Beach Petroleum NL v Johnson
[1993] FCA 283
•06 MAY 1993
Re: MAJED MAHMOUD HAOUCHER
And: THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. WAG167 OF 1992
FED No. 283
Number of pages - 13
Administrative Law
(1993) 120 ALR 362
(1993) 31 ALD 296 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Spender(1), Gummow(1) and Lee(1) JJ
CATCHWORDS
Administrative Law - Immigration - deportation - Administrative Appeals Tribunal recommendation that deportation order be reconsidered by Minister - whether Minister entitled to consider matters subsequent to recommendation - whether deportee notified of exceptional circumstances and strong evidence justifying rejection of AAT recommendation.
Migration Act 1958 ss.12, 55, 93, 180
Century Metals and Mining NL v. Yeomans (1989) 100 ALR 383
Haoucher v. Minister of State for Immigration and Ethnic Affairs (1989-1990) 169 CLR 648
Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1985-86) 162 CLR 24
Willis v. The Commonwealth (1946) 73 CLR 105
HEARING
PERTH, 19 March 1993
#DATE 6:5:1993
The Appellant appeared in person.
Counsel for the Respondent: G.K. Downes, QC and P.R. Macliver
Solicitor for the Respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
1. Appeal dismissed.
2. Appellant pay respondent's costs to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
SPENDER, GUMMOW AND LEE JJ This is an appeal from a single judge of this Court (French J) who on 4 December 1992 dismissed an application for judicial review of a decision by the Minister of State for Immigration, Local Government and Ethnic Affairs of 18 September 1992 affirming a deportation order in respect of Mr Haoucher made on 19 August 1986.
The matter has had a long curial history.
The 1986 order had been challenged by Mr Haoucher in the Administrative Appeals Tribunal (the 'AAT'), which on 29 January 1987 gave a decision in the following terms:
" (T)he Tribunal will remit the matter to the Minister for reconsideration in accordance with a recommendation that the deportation order dated 19 August 1986 in relation to the applicant be revoked. "
The remission of the matter to the Minister was made pursuant to s. 66E (now s. 180) of the Migration Act 1958, subsection 3 of which then provided:
" After reviewing a decision referred to in sub-section (1), the Tribunal shall either affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the Tribunal. "
The Tribunal in its reasons for decision referred to Mr Haoucher's contribution to the Australian community as a person in regular employment, his family and social ties in Australia, his previous record and conduct and his length of residence in this country. It referred to the hardship people in Australia would suffer and the hardship Mr Haoucher himself would suffer if he were to be deported. It noted the weakness of his ties with Lebanon and his good conduct in prison. In dealing with the risk of recidivism, the Tribunal said:
" On the evidence before the Tribunal, recidivism must be seen as a low risk. "
Notwithstanding the recommendation of the Tribunal, the Minister affirmed the deportation order. That decision was challenged in the Federal Court before a single judge and the Full Court, where Mr Haoucher was unsuccessful, but in 1990 he succeeded in the High Court on 7 June 1990, which ordered:
" Appeal allowed with costs.
Order that the judgment of the Full Court of the Federal Court be set aside and in lieu thereof it be ordered:
(1) That the appeal to that Court be allowed with costs.
(2) That the judgment of Forster J be set aside and that in lieu thereof the application be allowed with costs and the matter referred to the respondent to be dealt with in accordance with the judgment of this Court. "
The Minister was required to reconsider the position, giving Mr Haoucher an opportunity to be heard on the circumstances which the Minister considered might justify departing from the AAT recommendation.
A period of two years followed before the Minister ultimately made his decision on 18 September 1992 affirming the original deportation order. During that time Mr Haoucher was convicted of numerous offences. He sought judicial review of the decision of 18 September 1992 affirming the 1986 deportation order. French J on 4 December 1992 dismissed the application, hence this appeal.
The following history is taken from the trial judge's reasons for judgment, the correctness of the facts there set out being accepted on the appeal.
