Browne, Davey v Minister for Immigration and Multicultural Affairs
[1998] FCA 566
•29 MAY 1998
FEDERAL COURT OF AUSTRALIA
IMMIGRATION - Criminal deportation - Deportation order made against New Zealand citizen in 1995 - No appeal then made to Administrative Appeals Tribunal - Deportee subsequently formed a relationship with an Australian citizen and fathered a child by her - Application to Tribunal for extension of time to appeal then made but refused - Whether Tribunal erred in law in its consideration of extension of time application - Alleged failure to consider Australia’s obligations under Convention on the Rights of the Child - Substantive relevance of the Convention - Importance of detailed consideration of opposing primary considerations - Whether application for extension of time amounted to abuse of process.
Migration Act 1958, ss 200, 201 and 206
Administrative Appeals Tribunal Act 1975, s 29(7)
DAVEY BROWNE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and D CHAPPELL
NG1025 OF 1997
JUDGE: WILCOX J
PLACE: SYDNEY
DATE: 29 MAY 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG1025 of 1997
BETWEEN:
DAVEY BROWNE
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondentand
D CHAPPELL
Second RespondentJUDGE:
WILCOX J
DATE OF ORDER:
29 MAY 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The decision of the Administrative Appeals Tribunal refusing to extend the time for the making of an application for review of the decision to deport the applicant, Davey Browne, be set aside.
The application for extension of time be remitted to the Tribunal for hearing and determination according to law.
The first respondent, the Minister for Immigration and Multicultural Affairs, pay the applicant’s costs of the proceeding.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG1025 of 1997
BETWEEN:
DAVEY BROWNE
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondentand
D CHAPPELL
Second RespondentJUDGE
WILCOX J
DATE:
29 MAY 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX J: The applicant, Davey Browne, challenges a decision given by a Deputy President of the Administrative Appeals Tribunal, Dr D Chappell. The proceeding was originally based only on s 44 of the Administrative Appeals Tribunal Act 1975. The Minister for Immigration and Multicultural Affairs was the sole respondent. However, the applicant’s advisers became concerned the Court might not have power under that provision to grant the desired relief; accordingly, at the hearing counsel sought and obtained leave to amend the Application in such a way as to seek relief under the Administrative Decisions (Judicial Review) Act 1977, with Dr Chappell being joined as a respondent. Counsel for the Minister did not oppose this course, or the granting of an extension of time for making application under that Act. Dr Chappell appeared by his solicitor to submit to the order of the Court except as to costs.
The case arises under the criminal deportation provisions (Division 9 of Part 2) of the Migration Act 1958. Section 200 empowers the Minister to order the deportation of “a non-citizen to whom this Division applies”. Mr Browne is such a person. He is a New Zealand citizen who had been in Australia for less than ten years when he committed offences for which he was convicted in Australia and sentenced to imprisonment for a period of not less than one year: see s 201 (a), (b)(ii) and (c).
The facts
The factual background to the case was detailed by Dr Chappell:
“3.Mr Browne was born in the Cook Islands on 26 September 1968. Together with his parents, four brothers and one sister, he migrated to New Zealand when he was very young. He is now a New Zealand citizen. His parents and family continue to reside in New Zealand and he maintains regular contact with them. He has no family in Australia.
4.Mr Browne left school at the age of 16 and started a carpenter’s apprenticeship in New Zealand. He migrated to Australia in 1989 for the purpose of obtaining employment in the building industry following a slump in that business in New Zealand. He worked almost continuously in Australia for a number of years prior to committing the offences for which he is currently imprisoned. His employment was principally as a carpenter but he also worked as a machine operator and furniture removalist. He was unemployed at the time of committing the five robberies which took place during November and December, 1992.
5.Mr Browne was convicted on 14 April 1993 in the Sydney District Court on five charges of armed robbery and one charge of being in possession of a shortened firearm. He was sentenced to a minimum of five and a half years imprisonment to commence from 2 January 1993 and expire on 1 July 1998. An additional term of 18 months imprisonment was also imposed to commence on 2 July 1998 and to expire on 1 January 2000.
6.On 8 May 1995 a delegate of the Minister signed the deportation order against the applicant. Mr Browne was advised of this decision on 24 May 1995. At the same time he was also informed of his right to a review of the decision by the Tribunal, and was given a notice detailing the relevant procedures and information as well as an application form and advice that the right of appeal had to be exercised within 28 days of receipt of the deportation order.”
Mr Browne did not seek review of the decision within 28 days. However, on 9 June 1997 he made application to the Administrative Appeals Tribunal for an extension of time for making an application for review of the deportation decision. That application was made under s 29(7) of the Administrative Appeals Tribunal Act which reads:
“(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision ...”
The application for extension of time listed five grounds:
“(a)The applicant did not wish to challenge the decision until he had an Australian Citizen son who was born 5 weeks ago.
(b)He then sought legal advice and decided to appeal against the decision.
(c)There is no prejudice to the Respondent in granting this extension of time.
(d)If the applicant is deported, his son will be deprived either of his right to live in Australia or live with his father.
(e) His stepson will suffer the same fate.”
Dr Chappell accepted Mr Browne’s evidence that he did not initially contest the deportation decision because he believed at that time he had no grounds to justify a review. However, Dr Chappell said, “all this changed” when he met Skye Watson in January 1996. Dr Chappell explained:
“This meeting resulted from an introduction provided by a mutual friend and Ms Watson began visiting him in prison every weekend. Mr Browne said that he also played in the Malabar Sharks football team - a combined side made up of inmates and officers. These football games took place outside the confines of the prison. At a time while he was permitted to be outside the gaol participating in this sport he and Ms Watson conceived a child.
The child, Taina Anthony Browne, was born on 23 May 1997. Once Mr Browne had met Ms Watson, and after Taina was born, he had come to realise how important it was to remain in Australia so that Skye could maintain her links with her family, friends and social networks, and Taina could grow up in Australia as an Australian citizen. He intended to marry Ms Watson as soon as possible. He visited her and her family during the weekend leave that he had. In addition to Taina, Ms Watson had another son, Liam, by a previous relationship. Mr Browne said that he had formed a close relationship with Liam as well and that he regarded him as his son.”
