Collins v Minister for Immigration and Ethnic Affairs

[1981] FCA 162

Re: BRETT ANTHONY COLLINS
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1981) 58 FLR 407
NSW No. G6 of 1981
Immigration - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Deane(1) and Morling(1) JJ.

CATCHWORDS

Immigration - deportation - question whether weight is to be given to the fact of the Minister's decision as distinct from reasons for it - relevance of government policy.

Appeal - Administrative Appeals Tribunal - weight of evidence in Tribunal

Migration Act, 1973(Cth) s.13(a)

Administrative Appeals Tribunal Act 1975 (Cth) s.37(1), s.44(1)

Immigration and Aliens - Deportation - Review of decision by Administrative Appeals Tribunal - Whether weight is to be given to fact of Minister's decision as distinct from reasons for it - Relevance of government policy - Migration Act 1958 Cth), s. 13 (a) - Administrative Appeals Tribunal Act 1975 (Cth), ss. 37 (1), 44 (1).

Appeal - Administrative Appeals Tribunal - Appeal based on weight of evidence before Tribunal - Administrative Appeals Tribunal Act 1975 (Cth), ss. 37 (1), 44 (1).

HEADNOTE

On an appeal from a decision of the Administrative Appeals Tribunal affirming a deportation order made by the Minister for Immigration the appellant argued that: (1) the decision of the Tribunal was against the evidence or the weight of the evidence, and that the decison was unreasonable in all the circumstances; and (2) that the Tribunal erred in giving weight to an irrelevant decision.

Held: (1) An appellant attacking a conclusion of the Administrative Appeals Tribunal on the ground that there was a deficiency of proof amounting to an error of law assumes the task of showing that there was no material before the Tribunal upon which its conclusion could be properly based.

(2) Whilst the Tribunal is entitled to give weight to government policy and to the Minister's own reasons for reaching his decision, in forming its own view on the merits and deciding the case for itself, it is not entitled to attach any persuasive weight to the conclusion reached by the Minister.
Re Ladybird Children's Wear Pty. Ltd. (1976), 1 ALD 1: Drake v. Minister for Immigration and Ethnic Affairs (1979), 46 FLR 409, referred to.

(3) As it was possible that the Tribunal had placed weight upon the conclusion reached by the Minister, and not merely upon the reasons for the Minister's decision, the appellant was entitled to have his application for review redetermined without any weight being placed upon the Minister's decision.

HEARING

Sydney, 1981, July 20; October 1. #DATE 1:10:1981

APPEAL.

S. M. Littlemore, for the appellant.

P. Roberts and C. Williams, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Australian Legal Aid Office.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

R. R. BOADEN

ORDER

1. THE decision of the Administrative Appeals Tribunal affirming the order of the Minister for Immigration and Ethnic Affairs to deport Brett Anthony Collins be set aside.

2. THE matter be remitted to the Administrative Appeals Tribunal to be heard and decided again.

3. THE respondent pay the applicant's costs of this appeal.

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal affirming a decision of the Minister of State for Immigration and Ethnic Affairs ("the Minister") that the appellant be deported from Australia.

The appeal is brought pursuant to s.44(1) of the Administrative Appeals Tribunal Act, 1975 (Com) ("the Act") which provides that a party to a proceeding before the Tribunal may appeal to this Court from any decision of the Tribunal on a question of law.

The Minister's decision to deport the appellant was made pursuant to s.13(a) of the Migration Act, 1973 (Com) as amended. For present purposes, that section provides as follows:
"13. Subject to section fifteen of this Act, where (whether before or after the commencement of this Part) an immigrant -

(a) has been convicted in Australia of an offence punishable by death or by imprisonment for one year or longer, being an offence committed within five years after any entry by him into Australia;
. . . . . . . . . . . . . . . . . .

the Minister may order the deportation of the immigrant from Australia".

The deportation order was made by the Minister on 4 July 1980. It was in the following terms:
"Migration Act 1958

DEPORTATION ORDER

Whereas BRETT ANTHONY COLLINS formerly known as DAVID CHARLES HASS being a person not born in Australia, entered Australia as an immigrant on the Thirteenth day of January 1969 AND WHEREAS the said BRETT ANTHONY COLLINS was convicted in the Supreme Court holden at Sydney in the State of New South Wales on the twenty-first day of December 1971 of an offence punishable by imprisonment for one year or longer namely armed robbery which offence was committed on the eighth day of April 1971

Now I, Ian Malcolm MACPHEE the Minister of State for Immigration and Ethnic Affairs, DO HEREBY ORDER, in pursuance of the power conferred upon me by section thirteen of the Migration Act 1958 that the said BRETT ANTHONY COLLINS be deported from Australia".

