Crowe, K.M. v The Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 932

Re: KEVIN MARTIN CROWE
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G450 of 1992
FED No. 932
Number of pages - 8
Administrative Law
(1992) 39 FCR 58
(1992) 29 ALD 823 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)

CATCHWORDS

Administrative law - Migration - declaration by the Minister that it is undesirable that the applicant be permitted to remain in Australia - interlocutory relief sought to prevent removal of applicant from Australia pending determination of application - submission that decision unreasonable in the Wednesbury sense unsuccessful - construction and meaning of ss. 16, 55, 56 Migration Act 1958 - no serious question to be tried.

Migration Act 1958 - ss. 16, 55, 56

HEARING

MELBOURNE

#DATE 26:11:1992

Counsel for the Applicant: Mr R. Hay

Solicitors for the Applicant: Maurice Blackburn and Co.

Counsel for the Respondent: Mr K.H. Bell

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The applicant's notice of motion dated 23 November 1992 be dismissed.

2. Costs of respondent reserved.

3. The matter is adjourned to directions on 2 December 1992.

4. Liberty to apply is reserved to the parties.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court rules.

JUDGE1

KEELY J. By application dated 23 November 1992 Mr Kevin Martin Crowe ("the applicant") applied to review, amongst other things, the decision under s.16 of the Migration Act 1958 ("the Act"), of the Minister for Immigration, Local Government and Ethnic Affairs ("the Minister") on 19 October 1992 "to declare the Applicant undesirable" ("the decision"). It should be noted that the material before the court shows that the declaration was not in those terms. It followed the wording of s.16 of the Act and declared "that it is undesirable that (the applicant) be permitted to remain in Australia." Attention is drawn to that matter because of the submission by the applicant's counsel that s.16 "is not directed to the fact that a person is undesirable".

1. The applicant has moved, by notice filed on 23 November 1992, for interlocutory relief consisting of an order that:-
   

"all proceedings to remove the applicant from Australia be stayed pending the hearing and determination of the application."

1. The motion was supported by an affidavit by the solicitor for the applicant, who deposed, amongst other things, that (1) the declaration was made on 19 October 1992, (2) it "was furnished to the Applicant on or about 23 October 1992" and (3) if the applicant were removed from Australia he "would be unable to continue with his application for an order to review".

2. The applicant had not been supplied with a statement of reasons by the respondent Minister in respect of the declaration made under s.16 of the Act; the hearing was conducted by counsel for both parties on the assumption that the declaration was based upon the matters set out in the undated detailed submission to the Minister by Ms Cheryl Hannah, the acting State Director Victoria, which occupied 17 pages ("the Departmental submission").

3. In support of the application for interlocutory relief, the applicant's counsel submitted on two bases that there were serious questions to be tried. One was a submission that the Minister's decision was so unreasonable that no reasonable person could have made that decision. Counsel placed particular reliance upon certain passages in the Departmental submission, including paragraphs 36, 37, 38 and part of 39 which gave some support to the applicant.

4. In the Departmental submission there were several statements relating to assaults by the applicant, including assaults on his wife in October 1984 and April 1987, which assaults were said to have been admitted by the applicant in an affidavit.

5. The Departmental submission, referring to the applicant, said (paragraph 31) that the Minister:-
   

"may find that when placed in circumstances of emotional stress he may react unpredictably and with violence. This violent tendency could be seen as being reflected in his assaulting and then killing of Mrs Crowe, as well as in his convictions for aggravated assault and wilful and unlawful destruction of property (relating to his relationship with Sylvia Gilliard) ... even the presence of his children in the house did not prevent Mr Crowe from acting with extreme violence towards his wife."

