to apply Government policy without affording the applicant the opportunity to be heard "in relation to the circumstances relied upon by the Minister in not applying such policy." In this respect, reliance is placed upon Haoucher v Minister of State for Immigration and Ethnic Affairs, (1989) 169 CLR 648.
Conclusions
(a) Procedural fairness
30. In Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139 at 143, Gibbs C.J., Mason, Aickin and Wilson JJ., speaking of the earlier legislation, similar to that governing the present case, explained the Minister's position, in a case such as the present, where the Tribunal had recommended against deportation, as follows:
"Although the Minister would be obliged to reconsider the matter, he would not be bound to exclude from his consideration evidence which the Tribunal or this Court considered was of insufficient probative value, or to give weight to material which the Tribunal or this Court considered to be of decisive importance. He would not be required to accept as correct any views as to the facts, or as to the weight of the evidentiary material, expressed by the Tribunal or the Court; he would merely be required to have regard to the Tribunal's recommendations."
The matter was taken further in Haoucher. There also the Tribunal recommended against deportation. Notwithstanding the terms of para.4 of the policy (mentioned earlier in these reasons) the Minister rejected the recommendation without seeking any representations from the deportee. It was held that the deportee was entitled to know the matters which constituted "exceptional circumstances" and "strong evidence" so as to take his case out of para. 4 of the policy that the Minister would not depart from the recommendations of the Tribunal. It followed that the deportee had been denied procedural fairness.
Deane J. said (at 655):
"For so long as that published policy was operative, a deportee would reasonably be expected to see it as providing a critical reference point in determining the review of a deportation order. It has not been suggested on behalf of the respondent Minister that that policy was treated as inapplicable to the circumstances of the appellant's case. That being so, it is clear that the Minister engaged in a quite distinct and well-defined process of executive decision-making before determining that the Tribunal's recommendation 'should be overturned'. That decision-making process dealt with issues ('exceptional circumstances'; strong evidence') which had never before arisen for consideration. It was in the course of the Minister's purported discharge of the statutory obligation to reconsider the deportation order in the light of the Tribunal's recommendation."
Toohey J. said (at 667):
"But the Minister would not be justified in taking into account new facts indicating a greater likelihood of recidivism, without putting those facts to the appellant. The Minister could not take refuge in the argument that there was no new 'matter' to refer to the appellant. The considerations that led to the Minister not accepting the recommendation of the Tribunal have already been mentioned. Subject to one possible qualification, in no case did they require the Minister to reject facts found by the Tribunal; rather, they involved the Minister in taking a different view of those facts and in the end making a value judgment in terms of his perception of the hardship to the applicant and his family if he were deported, compared with the possibility of harm to the Australian community if he remained."
Toohey J. went on to say (at 668-9):
"In the Full Court of the Federal Court, Sheppard J. was of the view that, where the Minister proposed to depart from the announced criminal deportation policy, an opportunity should be given to the deportee to be heard in regard to that departure. It is unnecessary to express a view on that question for the Minister's decision not to accept the recommendation of the Tribunal did not, in my view, involve a departure from that policy. It is true that the Tribunal found that the circumstances of the appellant's 1985 conviction fell outside the category of 'hard, addictive drugs' and did not involve 'other illicit drugs on a 'significantly large scale'', hence were not within the examples of serious offences in par. 9 of the deportation policy. However, these are but examples and the Minister took the view that the offence was a serious one 'in view of the fact that the (appellant) was able to enter and was willing to enter commerce with dealers of prohibited drugs'. I do not think that either in form or in substance was there a departure from the deportation policy. The decision itself was a proper application of the deportation policy so long as there were 'exceptional circumstances' and there was 'strong evidence' to justify the decision. In the course of his judgment Lee J. observed: 'In the absence of identification of those exceptional circumstances, it is difficult to speculate what they may have been and the Minister appears to have regarded it as an exceptional circumstance that he had formed a view contrary to that of the Tribunal.' Whether there were exceptional circumstances and whether there was strong evidence are no doubt debatable questions. But these were matters which the Minister was required to assess for himself; he was engaging in an administrative, not a curial, process. Again, that is not to say that the assessment was immune from any challenge. But it is significant that before this Court the appellant did not argue that the decision complained of was an improper exercise of power (AD.(J.R.) Act, s.5(1)(e)) or that there was no evidence or other material to justify the making of that decision: s.5(1)(h). In particular, there was no complaint that the exercise of the power was so unreasonable that no reasonable person could have so exercised it: s.5(2)(g)."