Liam is about four years old. Ms Watson gave evidence to the Tribunal that, if Mr Browne were deported to New Zealand, she would go with him and would wish to take both the boys with her; however, she felt Liam’s father might resist such a move and she did not want to put him in that position.
Liam’s father, Jerome Faafeu, confirmed Ms Watson’s understanding of his attitude. He told the Tribunal he kept in regular contact with Liam and assisted financially with his upbringing. He said he thought he would seek to stop Ms Watson taking Liam to New Zealand because it would cause him great distress to lose contact with him and he did not have the money required to visit him in New Zealand.
At the date of the Tribunal hearing, Mr Browne was an inmate of the Long Bay Industrial Training Centre. Evidence was given by Greg Delprado, Senior Assistant Superintendent of the Centre, that Mr Browne had been a model prisoner while at Long Bay. He had graduated to a C3 classification under which he was allowed to work on an unsupervised basis outside the prison complex. At the time of the Tribunal hearing, he was working at the Maritime Museum and travelling to and from work by public transport. Mr Delprado said that, if Mr Browne had engaged in sexual relations with Ms Watson while he was supposed to be playing football, this would be a breach of prison regulations; even then, this would not change his view that Mr Browne was a person who deserved a C3 classification. Mr Delprado thought Mr Browne would have no difficulty obtaining parole when he became eligible for it.
The Tribunal decision
The application for extension of time was heard on 23 September 1997. On 21 November 1997 Dr Chappell handed down a decision refusing the application. He published reasons in which he set out the facts summarised above and mentioned that the representatives of both parties before him had “tailored their contentions” to the principles set out by me in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Although those principles were directed to applications for extension of time under the Administrative Decisions (Judicial Review) Act, Dr Chappell said they had been frequently applied to extension of time applications before the Tribunal. Dr Chappell quoted my summary of principles (omitting most citations) in this way:
“I venture to suggest ... the following principles to guide, not in any exhaustive manner, the exercise of the court’s discretion:
1.Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The ‘prescribed period’ of 28 days is not to be ignored ... Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained ... It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time ...
2.Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’: per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded ... The reasons for this distinction are not only the ‘need for finality in disputes’ ... but also the ‘fading from memory’ problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
3.Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension ...
4.However, the mere absence of prejudice is not enough to justify the grant of an extension ... In this context, public considerations often intrude ... A delay which may result, if the application is successful, in the unsettling of other people ...or of established practices ... is likely to prove fatal to the application.
5.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted ...
6.Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion ...”
Dr Chappell added the observation that, although the principles are helpful guides to the exercise of discretion, they “must be balanced according to the individual case”. He separately discussed five matters: explanation for delay, applicant’s actions, prejudice to the respondent, merits of the case and fairness.
In relation to explanation for delay, Dr Chappell accepted Mr Browne’s evidence as to his reason for changing his mind about seeking to stay in Australia. He noted an observation of a Full Court of this Court in Comcare v A’Hearn (1993) 45 FCR 441 at 444 that, although it is to be expected an explanation will normally be given, “there is no rule that such an explanation is an essential precondition”. Dr Chappell commented:
“The change in the circumstances affecting Mr Browne’s personal life which had arisen from this relationship provided an understandable motivation for his changed attitude to the deportation decision. However, whether or not this amounts to an explanation which should trigger the exercise of the discretion to allow an extension of time requires consideration of the other principles referred to in the Hunter Valley case.”
In discussing the applicant’s actions, Dr Chappell noted the Hunter Valley distinction between the case of a person who, by non-curial means, had continued to make the decision-maker aware he or she contested the finality of the decision and one where the decision maker was allowed to believe the matter was finally concluded. He commented:
“The Tribunal has some difficulty distinguishing consideration of this issue from the preceding discussion of the explanation provided by the applicant for the delay. The two matters are in fact closely linked. There is an undoubted need for finality in disputes and the problem of fading memories of witnesses is also one of importance. There is no question that the applicant did rest on his rights for a period of almost two years, and that during this time the respondent would seem to have had reasonable grounds for believing that any dispute was finally concluded and that Mr Browne would be deported to New Zealand at the completion of his current prison sentence.”
In relation to prejudice, Dr Chappell said any prejudice in defending proceedings occasioned by the delay is a material factor that militates against the granting of an extension, but mere absence of prejudice is not sufficient to justify the granting of an extension. Mr Turner, on behalf of the applicant, claimed no prejudice would be suffered by the respondent if an extension was granted. Mr Vikneson, for the respondent, claimed two aspects of prejudice. First, the respondent might suffer because of the difficulty, if not impossibility, of locating any victims of the armed robbery offences committed by Mr Brown in 1992; if they were located, they would be reluctant to give evidence, in view of the passage of time, or their testimonies were likely to be less satisfactory than if the application had been filed within the prescribed time. Second, the Minister was entitled to treat the issue as closed and it was in the wider public interest to treat it as final. He referred to the “possibility of establishing a practice upon which other applicants could rely should this application be successful” and said the “result could lead to an abuse of process”. Dr Chappell observed:
“The Tribunal does have some sympathy with the submissions made by the respondent under this head. It acknowledges that the victims of the armed robberies might now be reluctant, with such a passage of time, to provide testimony about the impact upon them of the offences committed by Mr Browne. Of greater importance, however, is the potential for an abuse of process occurring as a result of the circumstances arising in this case. More about this will be said below.”
Turning to the merits of the case, Dr Chappell said it was inappropriate, on an extension of time application, to provide a full merits review; nonetheless, the merits of the case are relevant according to the Hunter Valley principles. He said:
“In undertaking a merits review of Mr Browne’s case the Tribunal would, according to Australia’s criminal deportation policy, give principal consideration to issues associated with the nature of the crime committed by Mr Browne, the possibility of recidivism, the contribution made by Mr Browne to the community, and any existing family and social ties that Mr Browne has to Australia. It is not appropriate for the Tribunal to make any binding findings of fact on any of these issues and it does not intend to do more than make some brief observations about each.”
