Erten, M. v Hurford, C.J
[1986] FCA 150
•29 APRIL 1986
Re: MECIT ERTAN
AND: CHRISTOPHER JOHN HURFORD
No. G83 of 1986
Administrative Law
COURT
IN THE FEDERAL OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.
CATCHWORDS
Administrative Law - Immigration - Review of deportation order - Effect of deportation upon pending workers compensation claim - Whether decision invalid for failure to take true effect into account - Sufficiency of description of the effect in Deportation Case Summary - Inquiry made by Department of solicitors acting for applicant and information supplied by them reproduced in Summary - Whether order unreasonable - Whether order should have been made under s.12 of Act.
Administrative Decisions (Judicial Review) Act 1977 ss.5, 15, 16 Migration Act 1958 ss.12, 18, 38, 66E
Laremont v Minister for Immigration and Ethnic Affairs (Lockhart J, 6 December 1985, not reported), Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705, Kioa v Minister for Immigration and Ethnic Affairs (1984) 4 FCR 40, Peko-Wallsend Limited v Minister for Aboriginal Affairs (1985) 59 ALR 51, Daganayasi v Minister of Immigration (1980) 2 NZLR 130, Singh v Minister for Immigration and Ethnic Affairs (Wilcox J, 4 December 1985, not reported).
HEARING
SYDNEY
#DATE 29:4:1986
Counsel for the Applicant: Mr M Robinson
Solicitors for the Applicant: Messrs Hanley Cameron & Goold
Counsel for the Respondent: Mr C J Stevens
Solicitors for the Respondent: Australian Government Solicitor
ORDER
The order made on 27 March 1986 staying the operation of the deportation order made against the applicant on 4 March 1986 be dissolved.
The Application be dismissed.
The applicant pay to the respondent his costs of the Application including the costs of the proceedings on 27 March 1986.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
On 18 April 1986 I made an order dismissing an Application for an order for review of a decision to deport the applicant, Mecit Ertan, together with consequential orders. The deportation order was made by John Reginald Tuchin, the delegate of the respondent Minister for Immigration and Ethnic Affairs, on 4 March 1986. I now set out my reasons for making those orders.
According to the Deportation Case Summary prepared by an officer of the Department of Immigration and Ethnic Affairs, Mr Ertan is an national of Turkey, having been born in that country in 1952. He first entered Australia on 8 June 1980, holding a Turkish passport and pursuant to a visitor visa. He was granted a temporary entry permit valid for two months but before that period had expired he went through a form of marriage with an Australian citizen and applied for resident status. A question arose as to the legal validity of the marriage, the investigation of which was prolonged. This investigation was still incomplete when, on 18 November 1985, the marriage was dissolved. In the event no decision to grant resident status was ever made.
The Deportation Case Summary sets out in detail the history of the applicant's life in Australia. Having regard to the issues argued, it is necessary only to note three aspects.
The first matter is that shortly after his arrival in Australia Mr Ertan procured employment as a furnaceman in a Sydney factory. Because of the loss of a file the Department is not able to confirm or deny Mr Ertan's claim that permission was given on behalf of the Minister for him to enter this employment. For present purposes the Department has, therefore, assumed that approval was in fact given.
Mr Ertan claims that, on 21 July 1981, during the course of this employment he sustained an injury when he fell off a scaffolding. On 13 August 1984 he consulted Messrs Teakle, Ormsby and Associates, solicitors, concerning the making of a claim for compensation in respect of this injury pursuant to the Workers Compensation Act 1926 (NSW). On 14 November 1984 that firm filed on his behalf in the Workers Compensation Commission of New South Wales -- now the Compensation Court of New South Wales -- an Application for Determination in which he claimed that, as a result of the accident, he had suffered an injury to the low back with pain radiating to both legs. He claimed continuing incapacity. Shortly afterwards the solicitors filed a Request for listing and the Acting Registrar of the Commission nominated as the likely hearing date the period of four weeks commencing 3 March 1986. In fact it was not possible for the matter to be heard in that period. On 14 February 1986 the Registrar notified the solicitors that the application would be listed for hearing on 27 May 1986. The fact that his application is still pending in the Commission is the foundation of the main argument of the applicant in relation to the validity of the deportation order.
