Khan v Minister for Immigration and Multicultural Affairs

[1999] FCA 1790

FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration & Multicultural Affairs [1999] FCA 1790

MOREIRA KHAN AND HUBERTUS DELLU v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1028 OF 1999

HILL J
SYDNEY
6 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1028 OF 1999

BETWEEN:

MOREIRA KHAN
FIRST APPLICANT

HUBERTUS DELLU
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HILL J

DATE OF ORDER:

6 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1028 OF 1999

BETWEEN:

MOREIRA KHAN
FIRST APPLICANT

HUBERTUS DELLU
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	HILL J
DATE:	6 DECEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicants, Moriera Khan (Mr Khan) and Hubertus Dellu (Mr Dellu) apply to the Court for judicial review of a decision of the respondent Minister for Immigration and Multicultural Affairs (“the Minister”) said to have been on or about 3 September 1999 to exercise the power to forfeit a security in the sum of $5000 given to the Minister pursuant to the provisions of s 269 of the Migration Act 1958 (“the Act”).

2. There are two grounds stated in the application.  The first is that the decision-maker failed to take into account a relevant consideration, namely, the existence of a migration series instruction MSI-219 issued on 21 April 1999.  The second is an alleged failure on the part of the Minister to give to the applicants or either of them an opportunity to be heard in respect of the proposed forfeiture of the surety.

3. The facts before the Minister are set out in a facsimile dated 28 September 1999 although that facsimile extends beyond the period in which the decision was made. 

4. It appears that Mr Dellu was as at 23 July 1999 an unlawful non-citizen.  He made an application on 26 July 1999 for a bridging visa.  At the time of making that application he had an air ticket for his family and himself to depart Australia on 13 August 1999.

5. Mr Dellu’s application for a bridging visa was in due course granted.  It was granted subject to certain conditions set out in a letter dated 26 July 1999.  Among those conditions were that Mr Dellu depart Australia before 14 August 1999, that he reside at a nominated address and notify changes of address, reporting as directed to the Rockdale Office of the Minister.  The letter required also, that a security in the amount of $5000 be provided by way of guarantee of these conditions. 

6. In due course Mr Khan agreed to guarantee performance of the condition and give security in the amount of $5000.  The security provided was in the form of a bank guarantee from the Commonwealth Bank dated 27 July 1999 under which the bank undertook on demand to pay the "Department of Social Security" the sum of $5000.  A letter from Mr Dellu's solicitors dated 26 July 1999, written following a conference with Mr Dellu's wife in connection with the granting of the bridging visa he sought, noted that it was a condition that Mr Dellu not engage in employment.

7. It is common ground that Mr Dellu did not depart Australia on 14 August. On 11 August Mr Dellu's solicitor wrote to the Minister requesting that the Minister intervene under s 417 of the Act. It was the second such request. He also sent a form 1005 requesting a change in the condition of the bridging visa, namely, that Mr Dellu not be required to depart Australia by 14 August 1999 because he had lodged a s 417 request. The letter was taken as a fresh application for a bridging visa.

8. It seems that the person who made the decision decided on 23 August to refuse the application for the further bridging visa although failed to notify Mr Dellu until 30 August. The request under s 417 failed on 24 August, which Mr Dellu was also notified of on 30 August 1999. Thereafter, it seems that Mr Dellu and his family were detained on 2 September 1999. On the next day, the bank guarantee was called up. The facts to which I have referred of 28 September 1999 suggest that not only had Mr Dellu failed to depart Australia by 14 August 1999; he had in addition breached the condition of his visa, if there was such a condition, that he not work.

9. It is said that on 2 September 1999, Mr Dellu “freely admitted that he was preparing to go to work and that he had continued to work since his previous release from the detention centre.  He claimed to be unaware of his ‘no work’ condition on the BVE”.

   Failure to take into account a relevant consideration

10. Subject to the objection to competency to which reference will later be made, it is not in dispute between the parties that, as a matter of administrative law, failure to take into account a relevant matter would vitiate a decision.

11. The relevant principles are those set out in the seminal judgment of the then Justice Mason in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. In that judgment, his Honour pointed out that where a statute specifically lists matters to be taken into account, failure to take into account a listed matter would of course vitiate the decision. In the normal case, however, where discretions are conferred upon a Minister, the relevant legislation will not nominate the matters which are relevant to be taken into account. The question, then, of what matters are required to be taken account of is to be determined by reference to the subject matter, policy and context of the statute itself.