McHugh J. said (at 684):
"It would be going too far, however, to hold that the Minister will always breach the policy in refusing to follow a recommendation of the A.A.T. unless he or she is in possession of evidence which was not before the A.A.T. The terms of the policy should not be read pedantically. If the critical findings of the A.A.T. were unreasonable, for example, the Minister would be entitled to assert that the case was exceptional and that strong evidence existed to overturn the A.A.T.'s recommendation. In the present case, however, the findings of the A.A.T. were based and reasonably open on the evidence. Whether or not the Minister disagreed with them, they cannot be described as unreasonable. Moreover, it is not easy to see how the four matters to which I have referred constituted 'exceptional circumstances' or 'strong evidence'. In the end, however, it is for the Minister and not for the courts to say whether there were 'exceptional circumstances' and 'strong evidence' available to justify his decision."
In the present case, reliance is placed by the applicant upon some of the statements made in the Department's letter dated 23 June 1992. It is true that, insofar as it invited submissions from the applicant, the letter is relevant for present purposes but it does not follow that the letter is a safe guide to the reasons of the Minister for the decision now challenged. In my view, those reasons are to be found in the Minister's statement. The earlier letter expressed no more than the tentative views of the Department at that stage. I propose now to turn to the Minister's reasons with a view to determining, in the first place, whether the Minister was, in truth, applying para.4 of the Government policy or departing from that policy.
In my opinion, the Minister's statement makes it clear that the Minister regarded himself as applying the policy rather than departing from it: the statement specifically refers to paras. 4 and 7 of the policy. On behalf of the applicant, it is said that the Minister paid only "lip service" to the policy. In other words, there was, it is suggested, a constructive failure to apply the policy and the applicant had, by analogy with Haoucher, no real opportunity to address the administrative issues which the Minister had to determine. But, in my opinion, the submission that there was in effect, a constructive failure to follow the policy is difficult to accept. It is true, for reasons to be developed later, that the precise basis upon which the Minister decided to depart from the reasoning of the Tribunal is not entirely clear in all respects. But it does not follow, in my view, that the Minister thereby intended to depart from the policy. Rather, the differences between the approaches of the Tribunal on the one hand, and of the Minister on the other, can, on the whole, be expressed as differences in emphasis and of degree rather than of kind. In other words, although there were different outcomes, both the Tribunal and the Minister sought to address the question for determination in the light of, and guided by, the statement of Government policy.
It must follow, in my opinion, that there was no denial of procedural fairness in the present case. As has been seen, the applicant was given ample opportunity to put a case to the Minister on the footing that the matter would be decided in accordance with Government policy. Accordingly, the claim under s.5(1)(a) must fail.
(b) "Manifestly unreasonable"
39. I turn next to the question whether the Minister's decision was so unreasonable that no reasonable person could have exercised that power within the meaning of s.5(2)(g).
In Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1986) 162 CLR 24, Mason J. said (at 41):
"...in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: ... I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'."
Mason J. went on to say (at 41-42):
"...in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied...But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits."
In Nikac v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65, a case arising in a context similar to the present, but decided before the High Court decision in Haoucher, Wilcox J. said (at 79):
"I do not think that it is correct to approach s.5(2)(g) by reference only to the question whether the ultimate decision, considered in isolation from the adopted reasoning, is capable of rational justification. There are cases of high authority in which the courts have examined the process of reasoning adopted by the decision-maker in order to determine whether the ultimate decision was unreasonable, in the sense used in s.5(2)(g)..."
Later, Wilcox J. observed (at 80-1):
"I have already made apparent my opinion that the offences themselves, and such risk of recidivism as exists in each case, cannot appropriately be described as constituting 'exceptional circumstances'. But it is another matter to say that a contrary view is unreasonable, in the sense of s.5(2)(g) of the Administrative Decisions (Judicial Review) Act. In that context, the word 'unreasonable', to adopt the words of Lord Diplock in Bromley London Borough Council v Greater London Council...refers to 'decisions that, looked at objectively, are so devoid of plausible justification that no reasonable body of persons could have reached them'. It is necessary to remember the observation made by Lord Hailsham L.C. in Re W (an Infant)...:
'Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individual's judgment with his own'.
Notwithstanding my own view about the Minister's conclusions that the circumstances in the cases of Mr Nikac and Mr Gogebakan are 'exceptional', I do not think that it is possible to say that the Minister's contrary view is devoid of plausible justification. The term 'exceptional circumstances' postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? Even if it be conceded that there is nothing very exceptional about drug offences appearing upon a list of convictions, there will always be differences in the circumstances of those offences. For example, I would not myself have thought that the particular offences committed by Mr Nikac were of such a nature as to constitute a reason for taking the unusual step of declining to accept the recommendation of the Tribunal, by whom both the offences and all the other relevant circumstances were considered. But it is impossible to categorise a different view as being devoid of plausible justification. Like beauty, 'exceptional circumstances' lies in the eye of the beholder."