Majed Mahmoud Haoucher is a national of Lebanon, having been born in Tripoli on 3 October 1954. At the age of 22 he migrated to Australia, arriving in this country on 2 February 1977. On 15 January 1978 he went to Lebanon for a year during which time he married. He returned to Australia on 2 January 1979 but was unable to sponsor his wife to this country as she was under age. He divorced her on a second trip to Lebanon in February 1980. He came back to Australia after a month in his home country. At that time he had six brothers and five sisters living in Australia, all of whom are Australian citizens.
Between 1980 and 1983 he was convicted of six criminal offences all committed at different times and two of which involved assaults. He was warned in June 1981 by the Department of Immigration, Local Government and Ethnic Affairs ('DILGEA') that further transgressions of the law could lead to his deportation from this country. On 29 May 1985, having been convicted on his plea of guilty of the offence of being in possession of cannabis resin with intent to sell or supply it to another person, he was sentenced to imprisonment for five years with a non-parole period of 2 years. This was subsequently reduced by the Court of Criminal Appeal to 3 years imprisonment with a non-parole period of 18 months. On 5 October 1986 he was released on parole. In the meantime, on 19 August 1986, a delegate of the Minister for Immigration, Local Government and Ethnic Affairs ordered, pursuant to s. 12 of the Migration Act 1958 as it then stood, that Mr Haoucher be deported from Australia.
Section 12 of the Migration Act 1958 then provided:
" 12. 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. "
As earlier indicated, following the hearing in the Administrative Appeals Tribunal, the Tribunal remitted the matter for reconsideration in accordance with a recommendation that the deportation order dated 19 August 1986 in relation to the applicant be revoked. Consideration by the Minister of recommendations of the Administrative Appeals Tribunal was governed by a ministerial statement on Australia's criminal deportation policy, which included the following statement:
" 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. "
The trial judge noted that there appeared to be no communication subsequent to the judgment of the High Court between Mr Haoucher and the Department until 26 August 1991, when he received a letter dated 14 August 1991 requesting that he inform the Department by 6 September 1991 of "any development in your personal circumstances since the Tribunal's decision which you consider should be taken into account in the final decision".
Since his release on parole on 5 October 1986 and up to receipt of that letter, Mr Haoucher had been convicted of a number of offences as follows:
Date Name of Offence Penalty 5 June 1987 Possession of a
quantity of cannabis $200 fine 17 July 1990 Stealing $150 fine 1 August 1990 Possession of a
quantity of cannabis $100 fine 14 August 1990 False name $60 fine Stealing $200 fine 26 September 1990 Gaming at the Casino
while barred $100 fine 27 November 1990 Forging and uttering $400 fine 28 March 1991 Use of drugs $100 fine Stealing $250 fine 26 April 1991 Possession of cannabis 1 month imprisonment Forgery 1 month imprisonment Stealing (2 counts) 3 months imprisonment Unlawful possession 1 month imprisonment Uttering 1 month imprisonment
In respect of the offences for which Mr Haoucher was sentenced on 26 April 1991, the Stipendiary Magistrate, Mr Malley SM, said in his sentencing remarks:
" I have read the pre-sentence report and, whilst I may have some sympathy for your health problems and what went on, at the end of the day one comes to the conclusion, the inevitable conclusion, that you are a crook.
You have a prior record which is not good and, on two separate occasions - not once but on two separate occasions - you committed offences whilst you were on bail. That is just beyond the pale. You might have had a chance of maintaining your freedom if you had, perhaps, curtailed your activities, but the community has a right to be protected from people such as yourself.
I take into account what is in the pre-sentence report. I have also borne in mind the requirements under section 19A of the Criminal Code as to my responsibilities before imposing a custodial sentence, but in my view you are a dead-set candidate for imprisonment. "
The magistrate ordered some of the terms of imprisonment to be served concurrently and some to be served cumulatively, the net effect being a total of seven months imprisonment.
Mr Haoucher was serving the terms of imprisonment imposed on him on 26 April 1991 when the letter from the Department dated 14 August 1991 was received by him in Canning Vale Prison.