12. The relevant statutory provision here is s 269 of the Act, which reads as follows:

    “(1)An authorized officer may require and take security for compliance with the provisions of this Act or the regulations or with any condition imposed in pursuance of, or for the purposes of, this Act or the regulations:

    (a)by a deposit of cash, Treasury Bonds or negotiable instruments, together with a memorandum of deposit in a form approved by the Minister; or

    (b)in accordance with a form of security approved by the Minister.

    (2)A security given in accordance with a form approved by the Minister shall, without sealing, bind its subscribers as if it were sealed and, unless otherwise provided in the security, jointly and severally and for the full amount.

    (3)Whenever a security under this Act is put in suit, the production of the security without further proof shall entitle the Commonwealth to judgment for their stated liabilities against the persons appearing to have executed the security unless the defendants prove compliance with the conditions of the security or that the security was not executed by them or release or satisfaction.

    (4)If it appears to the court that a non-compliance with a condition of a security under this Act has occurred, the security shall not be deemed to have been discharged or invalidated, and the subscribers shall not be deemed to have been released or discharged from liability, by reasons of:

    (a)an extension of time or other concession;

    (b)any consent to, or acquiescence in, a previous non-compliance with a condition; or

    (c)any failure to bring suit against the subscribers upon the occurrence of a previous non-compliance with the condition.”

13. As one might expect, there is nothing in s 269 which specifies what considerations are to be taken into account where the security, having been required and given under the section, is called upon as a result of a breach of the conditions for which the security is given. No doubt from the context, a relevant matter is the question whether or not there has been a breach of the relevant conditions. In the present case, that there has been a breach at least of the departure condition has been admitted.

14. What is however said is that because a document was issued on 21 April 1999 containing guidelines relating to s 269 (namely, MSI-219), failure to take into account those guidelines would be failure to take into account a relevant matter entitling the applicants to an order that the decision to call up the security be set aside.

15. The first difficulty the applicant has with the argument is that there is no evidence at all before me of the failure on the part of the person who made the decision to consider

    
    

    MSI-219, even if it were a document which that person was required to take into account.  The document itself suggests that where a guarantee is to be called up, it is good decision-making practice that the person giving the guarantee and for that matter the person who had the bridging visa be given the opportunity to make representations dealing with why, for example, the conditions were not complied with and presumably why forfeiture should not take place.  There is no suggestion in MSI-219 that it is mandatory that this take place nor does the argument suggest that.  What the argument suggests is merely that there was a failure to consider MSI-219.

16. Without evidence, the burden of adducing which lies on the applicant, I am unable to find that the decision-maker did not consider MSI-219.  I know that the instruction was not ultimately carried out but not whether or not it was considered.  At one stage the applicants' solicitor suggested that he would seek an adjournment to adduce evidence.  He later said that this was not pressed.  This suffices to deal with the first matter.

    Natural Justice

17. It is submitted on behalf of the applicants that the existence of the document MSI-219 to which reference has already been made, and its specific enjoiner to officers exercising powers in relation to forfeiture, gave rise to a legitimate expectation that the applicants would be afforded an opportunity to be heard in connection with the forfeiture of the security.  Specific reliance is placed upon the decision of the High Court in Haoucher v Minister for Immigration (1990) 93 ALR 51.

18. Before dealing with this submission, I should say more about the document MSI-219 upon which the foundation of the submission relies.  The document on its face states that it is a “temporary instruction format only”.  It is to be reviewed within 12 months from the date of issue, though remains current until formally replace, re-issued, or deleted.  It seems that the document in itself is released on “Legend”, a data base, and available for inspection or purchase at the Department of Immigration, Multicultural Affairs, Freedom of Information Units.  It replaces a previous instruction.

19. MSI-219 differs somewhat substantially from the Ministerial statement made in Parliament which underpinned the decision in Haoucher.  In a statement to the Parliament, the Minister had said that a decision of the Administrative Appeals Tribunal should be overturned by the Minister only in exceptional circumstances, and where strong evidence could be produced to justify the Minister's decision.  The Minister in fact purported to overturn the Tribunal's decision, and without allowing the applicant affected by it an opportunity of being heard.  It was held that the policy statement raised a legitimate expectation that a right to be heard would be given before the Minister exercised the statutory power to override findings of the Administrative Appeals Tribunal.

