Johnson, Roy Thomas Danny v Minister for Immigration & Ethnic Affairs

CATCHWORDS

Administrative Law - migration - deportation order issued

whilst applicant in prison

with considerable part of sentence

still to be served - matters taken into account

by Tribunal -

whether decision premature

- whether significant change

relevant facts and

circumstances

- whether

Minister's

decision correct or erroneous.

Administrative Appeals Tribunal Act 1975,	s.44.
Miaration Act 1958, s.13.

RoY THOMAS DANNY JOHNSON v. MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

No. VG 42 of 1987

Sweeney, Jenkinson and Ryan	JJ.
29 October 1987
Melbourne

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

1	No. VG 42 of 1987

)

GENESAL DIVISION

On appeal from the Administrative

Appeals Tribunal.

BIZIWEEN: ROY THOMAS DANNY JOHNSON

(Applicant)

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

(Respondent)

THE COURT:

Sweeney, Jenkinson & Rpan JJ

PLACE	:	Melbourne
DATE :	29 October 1987

MINUTES .OF ORDER

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

NOTE: Settlement and entry of

orders is dealt with in Order

36 of the Federal Court Rules.

IN !PHE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

1	No. VG 42 of 1987

GENERAL DIVISION

On appeal from the Administrative

Appeals Tribunal.

RETHEN: ROY THOMAS DANNV JOHNSON

(Applicant)

AND: MINISTER FOR IMMIGRATION

AND EXHNIC AFFAIRS

(Respondent)

THE COURT:	Sweeneg, Jenkinson & Ryan JJ
PLACE:	Melbourne
DATE :	29 October 1987

REASONS FOR JUDGMENT

The Court

This is an appeal from a decision of the General Division of the Administrative Appeals Tribunal constituted by Mr. I.R. Thompson, Deputy President, given on 20 January 1987.

By that decision

the Tribunal affirmed a decision by

the respondent dated 27 July 1983 that the applicant be deported from Australia pursuant to 3.13 of the Micrratfon Act

1958 ("the Act")

as it then was in effect.

The applicant migrated to Australia from England in

J u l y 1981

accompanied by

his wife

and two children.

Before he left England the applicant had conducted a shop'but as a result of a f i r e and underinsurance at the time of his emigration he was in straitened financial circumstances.

2,	He did not obtain employment in Australia and about two
months af te r his arrival he began to commit a series of
housebreakfngs and thefts. He then came Into possession of two unsigned bankcards which he used to commit a very large number of offences of obtaining property by deception.

3. In August 1982 the applicant pleaded guilty to, and was convicted of, a number of counts of burglary, obtaining money by deception and theft. He was sentenced to a total of eight years imprisonment and, with remissions, was eligible to apply for release on parole on 11 April 1987.

4. A deportation order was issued, under 9.13 of the Act, on 27 July 1983 at which time the applicant had a

considerable part of his

sentence still to be served.

Subsequently his x f f e and children retzrned t o Zqgland

.- - -

and some time later his wife sought and obtained a

. -	divorce and is	now married to	the applicant's step-
brother.

5. Although he and his then wife had to the end of 1983

made representations seeking his early deportation to

England, the applicant has changed his mind. He has

been offered employment in Australia and has been

befriended by two families who offer hint accommodation.

. .

He asserts that he has a better chance of rehabilitation and employment in Australia than if now deported to England.

6. The Tribunal in reviewing the decision of the

respondent took

the following considerations into

account;

1. the nature of the applicant's offences:

2. the r i s k of his re-offending;

3. whether he or any other person in Australia would suffer hardship as a result of his deportation; and

4. whether he has made or is likely to make a contribution to Australian society.

On the first aspect

the Tribunal looked at the

statement of policy made to the

Australian Parliament in May

1983 by the then Minister for Immigration and Ethnic Affairs, which has been adopted by succeeding Ministers, that

deportation may be appropriate when 3 person "has comaitted. a

crime so offensive to Australian community standards that he cdrbmunity rebels against having within it a person who has committed such an offence". The Tribunal considered that the scale on which the applicant engaged in the offences and the

fact that he committed them soon after

he arrived in

Australia are matters which have to be taken

into account.

It was submitted to the Tribunal on behalf of the applicant that, "although the offences committed were serious, the applicant had previously been of good character;

he had committed the offences Secause of the pressures placed

on him by his family situation at the time and the unusual

circumstances which had preceded and followed his emigration

to Australia; he was no

longer married and the circumstances

were unlikely to recur; if he remained in Australia, he would

have the material and

moral support of the Driver and Holland

families and be in regular employment.