On 30 August 1991 Mr Haoucher responded to the Department's letter, stating that he was in prison and was due to be released on 13 September 1991. He made a number of submissions to the Department in that letter and requested further time to reply after his release on the basis that any further information could reach the Department by 30 September 1991. That request was granted by letter dated 30 August 1991 and following that letter Mr Haoucher arranged for his solicitors to communicate with the Department.
On 6 September 1991, Mr Donovan of the firm of solicitors Mazza McCallum and Robinson who then acted for Mr Haoucher, was advised by an officer of DILGEA that the decision-making process then underway was not the reconsideration of the order made on 19 August 1986 or the ministerial affirmation of that order on 12 May 1987. Rather, a fresh decision as to whether or not Mr Haoucher should be deported was being considered. In the event however, the Department proceeded to deal with the matter as a reconsideration of the original decision. On 9 September 1991, Mr Donovan was advised by the Department that it wished Mr Haoucher to place before it general submissions on the basis that submissions on various specified matters would be called for at a later date.
On 20 September 1991 Mr. Donovan advised the Department by facsimile transmission that his client did not propose making additional submissions other than those previously relied upon and an affidavit sworn in the Federal Court proceedings and dated 21 July 1987. He asserted that the Minister at that time could only take into account matters of fact that occurred prior to the Administrative Appeals Tribunal hearing and could not pay regard to incidents involving his client which had occurred since that time.
On about 8 July 1992 two officers of DILGEA attended at the prison and interviewed Mr Haoucher about his convictions and asked him to say why he should not be deported. Mr Donovan did not find out about this interview until he spoke with the applicant by telephone on 17 July 1992. In the meantime the Minister had decided on 16 July 1992 to affirm the original deportation order of August 1986.
Correspondence followed with the Department and on 31 July 1992 an Acting Assistant Secretary wrote to Mr Donovan in the following terms:
" RE MAJED HAOUCHER
I refer to your facsimile of 30 July 1992. I advise that any submissions you may have will be put before the Minister so that he may reconsider this matter. In order to assist you with those submissions, I have attached a copy of the minute to the Minister dated 15 July 1992 as well as the record of interview with Mr Haoucher taken on 8 July 1992.
If your submissions are not received in this Branch within 21 days of this letter, that is by COB 21 August 1992, it will be assumed that you have no submissions to make. The execution of Mr Haoucher's deportation order will not be pursued during this time. "
Attached to the letter was a copy of the minute to the Minister dated 15 July 1992, on which he had endorsed the decision of 16 July 1992 as well as a copy of the record of the interview with Mr. Haoucher taken at Canning Vale Prison on 8 July 1992. The minute took the form of a draft set of reasons for decision.
Since August 1991 Mr Haoucher had been convicted of more offences as follows:
14 October 1991 Stealing $100 fine 16 December 1991 Giving a false
address $100 fine Stealing $500 fine 14 January 1992 Gaming at the Casino
while barred $200 fine 24 January 1992 Sale of a poison $100 fine 15 May 1992 Possession of a
prohibited drug $1,250 fine 19 May 1992 Stealing (3 counts) 3 months imprisonment concurrent on each charge.
The minute stated, inter alia:
" Between 17 July 1990 and 19 May 1992 Mr Haoucher made a further 14 separate appearances in Court which resulted in convictions (see Attachment K). These convictions range from stealing and dishonesty offences to possession of cannabis and casino gaming whilst barred. He was asked about these convictions at interview. His explanations are recorded in the attached record of interview (see Attachment L). "
That interview between officers of the Department and Mr Haoucher on 8 July 1992 included the following questions and answers:
" Q. The AAT said in 1987 that you were a low risk of re-offending. You have committed many offences since 1990. What do you have to say if I said to you that you will continue to offend in the future?
A. Can't be doing all the time. Must find good Muslim girl, help with religion. Don't agree that I will re-offend, have to do the right thing. Q. What do you say if I say that you should be deported because of your continued criminal behaviour? A. Agree if re-offends in the future. But not right now. Sorry for crimes. Want to get marry. Does not want deportation.