The second matter which should be mentioned is the use by Mr Ertan of a false name -- that of Geoffrey Clemsha Derwent -- and false Australian passport. Mr Ertan apparently obtained this passport in July 1983. He immediately used it to depart overseas, returning in the following October. Mr Ertan used the passport for a second journey overseas between 27 February 1985 and 30 March 1985. He was arrested whilst attempting to use the passport to leave Australia once again on 27 July 1985.
The third matter is that, during his sojourn in Australia, Mr Ertan has accumulated several criminal convictions. On 23 January 1984 he was arrested and charged with four offences: possession of heroin, possession of Indian hemp, possession of drug implements and goods ($3,270) in custody. He was committed for trial -- apparently on the first charge -- in April 1985 and released on bail. His presence at Sydney airport on 27 July 1985 was in breach of the conditions of his bail. When spoken to at the airport by a police officer he initially offered the officer a bribe of $1,000. When this offer was refused he punched the officer. Upon search he was found to have in his possession a small quantity of heroin. In the result he was charged with, and -- in October 1985 -- pleaded guilty to, four offences: attempt to export heroin, attempt to bribe Commonwealth officer, assault and resist arrest. At that same hearing the applicant also pleaded guilty to possession of Indian hemp and possession of implements. He was given cumulative sentences totalling 12 months imprisonment, with a non-parole period of four months.
In December 1985 the applicant was convicted by a jury of the charge of possession of heroin. A sentence of imprisonment was imposed with a non-parole period due to expire at the end of January 1986, the sentencing Judge indicating that he took into account that Mr Ertan was likely to be deported. In the meantime, in January 1986, he was convicted of the goods in custody charge and sentenced to three months imprisonment, back dated to 1 October 1985.
Mr Ertan was due for release from prison, in relation to the various criminal offences, on 29 January 1986. On the preceding day he was interviewed by an officer of the Department of Immigration and Ethnic Affairs to whom, in a written record of interview signed by him, he claimed that his most recent entry into Australia was in June 1980 and to whom he denied using any alias. Mr Ertan said that he wished to apply for resident status and revealed to the interviewing officer his pending workers compensation claim. At that time the officer was not aware of Mr Ertan's immigration and criminal record. He told him to report to the Department upon his release from prison. Mr Ertan did so, on 31 January 1986, by which time the officer had become aware of the full facts. He was arrested under s.38 of the Migration Act 1958, as a person reasonably supposed to be a prohibited non citizen, and has since been kept in custody.
On 7 February 1986 a letter was sent on behalf of the Department to Messrs Teakle, Ormsby and Associates. This letter stated that the question of Mr Ertan's continued stay in Australia was to be considered by a delegate of the Minister who would decide whether he was eligible to be considered for the grant of resident status or whether his departure should be enforced by deportation. Reference was made to the missing file. The letter proceeded:
"Consequently, I take this opportunity to invite you to put to the Delegate any submissions concerning Mr. Ertan's background in Australia and current circumstances, which you consider relevant to the exercise of the discretion under Section 18 of the Migration Act, 1958."
In relation to the workers compensation claim three specific questions were put: whether he had departmental permission to work, the nature of and present condition of his injury and "Why precisely do you consider that Mr Ertan should remain in Australia pursuant to his workers compensation claim? What evidence can you provide that you have attempted to obtain an expedited hearing in view of your client's status as a prohibited non-citizen?"
On 12 February 1986 the solicitors replied. They put no general submissions but they did offer answers to the three specific questions. Unfortunately their answer to the third question was not helpful. After referring to Mr Ertan's marriage and work in Australia they went on:
"In so far as his workers' compensation claim was brought lawfully and within his rights while legally working within the Department of Immigration (sic) he is, we would submit, entitled to pursue this and we would indicate to the Department that any attempt to deport him prior to the conclusion of his claim, which is imminently fixed for hearing in March 1986, would be resisted by whatever relief is available to the Applicant to avail himself of, including judicial review of any decision made by the Minister or his delegate."
The solicitors concluded by stating the current position regarding listing and submitting "that he should be allowed to complete the hearing".