20. There are differences (although only in emphasis) in the way in which the case was approached in the High Court.  Deane J at 55 spoke of the justice of the common law requiring that the person affected by the decision in the case be given an opportunity of being heard on the question whether the recommendations of the Tribunal should be overturned.  McHugh J expressed the relevant principle at 74, when his Honour said that

    “Subject to any statutory indication to the contrary, the doctrine of legitimate expectations entitles a person to be heard in opposition to a proposed exercise of a statutory power if its exercise will deprive him or her of any right, interest, benefit or privilege which that person has the legitimate expectation of obtaining or continuing to enjoy.

    A legitimate expectation may arise from the conduct of the person proposing to exercise the power or from the nature of the benefit or privilege enjoyed ...  A legitimate expectation the person will obtain or continue to enjoy a benefit or privilege must be distinguished, however, from a mere hope that he or she will obtain or continue to enjoy a benefit or privilege.  A hope that the statutory power will be exercised so as to confer a benefit or privilege does not give rise to a legitimate expectation sufficient to attract the rules of natural justice ...  To attract the operation of the rules of procedural fairness, there must be some undertaking or course of conduct acquiesced in by the decision-maker, or something about the nature of the benefit or privilege which suggests that, in the absence of some special or unusual circumstance, the person concerned will obtain or continue to enjoy a benefit or privilege.”

21. Toohey J, the remaining member of the majority found the opportunity of being heard to rise either from the adoption of legitimate expectation or alternately simply as springing from the obligation to accord procedural fairness.  What is to the point would seem to be that unless there is something in the object or subject matter of the statute which implies that procedural fairness, that is to say the opportunity to be heard be given, the obligation to give procedural fairness could only arise out of some legitimate expectation which is said to arise.

22. I have in another context considered the question of the role which expectation may play in Li v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 568. Nothing has happened since that case was decided that would change my views on the question. In my view there is nothing in s 269 itself by reference to the subject matter or context which would suggest that the calling up of a guarantee on breach required a person in respect of whom the guarantee was given, or for that matter the person giving the guarantee, to be given an opportunity to be heard.

23. No doubt if there is an inappropriate calling up of the guarantee, because for example what is alleged to be a breach of the conditions was not a breach, then the person who gave the guarantee would have a right of action against the Commonwealth. I do not find it necessary to decide the significance of the provisions of ss 269(3) and (4) which were agitated in argument. Nor do I think that a temporary instruction which is all that MSI-219 is, not available without some difficulty to the public at large, could give rise to a legitimate expectation that a guarantee be not called up before there is an opportunity to be heard, even if actually mandated.

24. The present is a case where the applicant, Mr Dellu, knew he was required to leave Australia in August 1999.  Rather than depart he applied for a further visa and an extension of time of the condition but a few days before departure and in circumstances where he was aware that if he failed to depart on the nominated day the security was at risk.  He chose to take that course.  A possible consequence of his actions and it turned out to be the one that actually happened was obviously that the application would be refused.  He had been refused on a previous occasion as the evidence suggests.  In my view there was no obligation on the part of the Minister to afford natural justice either to Mr Khan or Mr Dellu in the sense that they be given the opportunity to be heard prior to the security being called upon on.

    Objection to Competency

25. Having regard to the views which I take as to the grounds for review, it is unnecessary for me to determine whether the present application was competent.  It was submitted for the Minister that a decision to forfeit a surety was not a decision under an enactment which could be the subject of judicial review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Rather it was submitted that the action of the officers of the Commonwealth to effect forfeiture was not a decision or conduct and in any event was not made under s 269 of the Act but merely the exercise of rights conferred by the surety itself. Reference is made to General Newspaper Pty Limited v Telstra Corporation (1993) 117 ALR 629 at 637.

26. I should have thought the decision to call up the guarantee was clearly a decision. It is true of course that s 269 does not specifically refer to calling up a security, that being a consequence arising out of the giving and taking of a security and breach of the conditions under it. The case is one on the borderline. It is not as clear as was the case in the facts discussed in General Newspaper.  I consider it is unnecessary for me to consider the question and accordingly I do not propose to do so. 

27. The application will be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             6 December 1999

Counsel for the Applicants:	C Levingston
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 December 1999
Date of Judgment:	6 December 1999