...
Q. What is your reaction if I say you should be deported in spite of the fact that most of your family is in Australia?
A. Would like to be with family. Family has not been able to change behaviour. Muslim community in Sydney are willing to take me.
Q. What is your reaction if I say you should be deported in spite of the fact that you have lived in Australia since 1977?
A. No good to be deported, does not know what's going on there. Might get killed.
...
Q. What other arguments would you like to present to the Minister against your deportation? A. Wants to do the right thing when I get out. No more offences, trouble. Wants to go to Sydney. Will get looked after there. Out next Sunday, 19/7/92. "
The minute, under the heading "Nature of Mr Haoucher's Crimes" identified the conviction on 29 May 1985 for possession of cannabis and resin with intent to sell or supply as the most serious of these offences, but went on to say:
" This 1985 conviction has now been overtaken by the events of the last two years. There is a history of less serious offences over this period involving possession of cannabis, stealing and gambling.
Mr Haoucher's involvement with drugs appears to be extensive. He admitted at interview on 8 July 1992 to using 'speed' and being addicted to heroin. He stated that he obtained Rohypnol on prescription, but he has been convicted of selling this drug to other persons. The AAT found in 1987, based on Mr Haoucher's evidence, that he had never been involved in hard drugs. The addiction to heroin adds a new and more serious dimension to Mr Haoucher's criminal history. '
Under the heading "Risk of recidivism" the minute said:
" The crucial issue in the reconsideration of Mr Haoucher's deportation order, in the light of his repeated offences, is the risk of recidivism. It is submitted that this risk can only be assessed as extremely high.
...
The repeated pattern of offences in Mr Haoucher's case suggest a strong likelihood that he will again resort to crime in order to support a lifestyle characterised by drug use and unemployment. Whereas he denied using hard drugs before the Tribunal, his drug taking has now entered a new dimension because of his addiction to heroin. "
It made an assessment of his contribution to the Australian community, his family and social ties in Australia, the situation in Lebanon and the hardship to him should he be deported.
Under the heading "Opportunity for Mr Haoucher to put his case against deportation", having recited the curial history of the deportation order, the minute stated:
" The AAT examined the merits of this case on 19 December 1986. As mentioned previously, Mr Haoucher has offended repeatedly in the last two years. These facts were not before the AAT and did not constitute part of its recommendation. Mr Haoucher's recent offences constitute the 'strong evidence' which may justify the affirmation of the deportation order. "
After referring to the questions and answers of the interview of 8 July 1992 set out earlier, the minute stated:
" The above propositions are the 'exceptional circumstances' and 'strong evidence' which you may consider justify the affirmation of the deportation order. Mr Haoucher has been given the opportunity of commenting on them. You may consider that other additional factors should be put to Mr Haoucher for comment. If you nominate any additional factors, Mr Haoucher's comment will be sought in relation to them. "
The minute referred to the policy considerations under the Criminal Deportation Policy, and the minute stated:
" Paragraph 6 of that policy is particularly relevant to this case. It states:
' 6. The purpose of deporting a person who has been convicted of a criminal offence 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. '"
The minute recommended:
" ...in light of the above submission, and having regard to Mr Haoucher's statement as to why he should not be deported, that it is in the best interests of the Australian community to affirm the deportation order against Majed Mahmoud Haoucher; "
The Minister, Mr Hand, affirmed the deportation order on 16 July 1992.
Mr. Haoucher's solicitors sought provisions of various documents referred to under the heading "Evidence" in the minute and further material was sent and received on 6 August 1992. An extensive submission was made on behalf of Mr Haoucher and sent to the Department by fax on 21 August 1992.