The pendancy of the workers compensation claim was discussed in the Deportation Case Summary placed before the delegate. By that time the hearing date, 27 May 1986, was known. This was mentioned in the Summary, as were various medical examinations in respect of which arrangements for attendance had been made. The summary proceeded:
"If you decide that Mr ERTAN should be deported before the date of the hearing then he would be disadvantaged, in that he would not be on hand to instruct his solicitors, but would have to suitably brief them before his departure. He may also be disadvantaged by not being available to attend all required medical appointments.
Alternatively, if you do decide that Mr ERTAN should be deported, he could apply for a visa to return to Australia to be present at his hearing. A further alternative would be to delay the hearing pending the possible approval of his return to Australia as Ms Tweedale's fiance/de facto spouse, if such an application were lodged. In both these instances, visa issue would be subject, among other things, to the five (5) year Policy ban on his return to Australia being waived.
In his submission, Mr ERTAN'S solicitor states:
'In so far as his workers' compensation claim was brought lawfully and within his rights while legally working within the Department of Immigration he is, we would submit, entitled to pursue this ...'
In exercising your discretion under Section 18 you should give due regard to this submission. However, you may still decide that Mr ERTAN'S breaches of immigration and other laws (as previously listed) since his injury was sustained, outweigh his stated claim to be allowed to remain in Australia until the final hearing of his compensation case."
As mentioned, the delegate made a deportation order on 4 March 1986. On 27 March 1986 an Application for review of that order, pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 was filed. Upon that same day an urgent application was made under s.15(1) of that Act for an order staying the implementation of the deportation order, the execution of which was said then to be imminent. I acceded to that application, being of the opinion that there was a serious question to be tried as to whether the delegate had failed to take into consideration a material fact, namely the nature of the disadvantage which Mr Ertan would suffer if he were deported from Australia before the date upon which his workers compensation claim was due to be heard. I indicated that the matter should proceed to an early final hearing and made directions for the filing of affidavits. I also made the suggestion that some attempt should be made to expedite the hearing in the Compensation Court, or at least the taking of Mr Ertan's evidence. At the final hearing, on 17 April, I was informed that on 15 April 1986 a motion for expedition had been filed but that this motion had been heard and refused that morning, 17 April. I am not aware of the reason for the delay in making the expedition application or for its refusal.
Counsel for the applicant relies upon three separate grounds for his submission that the decision of the delegate to make a deportation order was bad in law and should be set aside: failure to take into account a relevant consideration -- Administrative Decisions (Judicial Review) Act (s.5(2)(b)), that the decision was so unreasonable that no reasonable person could have so exercised the power (s.5(2)(g)), and that the exercise of a power in this particular manner constitutes abuse of the power (s.5(2)(j)).
The second and third grounds have no substance and may be disposed of briefly. In relation to unreasonableness, counsel submits that a decision to deport a prohibited non-citizen shortly before the hearing of a workers compensation claim made by him under such circumstances that the deportation is likely to frustrate the further prosecution of the claim is so inherently unreasonable as to be bad in law. Counsel points out that the Department has acted upon the basis that Mr Ertan had approval to engage in the employment during the course of which he was injured and that the delegate had before him a medical report in which the opinion was expressed that Mr Ertan "appears to have a rather chronic lower back soft tissue strain" fitting him only for "moderate selected duties".
There may be occasions upon which it is correct to stygmatize as unreasonable, in the relevant sense, a decision to deport a litigant upon the eve of litigation. But this is not such a case. In determining unreasonableness, regard must be had not only to the effect upon the individual of an adverse decision but also to any public interest in a contrary decision. At the date of the decision to deport, the applicant had been held in prison for about five weeks. The projected hearing date in the Compensation Court was still 12 weeks away. There was no certainty that the matter would proceed upon that day and it appeared that no steps had been, or were being, taken to expedite the hearing. Despite the inquiry, no claim had been made by the solicitors that the claim would have to be abandoned if Mr Ertan were deported.