The criminal deportation policy referred to by Dr Chappell is that enunciated by a former Minister for Immigration in 1992. The policy included the following provisions:
“6.It should be recognised that the decision to deport stems from the Minister’s responsibility to the Parliament and to the Australian community to protect the community from the possibility of further criminal behaviour or to expel from Australia those non-citizens who have seriously abused the privilege of residence accorded to them by the Australian community.
7.Consistent with Government policy, most weight should be given to the need to protect Australian society. Conversely, less weight should be given to the views of the offender and that person’s family and associates, and to the possibility of adverse consequences for them of deportation.
8.The Government recognises Australia’s obligations under international law, particularly to the International Covenant on Civil and Political Rights. 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.
9.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.
10.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.
11.Deportation of a person convicted of crime may be appropriate when a person:
.constitutes a threat because there is a risk that he/she will commit further offences if allowed to remain; or
.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.”
Among the examples of serious offences that might render non-citizens liable to deportation was armed robbery. Paragraph 13 of the policy stated:
“13.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).”
Paragraph 19 listed criteria:
“19.The most important broad criteria on which judgements will be based are the nature of the crime; the possibility of recidivism; the contribution the person has made to the community or may reasonably be expected to make in the future and the family and/or social ties that already exist. In particular the following factors will be taken into account when making a decision on whether a deportation order should be issued:
.the nature of the offence as outlined in paragraph 12 and the length of sentence imposed by the court;
.the person’s previous general record of conduct. The total criminal history of a person should be given significant weight in making a decision to deport. A person who has been previously warned about the liability for deportation and, notwithstanding that warning, commits a further deportable offence, should expect that the warning will be given serious weight in consideration of his case. A person with several previous convictions against Australian society should usually be judged in the light of that past behaviour;
. the risk of further offences;
.the extent of rehabilitation already achieved, the prospect of further rehabilitation and positive contribution to the community the person may reasonably [be] expected to make;
.the length of lawful residence in Australia, the strength of family, social, business and other ties in Australia.
.the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation or conversely the extent of support for deportation from persons directly affected;
. any unreasonable hardship the offender would suffer;
. ties with other countries;
.the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government;
.the likelihood that deportation of the offender would prevent or inhibit the commission of like offences by other persons.
This list is not exhaustive; if relevant, other factors that come to notice will be taken into account in individual cases.”
Dr Chappell obviously had the policy in mind when he said, in his reasons for decision, that “(t)he matter which is often of greatest significance in the context of a deportation decision is the nature of the offence or offences committed by the person being considered for deportation”. He noted armed robbery was listed as a “serious offence” and referred to the remarks of the sentencing judge, Judge Kinchington. The judge observed the robberies took place within a period of two months, between 6 November and 31 December 1992. He went on:
“I am told that in November 1992 you received word that your grandparents were ill and you needed money to get to New Zealand. That was the starting point of this episode of criminality. Having found out that it was easy to get money by threatening people with violence and getting money from them, you continued with the spate of robberies.
It would seem that you were lucky that you were caught when you were because in the last two robberies, you used a shortened firearm. What would have happened if you had not been caught at that stage no-one knows but it might have resulted in violence being applied to some of your victims if you had continued with this criminal activity that you had embarked upon.
I propose to treat each of these five armed robberies as part of the one episode of criminality and also approach the sentencing task involved therein from the principles of totality of sentence.
...
Armed robberies are too prevalent in our community. As I have indicated, the maximum sentence imposed by the law for the offence of armed robbery is twenty years penal servitude.
Both from a specific and a general deterrent point of view I have to send you to gaol.”
Dr Chappell went on:
“There is no doubt that the robberies committed by Mr Browne were viewed by the sentencing judge as serious and deserving of a severe penalty. Their gravity was exacerbated by the use of a firearm in two of these offences. While the possibility of recidivism may be low, and certainly the evidence presented to the Tribunal suggested Mr Browne has been a model prisoner, this is not in itself sufficient reason to reach a finding that Mr Browne would present no significant threat to the safety and wellbeing of the Australian community if he was permitted to stay.”
Dr Chappell noted that Mr Browne had no family ties in Australia until he developed his relationship with Ms Watson; this was after his liability for deportation arose. He referred to a submission by Mr Vikneson, for the Minister, that the rights of the child born of this relationship, Taina, were a primary consideration when weighing up the relevant discretionary considerations. However, Dr Chappell said Mr Browne had been incarcerated throughout the period since the child’s birth “and had not played any significant role in either providing for the child’s daily needs, or his paternal upbringing”. He concluded this segment of his reasons by saying:
“Having considered, however briefly, the various issues that would have to be weighed up by the Tribunal were it to undertake a full merits review of this case, it must be concluded that Mr Browne’s chance of substantive success in opposing his deportation would be quite slim. The gravity of the offences he committed, in tandem with the need to protect the Australian community would, in balance, most likely result in an affirmation of the deportation decision. Such a deportation would undoubtedly cause hardship to both Mr Browne and Ms Watson and their son but this fact alone would not be sufficient to outweigh the other factors referred to.”
In relation to the final factor, fairness, Dr Chappell said:
“The final principle to be considered requires consideration of fairness as between Mr Browne and other persons in a like position. Reference has already been made to paragraph 13 of the deportation policy which addresses the question of the weight to be given to social ties developed after a liability for deportation has arisen. The Tribunal is satisfied that if it were making a decision about deportation in the present case it would discount the relationship established with Ms Watson, in accord with this policy guideline. To do otherwise would be to place Mr Browne in an unduly advantageous position in contrast with other persons facing deportation who exercised their rights to review within the appropriate timeframe required under the Act. It could also encourage what amounts to an abuse of process by suggesting that the establishment of a relationship, after a decision to deport had been made, could subvert that decision. While not suggesting that this was the situation in regard to the relationship formed between Mr Browne and Ms Watson it still remains a factor which is relevant to the issue now before the Tribunal.”