There was no real

r i s k of his re-offending.	He would suffer hardship	if he
were deported to England".

however, considered by the Tribunal that because of the scale of and purpose behind the crimes

"it is

It was,

not possible to regard the risk	of his re-offending as
non-existent or minimal".

The

Tribunal

accepted that

applicant

would

"undoubtedly suffer some hardship if he is deported from Australia" and that the chances of his rehabilitation would

Se Se t t e r if he xere t o

rzmain i n Australia than if he

xere

-.- -

deported.

These matters were weighed by the Tribunal but

came to the conclusion that "apart from the applicant

himself, nobody would suffer hardship If he were deported",

It wa3 considered that as the applicant "had been in receipt of unemployment benefit and had for six months engaged in intense criminal activity" he had made no contribution to Australian society up to the time of his conviction and that there was nothing to indicate any likelihood that he would make any greater contribution than any other members of the workforce if he were t o remain in Australia.

The Tribunal came

to the conclusion that:

"Of the factors to be weighed in the balance

the

nature of the offences and the number of them

weigh heavily in favour of deportation; the risk

of the applicant

re-offending

increases

that

weight. Although he will suffer hardship if he is deported, it is insufficient to counterbalance

the weight of those factors. Subject to

the

question of possible prematurity, therefore, I am satisfied that the Minister's order should be

affirmed

'I .

In considering the question of prematurity I.e. whether the deportation order should be affirmed at a time which was sti l l several months before the earliest date on which the applicant could be released on parole, the Tribunal noted the most recent of the applicable cases, Re Oszavin and Minister

for Imicrration and Ethnic Affairs (1985) 8 ALN 273, Re

Mallett and Minister for Immiaration and Ethnic Affairs

(Eecisfon No 2?52 : 7

July 1 9 8 5 ) . ar.d !?e Zar2iek acC

Yinister

- -*

for Immisration and Ethnic Affairs Decision No 3163 : 22

January 1987. The Tribunal was of the opinion that the

propriety of making or affirming a deportation order at a

time long

before a

prisoner's likely release from custody

depends on whether or not it is contrary to the interests of justice to.do so. Account was also taken of "evidence given

in Re Bardek, that in deciding whether

a prisoner who may be

liable to be deported should be released on parole the Adult Parole Board of Victoria prefers to know

whether or not he I s

to be deported and takes that into account. If he is to be

deported, he may 3 e released earlier than he would be

otherwise.

The Tribunal concluded that "in the present case,

however, there is no prospect of any significant change (i.e.

in the relevant facts and circumstances) occurring, even if

the applicant's date of

release is later than that on which

he first becomes eligible for parole".

The applicant set out his grounds of appeal in the

following terms -

"(a) There is no evidence before the Tribunal to support the

findings that:

(i) the likelihood that the applicant would reoffend was not "non-existent or minimal"'

(fi)

the spplfcant was

not disadvantaged

due t o t 3 e

delay in giving	effect to	the said deportation
order;

(iii) the Victorian Adult

Parole Board considered

the

existence of a deportation order as likely to

favor release of a prisoner on parole;

(iv) the Victorian Adult Parole Board considered that the applicant may be granted parole earlier than otherwise might be available to him due to the existence of the said deportation order herein.

(b) The Tribunal took

into

account

irrelevant

considerations, namely:

(i) the attitude of the Victorian Adult Parole Board regarding;

(y)	the effect of the existence of a deportation order upon prospects of parole of prisoners generally, namely that the existence of such

a deportation order map hasten release	on
parole;

( 2 ) the effect of

the deportation order herein

upon

the

applicant's

prospects

being

paroled by the Victorian Adult Parole Board, namely, that it may encourage his release on parole;

likely to reoffend when released from prison.

(d)

The Tribunal erred in law in ruling that the

deportation order herein was not void and of no

force

or effect by a reason of:

the

delay between the

date of issue of

deportation order and the date at which it

estimated the order will be effected, i.e.,

upon release of the applicant from prison;

the disadvantage and injustice caused to the

applicant because of the said delay;

(iii)

the making of the order, in all

the

circumstances, amounting to a denial of natural

justice;

(iv) the deportation order was impliedly conditional, since, at the time of its making,

it was known to the respondent or must have

been known to him

that the order could not be

effected until the release of the applicant

from prison.

(e) If the

Tribunal had

properly directed itself upon the

law, the only decision open to it was that the

decision

under review should

be set aside."