Under some circumstances it might have been appropriate -- if deportation was to be so long delayed -- to release the deportee under s.38(7) pending deportation. But in this case the delegate was concerned with a person who had not only acquired a significant criminal record but who had already flouted the immigration laws by the use of an alias and a false passport. It was open to the delegate to conclude that, once released, Mr Ertan might disappear from official sight. Given his record, there was reason for concern as to whether, in that event, he would commit further offences. True it was that, if he prosecuted the workers compensation claim, Mr Ertan would have to appear in that court under his own name; but the delegate had before him a statement by the police officer who apprehended the applicant at the airport in July 1985 in which he quoted Mr Ertan as then saying that he was leaving Australia never to return. And the history of the claim did not indicate that Mr Ertan had been seized with any sense of urgency about its finalization. It is not necessary, or appropriate, to reach any conclusion as to what, in this situation, was the preferable decision; the decision actually reached cannot be described as so unreasonable that no reasonable person could have reached it.
The third ground argued -- abuse of the power -- depends upon the propositon that, the applicant having been convicted in Australia of criminal offences, the delegate should have ordered his deportation under s.12 of the Migration Act rather than -- as he did -- under s.18 of that Act. The significance of the submission is that, pursuant to s.66E of the Act, a decision under s.12 is, under certain circumstances, reviewable upon its merits by the Administrative Appeals Tribunal. A decision under s.18 is not. Leaving aside the question whether the applicant could qualify for review pursuant to s.66E(2), the submission is misconceived because s.12 does not apply to the applicant, for two reasons: he had never been resident in Australia as a "permanent resident" -- that is a person having the benefit of a (permanent) entry permit -- and he was not sentenced to imprisonment in respect of any single offence for a term of not less that one year. Under those circumstances, it is not necessary to consider the important question whether it may be an abuse of power, within s.5(2)(j) of the Administrative Decisions (Judicial Review) Act, for an administrator having a choice of powers -- one reviewable upon the merits and the other not -- to use the latter rather than the former.
The matter of substance in the case is whether the decison of Mr Tuchin is vitiated by a failure to take into account a relevant consideration, namely the true effect upon his compensation claim of his immediate deportation. As mentioned, both the fact of the claim and the allocated hearing date were referred to in the Deportation Case Summary. This was the primary document before Mr Tuchin at the time of his decision. He endorsed a note of his decision upon the document itself. In the absence of any evidence to the contrary, it must be assumed that Mr Tuchin read this document and took into account the matters to which it referred. But it is said that the description in the Summary of the consequences of Mr Ertan's deportation before the hearing was quite inadequate. Counsel argues that the document failed to point out that the likely effect of his absence from Australia at that time would extend well beyond the disadvantages of having to "suitably brief" his solicitors before his departure and inability to attend some medical appointments, that deportation would almost inevitably lead to the application being struck out or stood over generally so that, in practical terms, deportation would lead to a frustration of the claim. The true disadvantage was, therefore, both different in kind to, and much more serious than, that considered by Mr Tuchin in making his decision.
I think that there is substance in this criticism of the Deportation Case Summary. The comment in the summary ignores the necessity for the applicant to give evidence, if the claim is to be prosecuted successfully. No doubt it is theoretically possible for evidence to be taken from the applicant on commission in Turkey, but I share the view expressed by Lockhart J in a similar case, but involving the threatened deportation of a prohibited non-citizen to Panama, that "viewed in a practical light" it is "obviously unreal" to expect a workers compensation claim to be so prosecuted: see Laremont v Minister for Immigration and Ethnic Affairs (6 December 1985, not reported) at p.8. In the absence of other material it must, I think, be concluded that the delegate failed to take into account that the likely consequence of the deportation of the applicant before 27 May would be that the claim would abort.
Counsel for the applicant argues that a finding to this effect is enough to conclude the case in his favour; that -- in a matter of such substance as the deportation of a person from Australia -- any failure to take into account a matter which adversely affects the interests of the affected person renders the decision bad in law. It does not matter, counsel argues, whether the decision-maker had knowledge -- whether actual or constructive -- of the relevant facts or whether, acting reasonably, he ought to have had such knowledge.
