Haoucher v Minister for Immigration and Ethnic Affairs

[1990] HCA 22

HIGH COURT OF AUSTRALIA

Deane, Dawson, Toohey, Gaudron and McHugh JJ.

HAOUCHER v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1990)

(1990) 169 CLR 648

7 June 1990

Immigration and Aliens—Administrative Law

Immigration and Aliens—Deportation—Power of Minister—Tribunal empowered to recommend revocation of deportation order—Guidelines for Minister's exercise of power—Minister's policy to depart from Tribunal's recommendation only in exceptional circumstances—Whether duty to give deportee opportunity to make representations before rejecting Tribunal's recommendation to revoke deportation order—Migration Act 1958 (Cth), s. 12. Administrative Law—Decision—Natural justice—Minister—Order by Minister for deportation—Tribunal empowered to recommend revocation of order—Guidelines for Minister's exercise of power—Minister to depart from Tribunal's recommendation only in exceptional circumstances—Rejection of Tribunal's recommendation to revoke deportation order without giving deportee opportunity to make representations—Legitimate expectations—Migration Act 1958 (Cth), s. 12.

Decisions

DEANE J. The detailed facts and the issues involved in this case appear from the judgments of Toohey J. and McHugh J. It can be said at once that, subject to what is said below, I am in general agreement with the reasons for allowing the appeal contained in those judgments.

2. The notion of a "legitimate expectation" which gives rise to a prima facie entitlement to procedural fairness or natural justice in the exercise of statutory power or authority is well established in the law of this country (see, e.g., F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342, at pp 348, 351, 361-362, 369, 376, 390-391, but cf. at p 412). The notion is not, however, without its difficulty. For one thing, the word "legitimate" is prone to carry with it a suggestion of entitlement to the substance of the expectation whereas the true entitlement is to the observance of procedural fairness before the substance of the expectation is denied (see, e.g., Salemi v. MacKellar (No. 2) (1977) 137 CLR 396, at p 452; Kioa v. West (1985) 159 CLR 550, at p 563). In that regard, there is much to be said for preferring the phrase "reasonable expectation" which has often been used in judgments in this Court. For another thing, the vagueness of the phrase "legitimate expectation", which enables it to be used as a convenient label for a broad category of circumstances which will give rise to a prima facie obligation to accord procedural fairness, may convey an impression of comprehensiveness with the result that the absence of an identified legitimate expectation is wrongly seen as a legal mandate for disregarding procedural fairness in any case where no legal right in the strict sense is involved. Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to "the particular statutory framework" (see Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) 113 CLR 475, at p 504), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There…