Ceskovic, Ivan De Mirko v The Minister for Immigration and Ethnic Affairs

FEDERAL COURT OF AUSTRP-LIA

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(NOTE:

T o be despatched t o Principal R e g i s t r y ,

Sydney for

o n - f o r w a r d i n g

t o

l a w pub l i shers )

Yigrat ion Act 1958 Section 12 - whether 14inister can t ake i n t o account conduct o ther than convict ion and sentence -

denia l of

n a t u r a l justice

by Minister - i f appl icable

cured before execution of order of depor ta t ion - assuming

den ia l no remedy on appeal t o Federal Court.

N.S.W. No. G19 of 1979

IVAN DE MIRKO CESKOVIC v. THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Coram:	Smithers J, St.John J, and Northrop J.
Sydney

13 November,

1979

I N THE FEDERAL COURT OF AUSTRALIA

NEW

SUUTH WALES

D I S T R I C T REGISTRY

No.

G 1 9 of

1 9 7 9

GENERAL

D I V I S I O N

I N THE PUTTER O F THE ADMINISTRATIVE

APPEALS TRIBUNAL ACT 1975 ( A S ~

)

. .

IVAN DE PIIRK0 CESKOVIC

P l a i n t i f f

AND:	I
THE MINISTER FOR INT'IIGRATION
AND ETHNIC AFFAIRS

D e f e n d a n t

ORDER

JUDGES MAKING ORDER :

Smithers J, St.John J, and N o r t h r o p J.

DATE

O F ORDER

13 N o v e m b e r ,

1979

VlHEFlE MADE :	Sydney
THE COURT ORDERS THAT :

T h a t the appeal i s d i s m i s s e d .

T h e P l a i n t i f f

t o pay

the D e f e n d a n t ' s

c o s t s of

the

appeal.

I N THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY	No. G19 of 1979
GENERAL DIVISION

I N THE MATTER OF THE ADMINISTRATIVE	I
APPEALS TRIBUNAL ACT 1975 (AS &MENDED)	,
! .
!
IVAN DE MIX0 CESKOVIC

P l a i n t l f f

AND:

THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Defendant

13 November, 1979

SMITHERS J, ST.JOHN J, AND NORTHROP J

;

By an order dated 17 February, 1977 Ivan de Mirko Ceskovic,

a l so known a s John Ivan Ceskovic, was ordered t o be deported

by t h e Honourable The Minister f o r Immigration and Ethnic

Af fa i r s , such order being expressed t o be i n pursuance of

t h e power conferred by Sect ion 12 of t h e Migration Act,

1958.

An appl ica t ion f o r an order of review was made t o and heard

by t h e Administrative Appeals Tribunal, t h e Deputy President

of rvhich was M r J u s t i c e Davies.

The learned Deputy President

affirmed,

on 27 March,

1979, t h e decis ion of t h e Minister

t h a t t h e appl icant be deported.

From t h a t decis ion t h e

p l a i n t i f f

Ceskovic appeals t o t h i s Court.

I n h i s no t ice of appeal,

a s amended,

t h e questions t o be

r a i s ed i n t h i s Court

were

s t a t e d a s follows:

( a )

The Tribunal misdirected i t s e l f on t h e s igni f icance

of t h e Declaration of t h e U.N.

High Commissioner

f o r Refugees

t h a t t h e P l a i n t i f f

had

t h e

s t a t u s a s

a	p o l i t i c a l refugee.

( b )

The decis ion was i n breach of Ar t i c l e 33 of t h e

convention

r e l a t i n g t o t h e

s t a t u s of

refugees.

( c )

That t h e decision was

a l so i n breach of Ar t i c l e 32

t h a t convention i n t h a t ,

t h e P l a i n t i f f

being

a t

present

i n pr ison,

does no t cons t i t u t e a

t h r e a t

t o publ ic

order

o r na t iona l

secur i ty .

( d )

The	Tribunal f a i l e d t o consider t h a t t h e T4inister1s

d i sc re t ionary powers

allowed by

s t a t u t e had

been

v a l i d l y

exercised.

( e )

The	Tribunal f a i l e d t o s a t i s f y i t s e l f t h a t t h e

Minister had

i n t h e exerc ise of

h i s d i sc re t ionary

powers

applied

t h e

cor rec t

c r i t e r i a .

( f )

The Tribunal applied t h e wrong

c r i t e r i a i n making

i t s decision.

