Djalic v MIMIA

[2005] HCATrans 245

[2005] HCATrans 245

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S235 of 2004

B e t w e e n -

DAVID DJALIC

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 2005, AT 3.33 PM

Copyright in the High Court of Australia

MR C.D. JACKSON:   May it please the Court, I appear for the applicant.  (instructed by Christopher Levingston & Associates)

MR G.T. JOHNSON:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

McHUGH J:   Yes, Mr Jackson.

MR JACKSON:   The case raises two points.  First of all, does the Court have the supplementary application book?

McHUGH J:   Yes, thank you.

MR JACKSON:   The first question for the Court to determine, or the special leave question, is whether, if one focuses on the actual considerations, motivations or purpose of the decision‑maker when exercising his power under section 501 of the Migration Act, whether if one focuses on the purpose rather than tries to impute a purpose from the fact that the effect of detention and what I would characterise as banishment, if one, rather than focus on the effect, focuses on the purpose, whether section 501(2) has to be read down in such a way that any matter that could be characterised as exclusively punitive in nature is an impermissible consideration.

GUMMOW J:   What do you mean by “punitive” in this context?

MR JACKSON:   Well, the concept in particular that I attack is the concept of, in this context, general deterrence.  The essence of general deterrence, in my submission, is that one does something unpleasant to a particular individual in order to deter others from doing that thing.  So that implicit in the very concept of general deterrence is an understanding in the person who is doing it that they are, in effect, punishing or making example ‑ ‑ ‑

McHUGH J:   That would not make it unconstitutional.  Administrative decision‑makers frequently exercise powers and make findings that judges do.  They make findings of fact, they apply the law, but that does not mean they are exercising judicial power.

MR JACKSON:   Well, the critical distinction that the court draws is between – well, could your Honour elaborate on the ‑ ‑ ‑

McHUGH J:   Well, for instance, a discipline, as was held in White’s Case - I think it is in 112 CLR ‑ ‑ ‑

GUMMOW J:   Within the public service.

McHUGH J:   In the public service.  You find public servants charged with a disciplinary offence and charges particularised.  The person may be fined, may be demoted.  This Court held that is not an exercise of judicial power.  To say that the fact that the Minister takes into account general deterrence does not mean that he is exercising judicial power in any way, because it is a fact that it is relevant to the public interest.  He is deporting somebody to deter other people from committing crimes within the community who could be deported.

MR JACKSON:   Yes.  Is your Honour referring to a Commonwealth jurisdiction in relation to the case ‑ ‑ ‑

McHUGH J:   Public servants?

MR JACKSON:   Yes.

McHUGH J:   Yes, White was a federal case.

GUMMOW J:   Sir Owen Dixon and two or three others said this in a couple of pages actually, I think.

McHUGH J:   Yes.

MR JACKSON:   Yes.  The focus of the applicant’s case is not on the fact that what one is doing may have a punitive effect, nor that it may involve what are effectively sanctions.  That is well established.  It also occurs in the jurisdiction in relation to the Medibank policing provisions.  So that much is unexceptional, and it is not contested by the applicant.  What is contested is whether one can take into account a consideration for the purposes of what can be characterised as holding up an example to others.  The history in a situation like this, you are talking about ‑ ‑ ‑

McHUGH J:   I would have thought the two main things a Minister would do in considering this sort of issue is (a) determine whether or not deportation would protect the community and, secondly, as an aspect of that, as to whether it would deter others and thereby protecting the community.  After all, general deterrence is an aspect of protecting the community.  The fact that it may operate harshly on your client does not mean that it is not something the Minister cannot take into account.

MR JACKSON:   Well, it does raise one further problem, and that is that in a case such as this, which is not all section 501 cases, you are dealing with a person who is being deported purely on the basis of criminal conduct for which he has already served his sentence.

GUMMOW J:   And is an alien.

MR JACKSON:   Yes.  I fully ‑ ‑ ‑

GUMMOW J:   Well, deportation of aliens in a sense is punitive in the sense of unpleasant or prejudicial to the alien.  That is always so.

MR JACKSON:   Yes.