That submission contended that the Minister was not entitled to take into account events occurring since the recommendation of the AAT on 2 January 1987. The submission spoke in explanation and mitigation of the conviction in 1985 for possession of cannabis resin with intent to sell or supply it to another. It was submitted that that conviction was not "major criminal conduct in the sense used in the Criminal Deportation Policy". The submission also advanced matters on the assumption that the Minister was entitled to take into account things that have happened since the recommendation of the AAT. The convictions incurred between 17 July 1990 and 19 May 1992 were categorised as being "relatively minor offences of dishonesty, possession of small quantities of drugs and other offences of a relatively minor nature". It said that the various offences for which he had been convicted fell outside the range of serious offences contemplated by the Criminal Deportation Policy. The submission made extensive reference to the personal consequences for Mr Haoucher and his family should deportation be effected. The final paragraph of the submission on Mr Haoucher's behalf contained the following:
" It is submitted that the recommendation of the Administrative Appeals Tribunal in this matter should be adopted by the Minister. Mr Houcher (sic) will be subjected to great hardship if he is deported. It is submitted that these considerations outweigh the risks faced by the Australian Community if Mr Haoucher is allowed to remain in the country. There are no expectional (sic) circumstances and no strong evidence that justifies a departure by the Minister from the recommendations of the Administrative Appeals Tribunal. "
Notwithstanding the extensive submission on behalf of Mr Haoucher, the Minister decided on 18 September 1992 to affirm the deportation order. Reasons were requested on 24 September 1992 and on the following day an application for an order of review was filed in the Federal Court.
The Minister's statement of reasons for decision was provided to Mr Haoucher's solicitors on 19 October 1992.
The application as initially filed, in addition to seeking a review of the decision to affirm the deportation order, sought review of a related decision to arrest Mr Haoucher and place him in custody pursuant to s. 93 of the Migration Act 1958.
The primary judge noted that:
" Mr Haoucher has been released from custody since that time and the latter decision is no longer challenged. "
Mr Haoucher was represented by Mr Donovan before French J but appeared on his own behalf in the appeal before the Full Court. This Court had the benefit of comprehensive written submissions on behalf of Mr Haoucher and Mr Haoucher acknowledged, as was clear from the content of those submissions, that he had received legal assistance in their preparation. At the time of the hearing of the appeal Mr Haoucher was in custody but not in respect of any aspect connected with the deportation order.
There were numerous grounds of review but counsel for Mr Haoucher at the hearing before French J indicated that there were two contentions on which the application relied.
1. That the Minister in considering the recommendation of the AAT was not entitled to take into account matters which had arisen since the recommendation was made.
2. That the Minister had failed to identify to Mr Haoucher, prior to making his decision, what exceptional circumstances and strong evidence existed to justify the rejection.
French J decided against Mr. Haoucher on both of these contentions. These were the same matters that were argued on the appeal. Apart from a submission highlighting the personal hardship that Mr. Haoucher would suffer should he be deported, they constituted the only matters on which the appeal was argued.
As to whether the Minister could take into account subsequent facts, Mr Haoucher submitted that French J had erred when he ruled that the Minister in reaching his decision to affirm the deportation order could take into account events arising subsequent to the recommendation of the AAT. Those events, of course, had not occurred at the time that the AAT made its recommendation. It was conceded that the Minister could take into account different evidence, form different opinions and give different weight to facts from those considered by the AAT (subject to the right of the proposed deportee to be heard), but it was submitted that the Minister could not take into account events that have occurred after the AAT recommendation. It was said that not only did the Minister in this particular case take into account events that occurred in time after the AAT decision, but he based his entire rejection of the AAT recommendation on those events.
It was said that the actions of the Minister in arriving at his decision based on events that occurred years after the AAT made its recommendation prevents the AAT process from being any benefit to Mr Haoucher at all. The submissions by Mr Haoucher make the point that initially the Minister was looking at making a fresh decision under s. 55 of the Migration Act as to whether to deport Mr Haoucher. Reference is made to the letter of 9 September 1991 earlier referred to. The submission on behalf of Mr Haoucher is that whereas submissions were initially called for by the Minister on that basis, the decision-making process ultimately adopted by the Minister was merely to reconsider the earlier deportation order pursuant to s. 180 of the Migration Act. The point was made that if the Minister had embarked on a fresh decision-making process under s. 55 of the Migration Act then Mr Haoucher would have the right to make a further application to the AAT pursuant to s. 180. That method would enable the Minister to take into account all otherwise relevant events but still enable effective review of the decision-making process to be undertaken by the AAT. That method would effectively see the Minister starting the decision-making process afresh. The complaint was made that the method ultimately adopted by the Minister has prevented a realistic involvement by the AAT.