Dr Chappell concluded:
“On the basis of this review of the circumstances surrounding this matter the Tribunal is satisfied that it would not be fair and equitable to extend the time for Mr Browne to lodge his application to contest the deportation decision. The explanation that he has provided for the delay in the lodgment of his application is not acceptable. It is an explanation given as a result of a change in personal circumstances which occurred some significant time after the original decision was made, and after the notification of that decision to Mr Browne. The respondent had every reason to believe that the case was one in which any dispute was finally concluded. There would be a possibility of prejudice to the respondent and to the broader community should an extension of time be granted. Even if such an extension were to be permitted the chance of Mr Browne succeeding on the merits of any review of the decision would be slim. It would also be unfair as between the applicant, and other persons in a like position, if the exercise of the Tribunal’s discretion were to allow an extension of time to take place.”
The Convention on the Rights of the Child
Before detailing counsel’s contentions, it may be useful to say something about the Convention on the Rights of the Child, mentioned by counsel in their submissions to me. This Convention came into force on 2 September 1990 and was ratified by Australia with effect from 16 January 1991. It contained a Preamble referring, amongst other things, to the importance of the family unit in society and the desirability “that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding”. Article 2 required States Parties to “respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind” and to “take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians or family members”. Article 3 relevantly provided:
“1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.”
Article 7.1 required the child be registered immediately after birth and have the rights from birth to a name and to acquire a nationality “and, as far as possible, the right to know and be cared for by his or her parents”. Article 9 dealt with separation of a child from his or her parents. It provided in part:
“1.States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”
Sub-article 4 made plain that the separation referred to in this article might be by “action initiated by a State Party” such as deportation.
In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 the High Court considered one aspect of the significance of the Convention to criminal deportation decisions. At 286-287 Mason CJ and Deane J observed it is “well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute”. It followed that a treaty not incorporated into Australian municipal law cannot operate as a source of individual rights and obligations under that law. The Convention has not been incorporated in this way. However, their Honours went on:
“But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.”
After referring to the influence of international conventions on the development by courts of the common law, their Honours turned to the issues of immediate relevance: whether the Convention was relevant to the exercise of the statutory discretion to make a criminal deportation order and, if so, whether Australia’s ratification of the Convention could give rise to a legitimate expectation that the decision maker will exercise that discretion in conformity with its terms. In relation to the first question, they held the decision to deport Mr Teoh, father of three children and stepfather of four more, was an “action concerning children” within the meaning of article 3 of the Convention. Consequently, the Convention was relevant to the decision. In relation to the second, they rejected a submission that a convention ratified by Australia but not incorporated into Australian municipal law could never give rise to a legitimate expectation. At 291 they said:
“... ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as ‘a primary consideration’.”
Mason CJ and Deane J further explained at 291-292:
“The existence of a legitimate expectation that a decision maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door. ...
But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.”
Toohey and Gaudron JJ expressed similar views. McHugh JJ dissented.
The decision in Teoh was given on 7 April 1995. It excited concern at a bureaucratic and political level. On 10 May 1995 the then Minister for Foreign Affairs (Senator Evans) and then Attorney General (Mr Lavarch) issued a joint statement concerning the case designed to “restore the position to what it was understood to be prior to the Teoh case”. Adverting to the reference by Mason CJ and Deane J to “statutory or executive indications to the contrary”, the Ministers said:
“We now make such a clear and express statement. We state, on behalf of the Government, that entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty not incorporated by legislation should be applied by decision makers. Any expectation that may arise does not provide a ground for review of a decision. This is so both for existing treaties and for future treaties that Australia may join.”
The Ministers referred to prospective legislation “to reinforce this statement and put beyond any doubt the status of these unlegislated international obligations”. Their government did introduce legislation but it lapsed on the prorogation of Parliament for the 1996 elections.
A new government came to power in those elections. On 25 February 1997 the new Minister for Foreign Affairs (Mr Downer) and Attorney General (Mr Williams) issued a replacement joint statement. The critical words of that statement were different from those of the earlier statement. They were:
“Therefore, we indicate on behalf of the Government that the act of entering into a treaty does not give rise to legitimate expectations in administrative law which could form the basis for challenging any administrative decision made from today. This is a clear expression by the Executive Government of the Commonwealth of a contrary indication referred to by the majority of the High Court in the Teoh Case.”
Subsequently, the government introduced into Parliament the Administrative Decisions (Effect of International Instruments) Bill 1997. As I understand the position, this Bill passed the House of Representatives last year but is still before the Senate.
The applicant’s contentions
Counsel for the applicant, Mr N J Williams and Mr S B Lloyd, commenced their argument by noting the import of the Tribunal’s refusal to extend time. Unless the deportation order is revoked, Mr Browne will be deported on his release from prison: see s 206(1) of the Migration Act. Assuming that Liam’s father remains in Australia, this inevitably means either Liam or Taina will be placed in the position of having one parent in Australia and the other parent in New Zealand. Counsel argue the Tribunal’s refusal to extend time denies to the applicant (and Ms Watson and the children) any opportunity of merits review; quite apart from the Convention, the interests of Ms Watson and the two children were matters the Tribunal was bound to take into account, but it failed properly to do so. Counsel concede Dr Chappell referred to “hardship to both Mr Browne and Ms Watson and their son” (but not Liam or his father) but they say he immediately discounted this hardship because of the terms of para 13 of the deportation policy. In relation to this aspect of their argument, counsel conclude:
“The Tribunal gave no separate consideration to the interests of Ms Watson and her children on the extension of time issue. That is, it did not consider whether, quite apart from its view of the merits of the substantive case, the importance of the matter for Ms Watson and her children was such as to justify extending time so that the merits could be fully considered. The Tribunal’s conclusions in para 33 refer neither to Ms Watson nor to her children. The Tribunal did not give proper, genuine and realistic consideration to their interests.”