(g)	The Tribunal admitted evidence and gave such evidence undue weight.

The obscuri ty and vagueness of

these grounds w a s only s l i g h t l y

diminished by t h e submissions advanced i n t h e i r support.

Section 12 of t h e Migration Act,

1958 (The Act) ,so f a r a s i s

relevant, i s i n t h e f ollowing terms :

12. Where an a l i e n has been convicted i n Aus t ra l i a of a crime of violence aga ins t t h e person . . . f o r which he has been sentenced t o imprisonment f o r one year o r longer, t h e b'Iinister may, . . . order t h e deportat ion

t h a t

a l i en .

Section l 4 of t h e Act provides t h a t i f it appears t o t h e

Plinister t h a t t h e conduct of

an a l i e n has been such t h a t he

should not be al lov~ed

t o remain

i n Aust ra l ia ,

t h e Minister

may,

subject t o t h e Section,

order t h e deportat ion of t h a t

a l i e n .

i s c l e a r from t h e matter before t h e Tribunal

t h a t conduct

t h e p l a i n t i f f o ther than t h a t conduct which

l e d t o convict ions f o r crimes of violence was

considered i n

t h e exerc ise of

t h e I"Iinisterls

d i s c r e t i on a s t o whether

o r

no t t o deport.

The Min is te r ' s

considerat ion of t h a t conduct

founded an argument, t h e main point of which was t h a t because

t h e r e was a power t o deport based on conduct i n Section 14,

t h e Minister i n exerc is ing his power under Section 12 could

no t have regard t o conduct o ther than t h e f a c t of being

convicted

t h e r e q u i s i t e

offence

and

receiving t h e r e q u i s i t e

penalty.

This argument was

not a s s i s t e d when t h e ground was

changed by

submitting t h a t t h e Minister should t ake i n t o

. . ./4

account only those aspec t s of

t h e p l a i n t i f f ' s

conduct which

could be regarded a s ameliorat ion and no t those aspects which could be regarded a s aggravation. The submission

based

Sect ion 12 t o t a l l y ignores

t h e d i s c r e t i on vested

i n t h e Minister by

t h e word

llmaylt.

was

a l so argued t h a t t h e Minister denied na tu ra l

j u s t i ce

t o t h e p l a i n t i f f i n t h e exerc ise of

h i s pourer.

Vhether

o r

not

t h e Minister i s bound

t o obey

t h e d i c t a t e s of

na tu ra l

j u s t i c e

r u l e s was

not

f u l l y argued

f o r t h e p l a i n t i f f

and

would be unwise i n t h e circumstances t o r u l e upon it.

Decision i s unnecessary because

i n our view t h e r e i s

absolute ly no

foundation f o r a

submission t h a t na tu ra l

j u s t i c e was i n f a c t denied.

Secondly,

on t h e assumption

t h a t it appl ies , had it been denied, t h e remedy i s not i n

t h i s Court on appeal from t h e Administrative Appeals Tribunal.

Thirdly,

if na tu ra l j u s t i c e was

denied by

t h e Minister ,

ce r t a in ly rias no t on t h e review of

t h e order by

t h e learned

Deputy President .

Counsel f o r t h e Minister r e f e r r ed us t o

The Queen v.

Commissioner of Pol ice ; ex p a r t e Ivus ic 20

F.L.R.

412, a decis ion of Connor J. i n t h e Supreme Court of

The

Austral ian Capi ta l Ter r i to ry where H i s Honour

considered

but

d id not

decide

~ i h e t h e r

observance of

t h e r u l e s of

na tu ra l

j u s t i c e was

required of

t h e Minister i n t h e exerc ise of

h l s

powers under Section 13 of t h e Act.

That Sect lon gives t h e

Minister a polver t o deport an immigrant,

I n t e r a l l a y who

has

been convicted of an offence punishable by death o r by

imprisonment f o r one year o r longer being an offence committed

wi th in f i v e years a f t e r en t ry by t h e immigrant l n t o Aust ra l ia .

Connor

d i d decide t h a t it would be

s u f f i c i e n t i f they were

observed a f t e r t h e order f o r depor ta t ion was	made	and before
it was executed.

It was

f u r t h e r submitted t h a t i n t h e considerat ion by

t h e

learned Deputy President

t h e p l a i n t i f f ' s propensi ty t o

v io l en t behaviour and being present on occasions when violence

has erupted,

t h a t t h e r e was

"the g la r ing omission of h i m

engaging i n any a c t i v i t i e s of

violence i n p r i sonn .

