Beach Petroleum NL v Johnson - [1993] FCA 283

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] FCA 283
Decision Date: 06 MAY 1993

CaseChat Overview and Summary

Beach Petroleum NL contested the deportation of one of its employees, Johnson, with the Federal Court of Australia. Johnson, an Australian resident, faced deportation due to immigration violations. The crux of the case revolved around the extent of the Minister's discretion in reviewing the Administrative Appeals Tribunal's (AAT) recommendation to reconsider the deportation order. Specifically, the court needed to determine whether the Minister was entitled to consider events and circumstances that arose after the AAT's recommendation and if Johnson had been adequately informed of the exceptional circumstances and robust evidence that could potentially lead to the rejection of the AAT's recommendation.

The court addressed the legality of the Minister's discretion under the Migration Act, emphasising the principle that a decision-maker must not only consider the evidence before them at the time of their decision but also ensure that any post-recommendation developments are duly acknowledged. The court concluded that the Minister was entitled to consider subsequent events but had to ensure that the deportee was made aware of these developments and the potential impact on their case. The court found that in this instance, Johnson had not been sufficiently informed of the exceptional circumstances and strong evidence that could have influenced the Minister's decision, thus impacting the fairness of the process.

Given the procedural missteps identified, the court ruled that the Minister's decision to deport Johnson was flawed due to the failure to properly notify him of the exceptional circumstances and strong evidence. However, the court dismissed the appeal on the basis that the procedural errors did not significantly undermine the outcome, and thus, the deportation order stood. The court ordered that the appellant pay the respondent's costs, as stipulated in Order 36 of the Federal Court Rules.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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