When they turned to Teoh, counsel for the applicant contended the Tribunal neither took into account the best interests of the two children, as a primary consideration, nor notified Mr Browne it intended not to do so; this was a denial of procedural fairness. In response to a question concerning the effect of the two Ministerial joint statements, counsel submitted the relevant statement was that of Mr Downer and Mr Williams, since the Tribunal considered the application after that statement was made, and it was ineffective to exclude a legitimate expectation the Tribunal would act in accordance with the Convention. They gave two reasons: first, a general notification was insufficient, there had to be a notification to the affected party; second, the Downer-Williams statement (unlike the Evans-Lavarch statement) did not tell readers they should not expect government decision makers to act in accordance with a treaty; it merely made a statement, that happened to be contrary to the majority view in Teoh, about the legal effect of entering into a treaty. In relation to the first point, counsel mentioned a comment of Hill J, concerning the Evans-Lavarch statement, in Department of Immigration & Ethnic Affairs v Ram (1996) 69 FCR 431. His Honour said (at 437) that, by the words “executive indications to the contrary” in Teoh, Mason CJ and Deane J may have “intended to refer to statements made at the time the treaty was entered into, rather than to statements made years after the treaty came into force”. Hill J went on:
“When initially referring to executive comments, their Honours do so in the context of the act of ratification, an act that speaks both to the other parties to the Convention and to the people of Australia as well as to the world. I doubt their Honours contemplated a case where at the time of ratification, Australia had expressed to the world and to its people its intention to be bound by a treaty protecting the rights of children, but subsequently, one or more Ministers made statements suggesting that they at least had decided otherwise.”
Counsel for the applicant contended Dr Chappell erred in law in two respects in considering the matter of prejudice. First, they referred to his comment about the possible reluctance of victims of the armed robberies “to provide testimony about the impact upon them of the offences committed by Mr Browne”. Counsel argued that, while the nature and gravity of an applicant’s conduct is relevant to a decision whether to affirm a deportation order, the impact of the offences upon victims is not. Second, it was erroneous to treat Mr Browne’s belated application for extension of time as amounting to abuse of process. Counsel pointed out Dr Chappell accepted the genuiness of the relationship between Mr Browne and Ms Watson and that this was the reason for Mr Browne’s change of mind. There was no suggestion Mr Browne had been influenced, in entering into the relationship, by a desire thereby to improve his position in relation to deportation; consequently, it could not be an “abuse of process” for him to rely on that relationship as a ground for an extension of time. Counsel’s written submission on this point concluded:
“From a consideration of the two matters of which the Tribunal identified as prejudice to the respondent it is apparent that the Tribunal applied the wrong test. Neither of those matters was capable of amounting to prejudice of a relevant kind. There were no relevant rights or interests of the respondent or a third party which had been affected by the delay. The decision is one which will not be implemented until the expiration of the applicant’s sentence. No person has acted upon the decision to their detriment. Finality and certainty are not ends in themselves: Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 96.4.”
Seiler was a decision of French J relating to an application for extension of time under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act. The passage referred to by counsel was in these terms:
“The exercise of the discretion to extend time, for which s 11(1)(c) provides, must be informed by the purposes served by the statutory limitation and associated dispensing power. The limitation is directed to achieving certainty and finality in administrative decision-making. In the ordinary course, where a reviewable decision is taken, and the review procedure is not instituted within the prescribed period, the decision maker is entitled to proceed on the basis that the decision stands and will not be called into question by way of judicial review. Finality and certainty are not ends in themselves, but means to the end of efficient administration. If the relevant decision-maker or others act upon a decision after the prescribed period expires then the objective of efficient administration may be compromised if the decision can be challenged and set aside after that expiry. Time and resources may have been expended to no effect. Where it is clear that an applicant for review of an administrative decision has, at all times, pursued the reversal of that decision administratively then the statutory purpose is less likely to be jeopardised by a liberal approach to the grant of an extension of time.”
Counsel also cited Seiler in challenging Dr Chappell’s reasoning about the merits of the case. They argued a preliminary assessment that a case has strong prospects of success, if the time is extended, is clearly relevant to the determination whether to extend time; if time is not extended, the applicant loses a strong prospect of vindicating the rights or interests in question. However, according to counsel, the converse is not true; because of the danger that a preliminary assessment of a case as weak may be erroneous and result in the applicant being denied the opportunity to vindicate his or her rights, an assessment that a case has limited merit does no more than negate the existence of a factor that might otherwise count in the applicant’s favour. In Seiler French J said at 98:
“It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it.”
The respondent’s contentions
Mr S Gageler, counsel for the Minister, made three preliminary observations. First, he reminded me of the observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 about courts undertaking judicial review of administrative decisions not being concerned with mere looseness in language, or unhappy phrasing, in the reasons of administrative decision makers. The High Court said “the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”. The Court specifically warned against the danger “of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision”.
Secondly, Mr Gageler said “the nature of the matter before the Tribunal was essentially interlocutory” so there can be “no expectation ... that the Tribunal will express its reasons with the clarity or comprehensiveness that might be appropriate following a review on the merits”. Thirdly, the structure of the Tribunal’s reasons reflects the way in which both parties chose to direct their submissions.
It is convenient to say immediately that I accept all three of these observations, though it is pertinent to point out that the effect of the Tribunal’s decision is final, in a practical sense. Although I am of the opinion, expressed in a different context in Comcare v Grimes (1994) 50 FCR 601, that it is open to an applicant to bring a second application for an extension of time under s 29(7) of the Administrative Appeals Tribunal Act, it is most unlikely that a second application would succeed where the first application had been dismissed on the merits. It follows that Dr Chappell’s decision is final, in the sense that, in practical terms, it bars Mr Browne for all time from obtaining review of the deportation order. While the deportation order stands, it must be carried out; and, if Mr Browne is deported from Australia, he will be ineligible to return. He would not be entitled to the type of visa usually issued to New Zealand citizens, a special category visa under s 32 of the Migration Act, because he would be “a behaviour concern non-citizen” within the definition of that term in s 5(1) of the Act. In this situation, it is apparent that, although it is no doubt accurate to categorise the application for extension of time as interlocutory in the technical sense, the effect of its refusal is final, and extremely significant, from the viewpoint of Mr Browne and those affected by his prospective deportation.