The matters relevant to the exercise of the power to make a depaortation order under s.18 are not prescribed by the Migration Act but it is established by numerous authorities that they include considerations affecting the welfare of the proposed deportee and his or her family: see, for example, Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705 and Kioa v Minister for Immigration and Ethnic Affairs (1984) 4 FCR 40 at p.53. In the present case the officers of the Department who have handled the matter have accepted that the future of Mr Ertan's claim is a relevant matter for consideration. This acceptance is plainly correct. But I do not think that it follows, as counsel for the applicant contends, that the delegate is under an absolute obligation in relation to that matter. So far as I am aware, there exists no authority to support such a far reaching submission. It is inconsistent with the assumption underlying such cases as Peko-Wallsend Limited v Minister for Aboriginal Affairs (1985) 59 ALR 51, and Daganayasi v Minister of Immigration (1980) 2 NZLR 130 in which inquiry was made as to whether particular existing facts were within the constructive knowledge of the decision-maker. Upon the applicant's argument it would not have mattered in those cases whether the facts were constructively known; it would be enough that they existed. I reject the submission and hold that the facts which the decision-maker is obliged to take into account are limited to those actually or constructively before the decision-maker at the time of the decision.
However, I make an important addendum. I do so by repeating what I said in another deportation case, Singh v Minister for Immigration and Ethnic Affairs (4 December 1985 not reported) at p.15:
"There may be occasions when the adequate consideration of a relevant matter necessarily involves the making of some inquiry as to the facts. Such a case may arise where the material before the decision maker indicates cause for concern about a relevant matter but where a person who would be affected by an adverse decision - and who might normally be expected to put his case to the decision maker - had no reasonable opportunity to put the full facts relating to that concern before the decison maker."
I gave an example from the facts of that case, in relation to which proper inquiry had been made, and distinguished such a matter from one in relation to which the affected person had the opportunity to put the full facts. I went on at p.17:
"I am not aware of any authority which supports the proposition that, in relation to matters within the knowledge of an affected person, the decision maker is bound to embark upon an independent inquiry as to the facts. As a matter of principle such a proposition cannot be sustained. The foundation of the rules in relation to consideration of relevant matters, and ignoring irrelevant matters, is the duty to exercise a statutory discretion fairly: see The Queen v. Vestry of St Pancras (1890) 24 QBD 371 at p 375. In the situation postulated, fairness requires no more than that the decision maker fully consider the material actually or constructively before him or her at the time of making the decision."
In the present case, the facts relating to the workers compensation claim were within the knowledge of the applicant and his solicitors. I accept that it would have been unreasonable for the delegate, knowing of the existence of the claim, to have proceeded to make a deportation order without making any inquiry as to the likely effect of such an order upon those proceedings. But, contrary to the argument of the applicant, the delegate was not bound to embark upon an independent inquiry, as for example by obtaining information from the Compensation Court or advice from his own legal advisers. Neither the Court nor other advisers could have been as conversant with the possible consequences as the solicitors handling the matter on behalf of the applicant. The obvious and reasonable course was to ask those solicitors what would be the effect of the deportation upon the case. This precise question was put in the letter of 7 February 1986. As I have commented, the information in response was not helpful but I think that the officers concerned were entitled to assume that no other adverse effects were relied upon. They were under no obligation of reasonableness to write again and, in effect, to cross examine the solicitors upon the adequacy of their reply. The officer compiling the Deportation Case Summary was under an obligation to ensure that that document adequately reflected any disadvantages revealed to the Department as a result of the inquiry. She did more than this. She pointed out, of her own volition, matters not mentioned by the solicitors. Her summary is now criticised upon the ground that it failed to state consequences of a deportation order which -- notwithstanding the inquiry made to the solicitors -- were never put before the Department. To accede to the submission of the applicant would be to hold that an administrative decision may be invalid for failure to take into account relevant facts notwithstanding that those facts were not known to the decision-maker -- actually or constructively -- despite reasonable inquiry. In my view the law does not go so far.
For these reasons I concluded, on 18 April 1986, that the challenge to the delegate's decision must fail, that the interim order made by me on 27 March 1986 staying the operation of the deportation order made against the applicant on 4 March 1986 should be dissolved and that the Application should be dismissed with costs.
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