The submissions by Mr Haoucher on this aspect of the appeal distill to the proposition that the facts and evidence that the Minister can take into account after the AAT recommendation do not include events that were not only not before the AAT but had not even occurred when the AAT was making its recommendation. Further complaint is made that the Minister implicitly is saying that although he said that there were "exceptional circumstances" and "strong evidence" which existed in May 1987, he is not now able to point to those matters and can only point to "exceptional circumstances" and "strong evidence" that has arisen out of events that have occurred since the middle of 1990.
This submission, which had been advanced before the primary judge, was not accepted by him. French J said:
" The AAT is part of a continuum in a decision making process with elements of external merit review. The Minister is not obliged to consider the case by reference to a snapshot of events frozen at the time that the Tribunal made its recommendation...In this case of course, one of the critically important findings of the Tribunal was that Mr Haoucher presented a low risk of recidivism. It would have been an absurd outcome had the Minister been unable to take into account subsequent events which falsified that prognosis. "
We agree with French J.
There is nothing in the Migration Act which requires the Minister to limit his reconsideration to events such as they existed at the time of the Tribunal's recommendation. Any such limitation would be not only inconvenient and artificial but would be inconsistent with the subject matter, scope and purpose of the Act. The Minister is charged with the very heavy responsibility under the Act to act in the interests of the Australian community and there is nothing to suggest that in the exercise of a very important function under the Act the Minister is obliged to act on material that may be inadequate, stale or erroneous.
In Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1985-86) 162 CLR 24, Gibbs CJ said at 30:
" ...if there is in the possession of the Minister, at the time when he considers the matter, material which shows that the position has changed since the Commissioner made his report, or that for any reason the Commissioner's comments were based on an erroneous view of the facts, the Minister is bound to take that material into account. The duty of the Minister is to consider the matters mentioned in s. 50(3) in the light of the actual facts as disclosed by the material in his possession at the time when he considers whether or not he is satisfied for the purposes of s. 11(1)(b), and not on a false assumption (whether the falsity is due to a change of circumstances or to an error on the part of the Commissioner) concerning the matters mentioned in s. 50(3). "
Mason J at 44 dealt with the question central to that appeal, namely, whether the Minister is bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. His Honour said at 44-45:
" Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. Considerable time may elapse between completion of the Commissioner's report and the date at which the Minister makes his decision; in the present case it was well over one and a half years. In that time there may be such a change of circumstances that the Commissioner's comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner's report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. "
In Century Metals and Mining NL v. Yeomans (1989) 100 ALR 383, the Full Court of the Federal Court (Fisher, Wilcox and Spender JJ) upheld an appeal, on the grounds of procedural unfairness or denial of natural justice, from a decision by a Minister concerning the use of existing stockpiles of phosphates and remitted the decisions to the Minister. At 420 the Court said:
" It is for the Minister to determine the scope of the matters which he will take into account in deciding what course now to pursue. Our point is that, in considering those matters which he considers to be relevant, he should do so upon the basis of the material available to him at this time. He should not restrict himself to the material which existed in June 1988. "
Nothing in Haoucher v. Minister of State for Immigration and Ethnic Affairs (1989-1990) 169 CLR 648 suggests that the Minister could not take into account events subsequent to the recommendation of the AAT. Indeed, comments by their Honours in that case are to the contrary. Dawson J (who was a dissentient in the result) said of the Minister's position on a reconsideration, at 667:
" ...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. "
Gaudron J (also a dissentient) said at 673:
" One possibility (and the one that falls for consideration in this appeal) is that the final decision is reached by reference to all the facts, and only the facts, dealt with in the recommendation. In that situation fairness does not require that a further opportunity be given to put a case in respect of those facts. Different considerations arise if regard is had to additional facts or if some fact is disregarded. In that situation the final decision maker is involved in determining a new or different case from that which is the subject of the recommendation. "
Observations by Deane J at 653 and 655, by Toohey J at 667 and by McHugh J at 683-4 are consistent with the position that the Minister, on a reconsideration, can take into account subsequent events, subject of course to giving the putative deportee the right to be heard in respect of those aspects of the matter.