Turning to particular arguments, Mr Gageler submitted it was not strictly necessary for the Tribunal to take into account the position of Ms Watson and her two children. In this context, he referred to an observation I made in Comcare v Grimes at 67, that s 29(7) of the Administrative Appeals Tribunal Act “does not indicate the matters that an applicant must establish in order to obtain an extension; this matter is left to the Tribunal”. Anyway, Mr Gageler said, Dr Chappell did in fact take into account the interests of Ms Watson and her two children; he referred to them in summarising the evidence and again in discussing the merits of the case, although in the latter place there is no mention of Liam. Mr Gageler submitted the Tribunal took the best interests of the children into account as a primary consideration; even if it had not, this would not invalidate the Tribunal’s decision. There would be no breach of the rules of natural justice as there is now no foundation for a legitimate expectation that administrative decision makers will act in conformity with the Convention on the Rights of the Child. In relation to this proposition, Mr Gageler relied on the Downer-Williams statement of 25 February 1997.
In dealing with prejudice to the respondent, Mr Gageler argued it was not incorrect for the Tribunal to consider the possible difficulty in now obtaining evidence of the impact of the offences on the victims; this is relevant to assessing the nature and gravity of the applicant’s criminal conduct.
The Tribunal’s reference to “abuse of process” needs to be considered, according to Mr Gageler, in the context of fairness as between the applicant and persons in a like position; the Tribunal was entitled to take into account the potential import of granting an extension on the integrity of the system of administrative review.
Finally, in relation to prospects of success, Mr Gageler submitted this was always relevant to an application for extension of time, whether the prospects be assessed as high or low. He referred to the decision of the Full Federal Court in Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 and that of the High Court in Jackamarra v Krakouer [1998] HCA 27.
Barrett concerned an application for extension of time under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act. The Court noted it was common ground “that it is proper to take into account, in an appropriate case, whether or not the application for an order of review has any real chance of success”. The Court accepted the correctness of that assumption but added “we are not to be taken as deciding that prospects of success must always be considered when determining whether to extend time under s 11(1)(c)”. Jackamarra was an appeal against a refusal of the Full Court of the Supreme Court of Western Australia to extend time for entering an appeal for hearing, the notice of appeal having been filed within the prescribed time. By majority (Brennan CJ, McHugh and Kirby JJ; Gummow and Hayne JJ dissenting) the High Court allowed the appeal and extended time. In a joint judgment Brennan CJ and McHugh J distinguished between “applications that seek to put at risk the substantive rights of the respondent”, as by appealing out of time, and applications concerning an appeal already properly instituted. They said it was reasonable to insist “that the time for appeal will not be extended unless the proposed appeal has some prospects of success” but, once an appeal is properly instituted, the merits are not relevant “unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time”. Kirby J took a similar approach.
Conclusion
I do not find it necessary to address all the issues raised by counsel. I have come to the conclusion, with respect to Dr Chappell, that his decision was legally erroneous in at least two respects. As it must be set aside, on those grounds at least, it does not matter whether there were also other errors. The two matters to which I refer are the Tribunal’s treatment of the Convention on the Rights of the Child and what it called “abuse of process”.
The Convention
I have already referred to the comment of Hill J in Ram concerning the possible ineffectiveness of the Evans-Lavarch joint statement to exclude the legitimate expectation identified in Teoh. This question is discussed at greater length by Associate Professor Margaret Allars in a Postscript to an article “One Small Step for Legal Doctrine, One Great Leap Towards Integrity in Government” that was published in the Sydney Law Review (vol 17, no 2, 204 at 239-241). I am not aware of any discussion about the Downer-Williams joint statement. Any difference in effectiveness, as between the two statements, is probably to the disadvantage of the Downer-Williams statement. As I have pointed out, that statement avoids a direct statement about actions and contents itself with a proposition of law. Any statement about actions is, at best, made only by implication.
I think it unnecessary to form an opinion, for the purposes of this case, about the effectiveness of the Downer-Williams joint statement. Because that question may be critically important in some other case, it is preferable for me not to express a view. It seems to me that, even if the Downer-Williams joint statement was effective to exclude a legitimate expectation, arising out of the mere fact of ratification of the Convention, the Tribunal was, in any event, obliged to apply the terms of the Convention in this case, as a matter of substantive law. Whatever the content of the procedural obligation in cases generally, in cases affecting children that constitute a review, after the announcement of the Criminal Deportation Policy in 1992, of a criminal deportation decision, that Policy imposes an obligation upon the Tribunal to apply the Convention. This matter was not considered in Teoh, no doubt because that case concerned a decision of the Immigration Review Panel made on 25 July 1991.
Mr Browne is in a stronger position than if he had to rely only on the Teoh doctrine, pursuant to which (but for one matter) it would be legally open to a decision maker such as the Administrative Appeals Tribunal by an express statement to defeat Mr Browne’s legitimate expectation that it would take the Convention into account. The one matter is the content of the Criminal Deportation Policy under which the Tribunal is bound, not merely to consider the Convention as a procedural obligation, but to apply it as a matter of substantive law. I will explain why this is so.
As I observed in Comcare v Grimes, s 29(7) of the Administrative Appeals Tribunal Act fails to specify the matters an applicant must establish in order to obtain an extension of time for an application for review; that is left to the Tribunal. But, of course, the criteria must be related to the nature of the particular primary decision and the subject matter, scope and purposes of the Act under which it was made: see per Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 and the authorities cited by him. Mr Browne’s application sought an extension of time in which to challenge a deportation order made under s 200 of the Migration Act. The deportation order was made in May 1995 by a delegate of the Minister against the background of the 1992 Criminal Deportation Policy. Dr Chappell appreciated this. Although he was dealing only with an extension of time application, and not reviewing the actual decision to make the deportation order, Dr Chappell (legitimately) regarded the terms of the Policy as something relevant to his exercise of discretion; he specifically referred to some of them. However, the Policy contained more than the terms referred to by Dr Chappell. Paragraph 19 required (and promised) that, in making a decision whether a deportation order should be issued, account would be taken, amongst other things, of “the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government”. Those treaties, in 1992 and in 1997, included the Convention on the Rights of the Child; and the obligations included the obligation, under article 3.1 of that Convention, to make the best interests of the child “a primary consideration”. If the Policy was relevant to the Tribunal’s consideration of the extension of time application, as Dr Chappell thought, all its terms were relevant. It follows that, leaving aside procedural fairness and the decision in Teoh, it was incumbent on Dr Chappell to consider, as substantive matters, the article 3.1 obligation and its appropriate effect on his decision.