At the time when or' the deportation order c a s signed on 27 July 1983, s.13 of the Act read as follows -

. _

.- -

"13. Subject to section fifteen of this Act, where (whether before or after the

commencement of this Part) an imigrant-

.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;

M S been convicted in Australia of an

offence by reason of being a prostitute

or of having lived on, or received any

part of, the earnings of prostitution or of having procured persons for the

purposes

prostitution,

being

offence committed within

five years after

any entry by the	immigrant	i n t o
Australia; or

is, within five years after any entry by

him into Australia, an inmate of a mental

hospital or public	char table
institution,

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

That section was repealed by Act

No.112 of 1983, which

came into effect

on 2

April 1984, and was replaced

the

following new s.12,

which was in effect at the time of

the

decision of the Tribunal;

Where-

a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

at the time of the commission of the

offence the person-

(i) was not an Australian citizen; and

(ii) had been present in Australia as a

permanent resident for a period of less than 10 pears or for periods that, in the aggregate, do not amount to a period of 10 years; and

( c ) the offencz fs

a,? offznce f o r Fhich

the

person was sentenced to

death or to

imprisonment for life or

f o r a period

. *

not

less than one year,

the Minister map order the deportation of the

person"

At the same time

s.20 was amended by adding the

following sub.s,(2) "The validity of an order for the deportation of a person shall not be affected by any delay in the execution of the order".

Counsel for the applicant submitted that because

of the

changes in facts and

circumstances,

principaily

the

availability of accommodation and emplopment, and the change

in matrimonial arrangements, between the time of making the

deportation order and the release on parole

of the applicant

and his possible deportation, there had

been

a denial

natural justice and that the deportation order

was a nullity.

Support f o r that submission was said to be derived from certain observations of the Administrative Appeals Tribunal, constituted by Davies J., President, in Re Frearson and

Minister for Immicrration and Ethnic Affairs (1983) 5 A.L.N.

No 362, where the following passage occurs,

at N362 and N363:

"The Tribunal

stated that there was nothing

ss.13 and 20 of the Misration Act

to indicate

that a deportation order once made would lapse

not

executed

promptly.

The Tribunal

did,

however,

aise

doubts

a practice

occasionally adopted of an order being signed on

the basis that

it would not be carried into

effect until the Minister had subsequently approved that further 'step being taken. The Tribunal said: 'I do not think it is consistent with such an order, or with the making of a decision under s.13, that the Minister have an

arrangement with his Department tnat Che criminai

..I

_.-

should not, in

fact, be

deported until certain

events occurred and the file be referred back to

. *

the Minister for his further decision as to whether it is appropriate to deport the

criminal .

’

In this case, the foregoing pracedur5 had n o t

been followed but the Minister had, concurrently

with his signing of the deportation

order,

indicated that the

order should not be

enforced

until the applicant was released from prison

licence.

was

argued

that the deportation

order was not

an unconditional order and for that

reason did not comply with s.13.

Alternatively,

it was claimed thac the condition was not satisfied as the applicant was not released on licence. A further argument was that 9.13 does not authorise the making of a deportation order

when it is intended that steps to implement the deportation order shall not be taken until the criminal’s release from prison which may not occur for some years. In relation t o these arguments, the Tribunal said: ‘Had this Tribunal power to set aside a deportation order, I would, having regard to the doubts that I have as to the validity of the order of 5 May 1980, take the step which was taken in Re Su and Tax Asents Board, South Australia (1982) 4 ALN No. 168, namely, to set aside the order under review and to substitute therefor a new order in similar

terms.

However, in the review

of a decision under s.13,

this Tribunal has no power to set aside a decision of the Minister or to substitute its own

decision for the decision under review,

may

either affirm the decision under review

or remit

the matter

Minister

with

such

recommendations as it sees fit. It

does not seem

to me to be appropriate that I should remit the

matter to the Minister with a recommendation that

he revoke his existing order and make a new order

for deportation. It is not the function of this

Tribunal to make recommendations that orders be made for the deportation of persons from Australia.

In the circumstances

of this case, I think that

the proper step for me to take is to affirm

the

decision under review.

If it is later held by a

Court that the decision under review was invalid

for any reason, then

the affirmation of that

order may be ineffective. In Ridcre v. Baldwfn

C19643 AC 40 at p.120, Lord Morris said, ‘If. the

decision of March 7 was a nullity and void the fact that the appellant appealed made no difference. The decision of March 7 remained a

=--'- (Appeals) Act 1927 that the decision of the	nullity ... the proviaion in s . 2 ( 3 ) of the Tolice
Secretary of State upon an appeal is to be final

. -

and binding upon

all parties cannot produce

the

result that validity

is given to that which is a

nullity. See also Lord Hodson at pp.135-6.