It would be a surprising conclusion if the Minister could not take into account events subsequent to a recommendation by the AAT which were favourable to a putative deportee.
In this case a crucial question for consideration at all times was the risk that the appellant would be a recidivist. This was critical to the decision of the Administrative Appeals Tribunal and to the original decision of the Minister. It was also critical to the ultimate decision of the Minister.
When the Minister came to make his final decision he was in a position to assess the risk that the appellant would offend again by looking at what had happened in fact. As Latham CJ observed in Willis v. The Commonwealth (1946) 73 CLR 105 at 109:
" ...where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second-best. "
This aspect of the appeal fails.
The second question on the appeal was whether the Minister gave notice of the case against Mr Haoucher.
Toohey J in Haoucher said, at 671:
" If...the Minister asserts that the reconsideration was in accordance with the criminal deportation policy, the deportee is entitled to know what were the circumstances said to be 'exceptional' and what was the evidence said to be 'strong' and to be heard in answer. Procedural fairness requires that much. "
Mr Haoucher submitted that although it was possible to guess from the information that was provided to his solicitors by officers of the Department as to what it was that could be identified as being "exceptional circumstances" and "strong evidence", at no time was he specifically advised what those issues were. It was submitted that he was entitled to specific identification of those "exceptional circumstances" and "strong evidence" and he should not have to guess.
The correspondence from Mr Haoucher's solicitors of 20 September 1991, and the correspondence of 27 July 1992 from the Acting Assistant Secretary, enclosing the Minute to the Minister on which was endorsed his decision of 16 July 1992, has already been referred to.
There was further correspondence, much of the detail of which is earlier set out. The comprehensive submission furnished to the Minister by Mr Donovan on 21 August 1992 stated in the last paragraph:
" We note that Mr. Haoucher has not been provided with any information whatsoever as to specific matters or facts that the Minister proposes taking into account in making his decision. Mr Haoucher has not been invited to make submissions in respect of any specific circumstances that are proposed to be taken into account by the Minister and has not been advised as to whether the Minister considers there are any 'exceptional circumstances' or 'strong evidence' as referred to by the High Court in its decision in this matter and, if so, what those 'exceptional circumstances' or 'strong evidence' is. "
The objection taken by Mr Haoucher was that the "exceptional circumstances" or "strong evidence" which justified the Minister in departing from the recommendation of the Tribunal had not been identified.
The minute of 15 July 1992 referred to the repeated offences of Mr Haoucher in the last two years, and said that these facts would not be before the AAT and did not constitute part of its recommendation. The minute stated:
" Mr Haoucher's recent offences constitute the 'strong evidence' which may justify the affirmation of the deportation order. "
The minute continued with respect to the interview by Mr Haoucher of 8 July 1992 where the likelihood of further criminal conduct was put to him, and his response was sought concerning deportation, because of his continued criminal behaviour, in spite of the fact that most of his family was in Australia and in spite of the fact that he had lived in Australia since 1977.
These matters were identified in the minute as the "exceptional circumstances" and "strong evidence" justifying the affirmation of the deportation order.
Having regard to the minute and the covering letter, and the nature of the submission by Mr Haoucher in response, the solicitors for Mr Haoucher were fairly informed on what was being considered as "exceptional circumstances" and "strong evidence". The "exceptional circumstances" and "strong evidence" on which the Minister finally relied related entirely to the risk of recidivism as demonstrated by Mr Haoucher's criminal record, including his recent criminal record, and Mr Haoucher, through his solicitors, knew this and had the opportunity to be heard on it.
This basis of appeal also fails.
For these reasons the appeal should be dismissed with costs.
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