GUMMOW J:   But that is within power.

MR JACKSON:   Yes.

GUMMOW J:   And it does not require the order of a court to bring it about.

MR JACKSON:   And that is not disputed for a moment.  What is disputed ‑ ‑ ‑

GUMMOW J:   That is why I cannot quite put my finger on what you say is the fatal flaw in this legislation.

MR JACKSON:   I do not say that the legislation is flawed.  I say that ‑ ‑ ‑

GUMMOW J:   You say it has to be read down for some reason.

MR JACKSON:   I say it has to be read down ‑ ‑ ‑

GUMMOW J:   Well, that is a flaw.

MR JACKSON:    ‑ ‑ ‑ so that considerations that are taken into account ‑ ‑ ‑

McHUGH J:   You say it has to be read in accordance with the Constitution and particularly the doctrine of separation of powers, and it is not legitimate for a minister to take into account general deterrence because that is an area reserved for the judiciary. Is that right?

MR JACKSON:   I do, and if I could move on to my second point.  The second point really requires an understanding that what is in the supplementary application book is all that this decision was based upon.

GUMMOW J:   What is the point?

McHUGH J:   What is the point?

MR JACKSON:   This is a process where Mr Djalic, who has lived in this country from the age of one year on, this is the process by which a decision is made to deprive his children of a father and deport him to a country that no longer even exists.  This decision is ‑ ‑ ‑

GUMMOW J:   He has been in prison a fair amount of time.

MR JACKSON:   Yes.

GUMMOW J:   Which would have had some impact on the parenting, I would have thought.

MR JACKSON:   Well, the application book contains his heartfelt, but not educated, response to that issue.  It is from page 44 onwards at the supplementary application book.

GUMMOW J:   But what is the point?

MR JACKSON:   Well, the point is ‑ ‑ ‑

GUMMOW J:   These matters were all put to the Minister.

MR JACKSON:   Yes, but this decision in relation to somebody who is here from the age of one, who has two Australian children, this decision is made on the basis of his response to a faxed questionnaire, which includes the address of his parents.  He happens to state in passing that the children are with his parents.  Now, that obviously immediately raises the question, “Well, how healthy are they?”  It raises the question of, “Where’s the mother?  How stable is the mother of these children?”

Apart from that, the only other material that the decision‑maker had on which to base their decision, the only other material was his criminal record.  No probation and parole reports, no evidence from the direct caregivers of his children, nothing, absolutely nothing.  There is a faxed questionnaire to him, which he is to return within 14 days.  That is returned.  It raises more questions than it answers.  On the basis of that alone, this decision is made.

GUMMOW J:   What do you say about what the Federal Court said at page 55, paragraph 83?

MR JACKSON:   Yes.

GUMMOW J:   It is not as if you are up here seeking an order nisi.  This is coming here from the Federal Court.

MR JACKSON:   Yes.

GUMMOW J:   Now, what is wrong in the way the Federal Court dealt with these complaints?

MR JACKSON:   Well, the first point to make about ‑ ‑ ‑

GUMMOW J:  

It must be remembered that there is now no complaint that the Minister denied the appellant procedural fairness.

MR JACKSON:   Yes.  Well, that is true and that is interesting.  It is an interesting dissonance between that and paragraph 79.  This is on page 54 of the application book, paragraph 79:

If the Minister proposed to make a decision on the basis that the best interests of the children were not a primary consideration, on the current state of authorities he would have had to give the appellant notice of the proposal and an opportunity to argue against taking that course.

The reference to “no complaint” in relation to procedural fairness is a reference to – there was some evidence that it was sought to tender as fresh evidence in the appeal to the Full Federal Court which related to the fact that the applicant’s sister had contacted the Department and been told that she would not be given any information unless she gave his – those details do not really matter, but there was some evidence that was not admitted, so a particular ground was not pressed.

In the draft notice of appeal I have attempted to articulate the legitimate expectation ground.  I would have to concede that it probably was not well pleaded in that respect in the court below.

GUMMOW J:   Well, legitimate expectation of what, other than as an aspect of procedural fairness?