If a

similar

position

applies in the present

circumstances, this is not a matter

whfch the

Tribunal can

rectify

deportation

jurisdiction.

For the reasons I have mentioned, I shall affirm the deportation order made on S May 1980 by the Honourable I. M. Macphee, MP, then Minister of State for Immigration and Ethnic Affairs, under

s.13 of the Migration Act 1958 (Cth) , thai;

Noeline Glennis Frearson be deported

from

Australia.

The doubts expressed by the learned President in Re Frearson were echoed by Mr. Deputy President Hall in Re Ozsayin and Minister for Immisration and Ethnfc Affairs (1985) 8 ALN 273.

In particular, the

following observation occurs at N277

the reasons for decision in that case:

"(61) The substance of the concern expressed by

the Tribunal in cases such as

Frearson,

Vandenberq (1979) 2 ALN No. 85 and Ili (1983) 5 ALN No. 184 seems to me to have been that, if a decision to deport a criminal is taken at too early a stage of-his or her sentence, when there

is no present intention

of carrying the

order

into effect, there is a potential for

injustice.

In some cases, there may be a material change

circumstances between the date

of the deportation

order and the date on which the order is	carried
into effect (Cf Frearson)."

However,

notwithstanding his re-statement of the

doubts

expressed by the

President, the Deputy President concluded

his reasons for decision with the following paragraph (at

N.278):

“ ( 6 7 ) It xas implicit in the 2rzsident’s decision

.e in Frearson that a deportation order that

was

arguably invalid could nevertheless be affirmed

..	by this Tribunal if, on review, deportation was considered to be appropriate. As the correctness
of that vtew has not been challenged before me, I
propose to follow it.”

Mr. Keon-Cohen for the applicant intimated

that it was

desired to challenge

the correctness of that

view before this

court. However, we consider that the correctness or otherwise of thar; view does noc arise f o r determination in

the present case because

could not be

said that at the

time when the Minister made

the decision to deport

Mr.

Johnson, it was

intended that

the deportation order should

not be executed for some years. As we understand it, Mr.

Johnson and his then wife were actively pressing, up to July

1983, for a deportation order to be

made in the belief that

the existence of the order would or night induce the Errecutive Government of The State of Victoria to expedite his release by an exercise of prerogative power before he should

become

ligible

for parole.

There is nothing in

the

material available

to the Tribunal to indicate

that

the

Minister did not share that belief, Consequently, it is not possible on the facts before the Tribunal to impute to the

Minister an intention that steps

to implement the deportation

order should not be taken until some years

had elapsed before

Mr. Johnson would

be eligible for

release on parole in the

ordinary course.

On the contrary, it appears the Minister

was concerned to break

the deadlock created by the reluctance

of the Executive Government of The State of Victoria to consider a potential deportee for release before he should become eligible for parole until a decision had been made

Even if we could come

to a different view of what

the

Minister intended when he made the deportation order, we would still consider that it is not open to the Tribunal to pass authoritatively on whether a decision of the Minister under the Act is a nullity. Consequently, that question is

not one which properly gives rise

to an appeal from the

Tribunal to this

Court under s.44(1)

of the Administrative

Appeals Tribunal Act.

It was submitted in

the alternative, on behalf of

the

applicant, that the Tribunal had committed an error

of law in

deciding that the Minister's decision was not premature. In

a related way it was argued that, in considering the matter

for itself in January 1987, the Tribunal should have held

that it was still too early, notwithstanding the expected release on parole of the applicant on 4 April 1987, for the Tribunal in reviewing the Minister's decision to determine

whether or not the

applicant should be deported. Since the

Tribunal was empowered to review the Minister's decision

the merits, it was not

bound first to characterize

that

decision as premature or erroneous or in any other way.

Nor

are we able to conclude that the Tribunal's own decision

January 1987 that it was not then too early to make a deportation order, if persuaded that it was appropriate, was

so unreasonable that no Tribunal, properly directing itself,

could have come to such a decision.