After the order was served on the applicant on 5 August, 1980, an application for review of the order was made to the Administrative Appeals Tribunal. In due course, the Minister lodged a statement with the Tribunal in accordance with the provisions of s.37(1) of the Act. The statement set out the Minister's findings on material questions of fact and gave the reasons for his decision to issue the deportation order. It also referred to a statement of government policy relating to the deportation of persons convicted of criminal offences.

When the application came before the Tribunal, the Minister's statement was tendered by counsel for the Minister. Counsel for the appellant objected to the tender but it was admitted into evidence. However the evidence before the Tribunal was not limited to the material in the Minister's statement. Much oral evidence was called on both sides and we do not have any doubt that the appellant was afforded an adequate opportunity of presenting his case and testing the accuracy and weight of the material included in the Minister's statement.

In his decision the learned Deputy President of the Tribunal made a thorough and careful examination of all the material which had been placed before him. That material included evidence of the conviction of the appellant on 22 December, 1971 upon charges of armed robbery and common assault, upon which charges he was sentenced to 15 years and 2 years imprisonment respectively. There was also before the Tribunal much evidence which was favourable to the appellant. We do not find it necessary to refer in detail to the evidence, save to say that there was abundant material before his Honour justifying his decision to affirm the Minister's decision. We shall refer to this aspect of the matter later in these reasons.

The principles applicable to the determination by the Tribunal of an application to review a deportation order were considered in Drake v. Minister for Immigration and Ethnic Affairs ((1979) 2 A.L.D. 60). In that case it was held that the Tribunal is entitled to take account of any relevant government policy. But it is not entitled to abdicate its function of determining whether, on the material before it (as distinct from that before the decision-maker), the decision is the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant policy might be. At p. 68, Bowen C.J. and Deane J. said:
"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal".

After considering whether it was proper for the Minister to be guided by general relevant government policy not inconsistent with the provisions or the objects of the Migration Act, and holding that it was, their Honours said:
"In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the origional decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision conformed with whatever the relevant general government policy might be".

The learned Deputy President of the Tribunal made reference to the decision in Drake's Case in his decision and applied the reasoning in that case to the facts of the matter before him. He held, correctly in our view, that he was entitled to regard government policy as a relevant factor in the determination of the application for review. Moreover, he made his own independent and careful assessment of the factual material before him before arriving at his decision. His decision to affirm the Minister's decision was plainly a result of his own independent evaluation of the matters which he thought were relevant to the determination of the application.

However, it was submitted by counsel for the appellant that his Honour's reasons for decision disclose three errors of law, as follows: first, that he erred in giving weight to an irrelevant consideration, i.e. the Minister's decision to deport the applicant; secondly, that his decision was against the evidence or the weight of the evidence; and thirdly, that he arrived at a decision which was unreasonable in all the circumstances. We now turn to consider these submissions.

It is convenient to deal first with the second and third submissions.

A number of authorities was cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it choses. (See, s.33(1)(c) of the Administrative Appeals Tribunal Act, 1975.) An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based.

As we have indicated earlier in these reasons, there was, in the present case, abundant evidence to justify the decision by the Tribunal to affirm the Minister's decision. His Honour's decision meticulously refers to a great number of matters which were relevant to the determination of the review. Some of those matters were favourable to the appellant's case and some were not. His Honour carefully weighed them. It is clear that there is no valid basis for an argument that his Honour's weighing of the relevant material was defective or for a finding that the decision which his Honour reached was against the evidence or the weight of the evidence. Without accepting the proposition that the allegation of unreasonableness in itself raises any question of law, it is likewise clear that there is no valid basis for the submission that his Honour's decision was unreasonable or for a finding to that effect. The second and third submissions must be rejected.