MR JACKSON:   Well, that given the ministerial direction under section 499 that the Minister would apply it unless he gave an indication that he did not intend to apply it, and that would involve giving proper consideration to the best interests of the children.  The question ultimately is, is a decision based purely on a faxed response to a questionnaire that raises more questions than it answers about the state of the children and the care of the children, who is going to look after them, what is the parents’ state of health, what is happening with the mother?  Is it enough to say, “Well, I don’t have any more information than that.  All I have is this faxed response”.  Is it enough, in relation to a decision, for which there is no merits review because the decision is made by the Minister, is it enough to decide a person’s fate and to decide the fate of their children in terms of access to their father on the basis of that amount of information, or is there some duty to find out, any duty – even if it only be a duty to go and ‑ ‑ ‑

GUMMOW J:   Well, it has to be put in terms of jurisdictional error, does it not?

MR JACKSON:   Yes.

GUMMOW J:   So it has to be put in terms of natural justice, or possibly ‑ ‑ ‑

McHUGH J:   Failing to take into account a relevant consideration.

GUMMOW J:   Yes.

MR JACKSON:   Yes, and that is how it was put below, and that is how it is argued in my outline of submissions, that if it can really be said that a decision of great moment is going to be made on just totally inadequate material, is there not some duty either to wait for further material or to at least contact the person concerned?  Is there some duty to inquire, or can it really be ‑ ‑ ‑

GUMMOW J:   This was a big debate in the Federal Court about 15 years ago I think.  What if there is a duty to seek out information which otherwise has not been given to you?

McHUGH J:   I summarised the cases in Teoh.

MR JACKSON:   Yes.

GUMMOW J:   Yes.

MR JACKSON:   Yes, but the question really is when – I can say that I do not think that the actual quality of decision making, which is a legitimate concern for the court, rather than the merits of what is decided ‑ ‑ ‑

GUMMOW J:   No, it is not.  The question is jurisdictional error.

MR JACKSON:   Well, the quality of the process falls within whether the process that is ‑ ‑ ‑

GUMMOW J:   It is certainly an animating idea in the AD(JR) Act, but in its own wisdom the Parliament has not applied that Act here.

MR JACKSON:   Well, if there simply ‑ ‑ ‑

GUMMOW J:   There is a special migration regime, as you know.

MR JACKSON:   Yes.  But could it be – the question is can a decision‑maker exercise their jurisdiction when they simply do not have the information that they need to be able to do it?  Can they be said, whatever they actually say they have done, if they do not have the information required to make a decision - they know nothing about these children at all, nothing, except their ages.

McHUGH J:   Well, except the appellant provided information about them, said what he did with them.

GUMMOW J:   See look again at paragraph 83.

MR JACKSON:   Yes.

GUMMOW J:   The Federal Court had in mind what Justice McHugh said in Teoh, on page 55.  Indeed, it is set out above at paragraph 82.

MR JACKSON:   Yes.  Well, if I could just say in relation to the statement of the Minister about what the Minister accepted.  The Minister’s reasons were written 10 months after the event.  The Minister himself expressed them to be only his best recollection, and the Full Federal Court in a number of authorities has explained that they are not – that the Minister’s purported statement of reasons, if it is not in compliance with the Act, is to be treated with great caution and not to be treated as the reasons and ‑ ‑ ‑

GUMMOW J:   It was put to the Minister that he had a judgment of Solomon in a way.  He either had the choice of sending the father away without the children, which would be a hardship on both of them probably, or, alternatively, they could accompany the father; their lives here would be disrupted, and it is a hard choice.  That was put to the Minister as a tough call.

MR JACKSON:   And a choice that has to be made, in my submission, with adequate information.  Thank you.

McHUGH J:   Thank you, Mr Jackson.  The Court need not hear you, Mr Johnson.

In our view, there is no reason to doubt the correctness of the judgment of the Full Court of the Federal Court.  In those circumstances, the application for special leave must be dismissed with costs.

The Court will now adjourn until 10.15 am Tuesday, 26 April in Canberra.

AT 3.52 PM THE MATTER WAS CONCLUDED