In Barbaro v Minister for Immigration and Ethnic Affairs (No. 3) (1982) 71 FLR 198, another case arising in a context similar to the present, Smithers J. said (at 201):
"The onus of establishing the errors alleged above is on the applicant. Such an onus may in many cases be difficult to establish but in this case the basis of fact upon which the Minister proceeded and the reasoning by which he exercised his discretion is known. Both are set out in the statement and departmental memorandum set forth in the schedule. If, then, it is established that the basis of fact by reference to which the Minister exercised his discretion did not exist, or it is shown that he failed to take into account a relevant consideration such as the nature and extent of the hardship involved, or indeed that he failed for insubstantial reasons to give appropriate weight to them, the discretion may be said not to have been exercised in accordance with the intention of Parliament. It is not in conflict with the above that a discretion might not be exercised by reference to a fact not proved but one relating to a serious matter in respect of which the Minister considers sufficient suspicion exists to justify the exercise of discretion in the public interest as though it did exist.... But that is not this case. In this case the Minister made a finding of the alleged fact and exercised his discretion by reference to what he found to be a fact in existence.
That the Minister's decision may be reviewed where errors of the kind mentioned above have occurred arises from the jurisdiction of the Court to review Ministerial decisions where there is lack of bona fides or where it is apparent that the decision does not accord with the purpose for which the power was conferred or is based upon an incorrect basis of fact or was exercised unfairly. There is, of course, no suggestion of lack of bona fides in this case. What is in issue is the factual basis of the decision and the matters which were considered or not considered."
In the present case, there is no suggestion that any mistake of primary fact was made by the Minister.
As has been noted already, there are differences of emphasis and degree in the approaches taken respectively by the Tribunal on the one hand and by the Minister on the other. But can it be said that the Minister's approach was "so unreasonable that no reasonable person could have so exercised the power"?
In considering this question, the reasoning process of the Minister should be looked at as a whole. But, in order to deal with the submissions advanced on behalf of the applicant, it will be necessary to look at the matter under the three main areas of disagreement, namely: (1) the seriousness of the offence; (2) the risk of recidivism; and (3) hardship.
(1) The seriousness of the offence
48. As has been noted, contrary to the view expressed by the Tribunal, the Minister did "not agree that the seriousness of the crime can be mitigated by events occurring subsequent to the commission of the crime".
Whilst there is force in the reasoning of the Tribunal in this regard, I do not think it could be said, given the grave nature of the offences, that the approach of the Minister is "perverse" in the sense explained by the authorities.
(2) Risk of recidivism
50. The Tribunal said, in the course of its reasons:
"As to the possibility of recidivism there is a substantial body of acceptable, cogent and persuasive evidence that this possibility is very low indeed ... I believe accordingly that the possibility of recidivism is quite minimal."
It will be recalled that the Minister expressed his conclusion on this aspect as follows:
"I have not given much weight to the statistical possibilities of recidivism offered by Mr Lannen as a result of studies of the SOTP programme. Statistics are of little use when one considers an individual case. The reality is that there is a real risk, however minimal, of recidivism. My conclusion on recedivism, canvassing the factors mentioned above, though higher than the AAT's conclusion on recidivism, does not depart greatly from the AAT. I consider that it is low."
There is an apparent inconsistency in this reasoning. On the one hand, there is "the reality" of a "real risk, however minimal..."(my emphasis). On the other hand, the Minister's conclusion on the point is said not to "depart greatly" from the Tribunal and the possibility is said to be "low".
I have difficulty in following the logic of this approach. If a risk if "real", it is not apparent that it can at the same time be "minimal" or even "low". The positions appear to be inconsistent. It is not rationally open, on the one hand, to accept, substantially, the opinion of the Tribunal on the point and, at the same time, express the opinion that there was a "real" risk. Such an opinion would be quite contrary to the Tribunal's conclusion on this matter. It must follow, in my view, that, to this extent, the Minister's reasoning was "manifestly unreasonable". This was an important aspect of the Minister's deliberations and it must further follow, in my view, that, on this ground alone, the matter should be referred to the Minister for further consideration in accordance with the law.
(3) Hardship
54. The Tribunal said:
"The ties the applicant has with his mother and brother in England are clearly not nearly as close as those he has with the family in Australia."
It will be recalled that the Minister said:
"I do not accept the submission by Mr Batey's legal representatives that his Australian ties far outweigh his ties overseas."
Again, although there is force in the Tribunal's reasoning, it was not, in my view, "manifestly unreasonable" for the Minister to conclude to the contrary. Costs
Since the applicant has succeeded on only one of the several grounds for relief contended for, it is appropriate that he receive only two-thirds of his costs.
Orders
58. I make the following orders:
1. Order that the matter be referred to the respondent to be dealt
with in accordance with law.
2. Order that the respondent pay two-thirds of the applicant's costs.
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