It i s

t r u e t h a t t h e learned Deputy

President

d id no t r e f e r t o t h e

absence of violence during incarcera t ion a s a matter he took

i n t o account,

but t h a t lvould obviously be explicable,

even i f

~t were

r e l l e d upon

i n t h e p l a i n t i f f ' s

favour,

on t h e l ack of

opportunity f o r violence whilst i n custody.

The Minister

s t a t e d t h a t he took

i n t o account i n exerc is ing

h i s powers t o deport a United Nations Convention on t h e s t a t u s

of refugees, A r t i c l e 32,

Paragraph 2 of which provides:

"The expulsion of such a refugee s h a l l be only i n

pursuance of a decis ion reached i n accordance 191ith

due process of law.

Except where compelling reasons

na t iona l

s ecu r i t y

o t h e n . ~ i s e

require ,

t h e refugee

s h a l l be

allowed t o submit evidence t o c l e a r himself,

and t o appeal t o and be represented f o r t h e purpose

before competent au thor i ty o r a person o r persons

spec i a l l y designated by t h e competent authority."

t h e p l a i n t i f f ' s

behalf ,

he having been accepted a s a

refugee by t h e Minister , it was submitted t h a t "due processT1

. . ./6

had

been

denied and

c e r t a i n de f in i t i ons formulated i n t h e

United S t a t e s of America

a s t o t h e meaning of

those words

were r e f e r r ed t o .

accept t h e submission of counsel f o r

t h e Minister t h a t t h e de f in i t i on of

"due process"

xvould

appear t o be i n accordance with t h e r e s t of

t h e paragraph

quoted and i n those circumstances ITdue process1I was accorded

t h e

p l a i n t i f f .

It i s apparent from t h e evidence before t h e Tribunal t h a t

t h e p l a i n t i f f

i s amply

qua l i f i ed f o r depor ta t ion because

h i s convictions,

t h e most

se r ious of ~vhlch was malicious

shooting with i n t e n t t o do grievous bodily harm f o r which he

was convicted i n t h e D i s t r i c t Court,

Sydney on 18 February,

1975

and f o r which a sentence of

s ix years penal servi tude was

imposed.

I n add i t ion he has convictions f o r o ther crimes of

violence and,

as t h e learned Deputy President pu t it, t h e

p l a i n t i f f

I1demonstrated a propensity t o become involved i n

disputes ~ ~ ~ h i c h

l e d t o violence and i n which persons o ther than

t h e appl icant

( p l a i n t i f f ) were

i n ju redn .

two

occasions t h e

p l a i n t i f f

shot human

beings,

one

f a t a l l y .

We	have ca re fu l l y considered t h e reasons of t h e learned Deputy

President f o r af f i rming t h e P!Iinisterls

decis ion independently

t h e p l a i n t i f f ' s

submissions as well a s with them

i n mind.

i s c l e a r t h a t a l l r e levan t

f a c t o r s were

taken

i n t o account

and	ca re fu l l y considered.

The appeal i s dismissed with cos ts .

I ce r t l f y that tr%.=&a& the X C&>

precedingpages are a t r u e copyof the

Reasons for Judgment herem of M y ~ o n o u s

M r . Jus t lce J 8.5.~u?su~

C*+- &S*-

JcLh, i h G l ~ ~ + - t c h z

ILeLzty

Associate

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Dated: \3.1\.19

ERRATUM

IVAN DE MIRI<O CESI<OVIC

THE MINISTER FOR I I r l M I G ~ T I O N

AND ETITNIC A F F A I R S

No.

G19 of

1979

SMITHERS, ST.JOITN AND NORTHROP JJ.

DATE O F ORDER :

13 NOVEMBER, 1979

Please substitute the attached page for the final page in the reasons for judgment.

i A. HUNTER

ASSOCIATE TO ST.JOHN J.

pz-ececling rages a r e a true copy of the

Peasons for J u d p e n t herein of LliC~onour.

Yr. Justice ~ . ~ L J L * c ~ S , LLL ~ L S ~ 53 ;I. G

L . &<L

i i CC ~ G X I L ~ C

Dated:['j.,l 79 .& F

/ t ~ ~ i - J c [ -

[1979] FCA 116

13 Nov 1979