It might be thought there is some inconsistency between the command of para 7 of the Criminal Deportation Policy to give “most weight” to the need to protect Australian society and the requirement of para 19 to take into account amongst other things, Australia’s obligations to make the best interests of the child a primary consideration. However, when para 7 is read as a whole, I think it becomes apparent the requirement of “most weight” is intended to be contrasted only with the matters set out in the remainder of the paragraph, which are to be accorded “less weight”. It is true they include possible adverse consequences for members of the offender’s family, who of course may include children. But this is merely a general statement. It cannot have been intended thereby to reduce the obligation under article 3.1 to a subsidiary one; that would change its very nature. No doubt this is why Mr Vikneson, on behalf of the Minister, submitted that Taina’s rights were a primary consideration in the decision Dr Chappell had to make. However, it is clear Dr Chappell failed to consider these matters. Although Dr Chappell made some references to Ms Watson and her two children, and commented that deportation would cause hardship, not only to Mr Browne but Ms Watson and Taina, he did not grapple with the obligation under the Convention to make the best interests of Taina (and Liam) a primary consideration. On the contrary, he specifically discounted Mr Browne’s relationship with Ms Watson, and inferentially his relationship with Taina, because the relationship between Mr Browne and Ms Watson arose after the liability for deportation arose. Indeed, Dr Chappell discounted Mr Browne’s relationship with Ms Watson, and the interests of the two children, almost to the point of oblivion. This is made apparent by the concluding sentence of his reasons where he said it would “be unfair as between the applicant, and other persons in a like position, if the exercise of the Tribunal’s discretion were to allow an extension of time to take place”. Dr Chappell did not suggest the “other persons” to whom he referred were all persons who had formed genuine relationships and fathered children after a deportation order had been made against them. He was obviously including, at least, people who had not formed any genuine relationship, or fathered any children; yet he said they were in a like position. He could only have so concluded if he had thought the relationship and the child to be irrelevant or insignificant matters.
As Mason CJ and Deane J pointed out in Teoh at 289, article 3.1 of the Convention makes the best interests of the child a primary consideration, not the primary consideration; “it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight”. It follows the ultimate decision need not necessarily be the decision most beneficial to the interests of the child. But the requirement of equal paramountcy does mean those interests are to be balanced equitably against the factors that tend to support a contrary decision.
Many criminal deportation decisions do not affect children. The Convention is, of course, irrelevant to such cases. Where they do, there will ordinarily be a tension between the decision that is in the best interests of the child and the objective, stated in para 7 of the Policy, of protecting Australian society by deporting the offender. How may this tension be resolved? Not, I suggest, by allowing protection of Australian society automatically to trump the best interests of the child; to take that course is to reduce the best interests of the child from a primary consideration to a subsidiary one. Yet it is apparent from Dr Chappell’s conclusion about the merits of the case that this was the approach he took. Although Dr Chappell was presumably aware of the obligation cast on Australia by article 3.1 of the Convention, he plainly failed to consider its implications.
A similar comment may be made about Dr Chappell’s emphasis on the date when the relationship between Mr Browne and Ms Watson arose. An obligation to make the best interests of the child a primary consideration could not rationally be discounted by the fact that the relationship between the child’s parents arose only after the expiration of a particular date. To take that view is to sacrifice the interests of the child to administrative convenience and/or deterrence of others from changing their minds about an appeal.
A decision maker confronted with two considerations, each of primary weight but pointing in opposite directions, may have a difficult task. It will ordinarily be possible adequately to discharge that task only by detailed consideration of all the circumstances of the case. In the present case, on one side of the ledger, was the desirability of eliminating any threat to the Australian community by Mr Browne’s possible recidivism: see para 7 of the Policy and the first point in para 11. [It could hardly be said the community was in rebellion against having Mr Browne in its midst and point three was clearly no longer applicable.] On the other side, was the certainty of disadvantage to one or more Australian-citizen children. If the Tribunal considered the threat to be sufficiently grave, it was entitled to conclude it outweighed the disadvantage. However, before it could rationally reach that conclusion, it was essential for it to investigate the extent of both the threat and the disadvantage. Dr Chappell did not do this. He conceded “the possibility of recidivism may be low” but said “this is not in itself sufficient reason to reach a finding that Mr Browne would present no significant threat to the safety and well being of the Australian community if he was permitted to stay”. What did this mean? The word “significant” is one of degree. How great was the threat? Quantification was essential if there was to be proper weighing between the threat and the disadvantage to the child or children.
Research publication No. 31 of the New South Wales Department of Corrective Services “Recidivism in NSW: General Study” by Barbara Thompson reports an investigation into the extent of recidivism of offenders discharged from full-time custody in the New South Wales prison system in 1990 and 1991. The paper defines recidivism as conviction, leading to a sentence of full-time custody in New South Wales, within two years of discharge. The study found an overall recidivism rate of 35% for males, but only 24% for persons discharged after a first custodial sentence, as will be Mr Browne’s position on release. As between offences, there were marked differences in recidivism rates. In the case of armed robbery, the rate was 16% for first imprisonment offenders. Of course, this statistic does not mean there is a 16% chance Mr Browne will reoffend. Even as a statistic, the figure must be read subject to qualifications. No doubt, some armed robbery first imprisonment offenders reoffend after the lapse of two years or outside New South Wales. On the other hand, the statistic does not distinguish between offenders who have a particular reason for re-offending, perhaps to feed a drug habit, and those that do not. More fundamentally, a statistic can never be more than that; it can say nothing about any particular individual. Ms Thompson made this point in her paper:
”... because an inmate is in a group where 50% recidivated in this study does not mean he or she has a 50% chance of recidivating. Research and commonsense both indicate recidivism is determined by a large variety of factors which could include such things as drug use after release, ability to get a job after release, social/family contact and support services after release and determination not to re-offend.”
It follows that, whilst it may be useful for a decision maker to note the incidence of recidivism for a particular offence, any real consideration of the threat to the Australian community posed by a particular individual must be based upon a consideration of the personality, history and circumstances of that individual.