1. The Departmental submission gave careful consideration to the s.16 question of "undesirability", concluding with a summary of matters in favour of the applicant and of matters against him. Before recommending that the Minister "determine that it is undesirable that Kevin Martin Crowe be permitted to remain in Australia", the Departmental submission referred to the need to balance various factors, saying:-
   

"Therefore, it is contended that your task is to balance the hardship to Mr Crowe, the contribution he has made and may make to Australia and the interests of his daughter Peggy, with the interests and protection of the Australian community. On balance it is suggested that there is a real risk of Mr Crowe being violent in the future should he be placed under stress in relationships which he develops, and that this outweighs the other considerations. It is submitted that the risk of violent behaviour is low, but that because of the severity of the damage it would cause to the community, it is an unacceptable risk and should be given conclusive weight."

1. Having carefully considered the whole of the Departmental submission, I accept the following submissions by the respondent's counsel:-
   

"... (it) demonstrates according to its terms a wholesale consideration of every fact that was put forward on behalf of the applicant and a balancing of those facts by reference to contra-considerations. ... The nature of the section 16 task is difficult. ... It requires the formation of a judgment. That judgment involves the balancing of questions of fact in order to come to a view as to whether or not it is undesirable that the exempt non-citizen be permitted to enter or remain in Australia. ... The decision-maker took into account the facts spoken of in paragraphs 37, 38 and 39, but .... the decision-maker's responsibility is not to accept what Mr Crowe says, but to do what the legislature requires under section 16 and to take all things into account to determine whether it is undesirable and those things include, not just what Mr Crowe says but what Mr Crowe has done. ..."

"... (the Departmental submission) shows an anxious and careful consideration of all of the matters that were put forward on behalf of the applicant on the one hand, and all of the matters which tended in favour of the making of the section 16 declaration on the other."

1. It is noted that the Minister did not accept the recommendation in the Departmental submission that he determine:-
   

"that it is undesirable that (the applicant) be permitted ... to re-enter Australia at a later date."

1. I accept the submission of the respondent's counsel that, on the material at present before the court,
   

"... the inference you should draw, in my submission, is that when the Minister had before him this document which shows the anxious deliberation that was undertaken in relation to this matter, that the Minister would read it and consider it and there is no evidence to suggest that he did otherwise. And, on that basis, your Honour, you could not be persuaded, in my submission, that there was any serious question to be tried in relation to the unreasonableness ground."

1. In my opinion the applicant cannot succeed in his submission that there is a serious question to be tried as to whether the Minister's decision was unreasonable in the Wednesbury sense.

2. The other submission by the applicant's counsel was that there is a serious question to be tried as to whether s.55 of the Act prevented the respondent from making a declaration under s.16 with respect to the applicant. Counsel relied upon the fact that s.55 confers upon the Minister a specific power to order the deportation of a person who is a non-citizen and who has been convicted of an offence in respect of which a sentence of a particular type had been pronounced. Counsel submitted "that the clear intention there is that a person who has been convicted of a criminal offence and has been in Australia for 10 years is not supposed to be removed from Australia" or, at least, is not to be removed if the Minister in making his decision is "relying on the criminal conviction." The basis of the submission was expressed as being :-
   "... that, if there is a general power
   conferred without limitation or
   qualification in an Act and there is also
   a special power which is subject to some
   limitation or qualification, the general
   power cannot be exercised to do that which
   is the subject of the special power."
   

3. Having considered that submission (which also is raised by the grounds set out in the application to review) I have reached the conclusion that it does not raise a serious question to be tried.

4. I accept the submission by the respondent's counsel that s.16 of the Act is dealing with a different subject matter from those dealt with in s.55 and s.56 and that s.16 is not to be read down by reference to either of those sections.

5. In my opinion s.55 confers a power to order deportation of a person who is a non-citizen, who has been in Australia as a permanent resident for under 10 years and has been convicted of an offence within a certain class. The section does not expressly or impliedly cut down in any way the general power given to the Minister by s.16 to declare "that it is undesirable that the exempt non-citizen be permitted to enter Australia or to remain in Australia".

6. The applicant has failed to show a serious question to be tried. In those circumstances it has not been necessary to consider the question of the balance of convenience. The motion is dismissed. In my opinion the respondent's application for costs should not be granted at this stage. Those costs will be reserved.