In order to understand the first submission, it is necessary to set out the portion of his Honour's reasons from which it is alleged it can be seen that his Honour gave weight to an irrelevant consideration. His Honour said:
"Ultimately it has to be decided what is in the best interests of the Australian community, a decision which will weigh up all relevant aspects with which this review has been concerned, and in arriving at a decision some weight is to be given to the Minister's decision. It has been submitted that his decision might have been different if he had available to him evidence presented on the applicant's behalf to the Tribunal. It would follow, so runs the argument, that the Minister's decision should be accorded less weight than it otherwise might have. There may be cases where that decision should receive great weight or perhaps no weight e.g. if it were inconsistent with the Act it professes to expound (see Drake's case supra). Here I consider the decision should have and I do give it some weight".

It was argued that the Minister's decision referred to by his Honour was the decision to deport the appellant as distinct from the reasons which were given by the Minister in the statement submitted by him to the Tribunal pursuant to s.37 of the Act. Counsel for the Minister conceded that this was so. We think the distinction is fundamental and is of crucial importance in this appeal. If the concession was well founded, a difficulty immediately arises in placing any weight upon the Minister's decision for the purposes of the determination of the application for review of the same decision. It seems to us to be unsound in determining the correctness of a decision to treat the decision itself as being probative of its own correctness (cf. Re Ladybird (1976) 1 A.L.D. 1 at p. 5). The decision is, of course, a necessary jurisdictional basis for the making of an application for review. But it is no more than that.

As can be seen from the terms of the deportation order, the Minister's decision gives no reasons and is a mere statement to the effect that the Minister has exercised the power conferred upon him by the Migration Act. The relevance of the order is, for present purposes, that it gives rise to a right to invoke the jurisdiction of the Administrative Appeals Tribunal. In our opinion it does not have any further probative significance in the determination of the question whether, on the material before the Tribunal, the decision was the correct or preferable one.

When his Honour referred in the passage which we have quoted above to "the Minister's decision" he may have been intending to refer to the reasons given by the Minister in the statement which he furnished to the Tribunal pursuant to s.37 of the Act. As we have already indicated, that statement did include a reference to the reasons for his decision and to government policy. Drake's Case itself makes it clear that the Tribunal is entitled to give weight to government policy, and in a normal case would be expected to do so. The Tribunal must, however, act in accordance with law and this requires it to form its own view on the merits of the case. Moreover, we do not doubt that, in an appropriate case, the expressed reasons of the Minister may carry weight with the Tribunal because of the fact that the Tribunal is impressed by, or finds itself in agreement with, a line of reasoning or an analysis of established fact which those reasons contain. In such circumstances, the Tribunal may give weight to the Minister's reasons in the same way as it gives weight to the oral argument of the legal or other representatives of the parties appearing before it. There is, however, no presumption that the Minister's decision is correct and the Tribunal is neither required nor entitled to place weight, in the ultimate weighing process, upon the fact that the Minister has decided the issue before him, on the material before him, in a particular way. Putting to one side the position where the decision-maker is a person or Tribunal having special expertise where the position may conceivably be different, the actual decision does not, in itself, carry any weight.

Unfortunately, the language used by his Honour in the present case leaves us in doubt as to whether, when referring to "the Minister's decision", he was meaning to refer to the deportation order itself or to the process of reasoning adopted by the Minister in his s.37 statement (which incorporated the reference to government policy). As we have already indicated, the former approach would, in our opinion, manifest an error of law: the latter would not.

Having regard to the long and careful reasons given by his Honour and to the fact that the decision which he made was manifestly open to him, we are reluctant to arrive at a decision which will necessitate a reconsideration of the application for review. But it would only be proper for us to dismiss the appeal if it did not appear that his Honour placed weight on the Minister's decision to deport and applicant as distinct from the s.37 statement. As we have indicated, counsel for the Minister conceded that his Honour's reference to the Minister's decision was a reference only to the decision to deport and was not a reference to the reasons to be found in the Ministerial statement. On balance, it seems to us that this concession was rightly made. We are therefore of the opinion that we must uphold the first submission made on behalf of the appellant.

In the circumstances, there is no alternative to sending the matter back to the Tribunal for re-consideration. It cannot be said with confidence that the Tribunal would have come to the same conclusion if it had not placed any weight at all upon the Minister's decision to deport the appellant. That being so, the appellant is entitled to have his application for review re-determined without any weight being placed upon that decision. Accordingly, the appeal is allowed and the matter remitted to the Administrative Appeals Tribunal to be re-determined in accordance with these reasons. The Minister must pay the costs of the appeal.