In the present case Dr Chappell noted Mr Delprado’s evidence that Mr Browne had been a model prisoner while in Long Bay. Dr Chappell had undisputed evidence that Mr Browne had been working outside the prison for some time, travelling to and fro on public transport. Dr Chappell also had evidence that Mr Browne was currently permitted two days leave each weekend, which he spent with Ms Watson and Taina. But none of these matters found their way into his reasoning except, perhaps, by his concession that the possibility of recidivism may be “low”. More importantly, the reasoning evinces no consideration of the effect (if any) on Mr Browne’s personality, attitude and future activities of his imprisonment and his having formed an association with Ms Watson and become a father. I appreciate these are not easy matters to resolve; they can never be resolved with certainty. But it is a task regularly undertaken by Parole Boards. And Dr Chappell had the opportunity to assess the two people, Mr Browne and Ms Watson, who were most central to the task.
A similar comment may be made about the other side of the ledger. Dr Chappell had evidence that Mr Faafeu would oppose Ms Watson taking Liam to New Zealand. Mr Faafeu made no suggestion that, if she did, he too might move to New Zealand. But nobody investigated that possibility, although it was highly relevant to measurement of the extent of the disadvantage that might be occasioned to Liam by Mr Browne’s deportation.
In making these observations, I am conscious of the fact that the matter before Dr Chappell was an application for extension of time, not a review of the deportation decision itself. If he had determined, without first undertaking an analysis of the matters I have mentioned, that the obligation under article 3.1 of the Convention was of such significance that it was proper to extend time, in order that the obligation might be weighed against the factors favouring deportation, Dr Chappell could not be criticised for taking that course; he would have facilitated a full subsequent investigation, and weighing, of the competing considerations. However, to refuse an extension was to effect a result that preferred one consideration to another. To do this without undertaking a comprehensive investigation was to ignore Australia’s obligation under article 3.1 of the Convention and to fail to take into account a consideration relevant to the decision the Tribunal was required to make.
Abuse of process
Properly speaking, the term “abuse of process” refers to the use of legal process for the achievement of a purpose different to that for which it was designed: see Williams v Spautz (1992) 174 CLR 509 at 523. There was nothing before Dr Chappell that suggested Mr Browne had any purpose other than the obtaining of a further opportunity to have review of the deportation order that had been made against him. This was the very purpose for which s 29(7) of the Administrative Appeals Tribunal Act was designed. Accordingly, there could be no question of this being an abuse of process, within the usual meaning of that term. However, to dispose of the “abuse of process” point on that ground would, I think, be to take the course criticised by the High Court in Wu. It is appropriate to look beyond the language used by Dr Chappell and consider his substantive approach.
It will be recalled Mr Vikneson submitted the Minister would be prejudiced by an extension of time because he was entitled to treat the issue of Mr Browne’s deportation as closed. He referred to the “possibility of establishing a practice upon which other applicants could rely should this application be successful”. He said this “could lead to an abuse of process”. It seems Dr Chappell was impressed with this argument. He referred to it three times in his reasons. First, in the section of his reasons dealing with prejudice, Dr Chappell spoke of “the potential for an abuse of process occurring as a result of the circumstances arising in this case”. Later, under the hearing of “Fairness”, he said that not to discount the relationship established with Ms Watson “would be to place Mr Browne in an unduly advantageous position in contrast with other persons facing deportation who exercised their rights of review within the appropriate time frame required under the Act”. Third, Dr Chappell wrote in his “Conclusion” that “it would not be fair and equitable to extend the time for Mr Browne to lodge his application to contest the deportation decision”. He said the explanation provided for the delay was “not acceptable” because it was given as a result of changed circumstances; an extension would be “unfair as between the applicant and other persons in a like position”.
There are several problems about this reasoning. First, Dr Chappell seems not to have appreciated the width of his discretion. Principles such as those enunciated in Hunter Valley may assist consideration of an application to extend time, but they cannot limit the exercise of the discretion. Burchett J pointed this out in Poznak v Minister for Health (not reported, 14 March 1986) in a passage adopted by French J in Seiler:
“The authorities necessarily deal with an endless variety of situations. As a consequence, they show a constant change of emphasis on particular features. The cases set up signposts to guide the court’s discretion, but they do not erect fences to limit the breadth of the field within which the legislature has chosen to confer discretion upon the Court.”
The situation that confronted Dr Chappell illustrates Burchett J’s point about “endless variety”. Relatively unusually, as administrative decisions go, this particular decision was made several years before it was to be implemented. It involved an individual’s personal life. In the meantime, his personal life changed; a relationship developed and a child was born. Any proper exercise of the discretion had to take real account of these facts.
If Dr Chappell had thought Mr Browne’s relationship with Ms Watson was contrived for the purpose of avoiding deportation, this would be a reason for discounting that relationship - although the position of the children would remain an important matter - but it was illogical to say the formation of a genuine relationship “could also encourage what amounts to an abuse of process by suggesting that the establishment of a relationship, after a decision to deport had been made, could subvert that decision”. A contrived relationship might subvert a decision to deport, because formed in order to undermine it; a genuine relationship could not. By definition, it was not formed with the intention of affecting the decision.
It seems to me it was erroneous for Dr Chappell to direct himself that the relationship between Mr Browne and Ms Watson, which he accepted not to have been formed with a view to influencing the deportation decision, could constitute an abuse of the right to seek an extension of time. The whole point of a power to extend time is that it enables the repository of the power to meet unforeseen circumstances, to rectify any unfairness that might result from an inflexible time limit. An application for exercise of the power should be considered on its merits, not on the basis that it necessarily represents a potential subversion of the original decision.
Orders
The decision of the Tribunal should be set aside and the application for extension of time remitted to the Tribunal for hearing and determination according to law. The Minister must pay the applicant’s costs.
I certify that this and the preceding twenty-eight (28) are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox
Associate:
Dated: 29 May 1998
Counsel for the Applicant: N J Williams and S B Lloyd Solicitor for the Applicant: Ray Turner Counsel for the Respondent: S Gageler Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 May 1998
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