Another attack inade by counsel for

the applicant on the

_-_-

Tribunal's decision was directed to that

part of the reasons

. *

where it was said:

"Evidence given in Re Bardek that,' in deciding whether a prisoner wfro may be liable to be deported should be released on parole, the Adult

Parole Board of Victoria prefers to know whether

or not he is to be

deported and takes that into

account. If he is to be deported,

he may be

released earlier than

he would be otherwise.

Postponing the final decision on the question of an offender's deportation until a time proximate to his release map, therefore, be disadvantageous

to him.

It was pointed out that the evidence in

Re Bardek was not

before the Tribunal when it heard the application by the

present applicant, Mr. Johnson. Therefore,

it was argued,

the Tribunal was not permitted to have regard to that evidence when coming to a decision about Mr. Zohnson. We

reject that argument.

The Tribunal

is a specialized body,

the members of which, it is contemplated by 9.7 of the

Administrative Appeals Tribunal

Act, will possess special

training,

experience,

knowledge

or skill. It is to be

expected that

each member will add to his

or her body

experience and knowledge

the course

of hearing matters

which come before the Tribunal

for review. Accordingly,

absolute requirement that members exclude from their minds, in deciding particular applications, all knowledge derived

from evidence in any previous matters, would

be an artificial

and inappropriate restriction

on the working of the Tribunal.

That is not to say that an intention to use evidence in an earlier case, without disclosing that intention to the parties to the instant application may not amount to a denial

oi natural	.	I	.-	justice, thereby vitiating the later decision.
- -

However, it has not

been

suggested

that

the present

applicant, had he been advised of the Tribunal’s intended use

of knowledge derived from Re Bardek, could have demonstrated

that the preference of the Adult Parole Board of Victoria was

not as the Tribunal stated	it to be in	the passage quoted
above .

The final criticism by counsel for the applicant

of the

Tribunal’s reasons was	directed to its ConClUSiOn expressed
as follows:

“In

the

present

case,

however,

there

prospect of any

significant

change occurring,

even if the applicant’s date of release is later

than that on WfLich he first becomes eligible for

parole. In those circumstances I am satisfied that it is proper for the Tribunal to affirn now the decision under review.”

It was accepted that the Tribunal was speaking, in that passage, of the future from the time of its decision in January 1987. Nevertheless, counsel for the applicant

suggested that the

Tribunal had erred in concluding that

there was no prospect of any significant change

affecting the

applicant between that time and

his likely release on parole

after becoming eligible f o r it in

April 1987.

We have been

unable to detect that the Tribunal went wrong in performing that predictive task, but in any event, any error which may have occurred was not one on a question of law within s.44(1) of the Administrative Appeals Tribunal Act. When pressed to identify the error of law, counsel for the applicant

suggested that once the Tribunal had concluded (as it

should

have) that the Minister's decision of July 1983 should be set aside as having been made prematurely, it was bound to remit the matter for reconsideration by the Minister, presumably in accordance with a recommendation that the applicant still be

deported. We consider that argument

to be based on an unduly

circumscribed-concept of the discretion conferred by

s.43(1)

of the Administrative Appeals Tribunal Act.	That sub-sectfon
provides:

"For the purpose of reviewing a decision, the

Tribunal may

exercise

all

the powers

and

discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing -

(a)

affirming the decision under review;

(b)

varying the decision under review; or

(C )

setting

aside

the decision under

review

and -

(i) making a decision in

substitution

for the decision so set aside; or

(ii) remitting

the

matter

for

reconsideration in accordance

with

any directions or recommendations of

the Tribunal.

We do not read s.43(l)(a) as conferring

power to affirm

only a decision which

the Tribunal is satisfied was correct

when made.

As we

have already indicated, the Tribunal

concerned to ask itself what decision it should make on

the

merits, in the light of all the known facts and circumstances

when the application for review comes before it. It

is not,

as a matter of jurisdiction, required

to characterize the

Minister's decision as correct

erroneous

when

made,

althoggh doubtless it will give the original decision

and any

reasons for it such weight as it thinks appropriate, in

exercising its own discretion. Moreover, if the Tribunal were t o reach the same result as that embodied in the original decision, it would import a degree of delay and

artificiality

foreign to the discernible

policy of the

Administrative,Appeals Tribunal Act,

if the Tribunal could

not affirm the original decision because	it doubted its
correctness when made.

For these reasons, the decision

of the Tribunal is

affirmed and the appeal is dismissed with costs.

I	certify that this and the

preceding seventeen (17) pages are a true copy of the Reasons

for Judgment herein of the

Court.

Dated:

29 O c t o b e r 1987

Associate

[1987] FCA 799

29 Oct 1987