Kurtovic, v Minister for Immigration, Local Government & Ethnic Affairs

[1989] FCA 327

IN TEE FEDERAL COURT OF AUSTRALSA	)
1
NEW SOUTH WALES DISTRICT REGISTRY
)
GENERAL DIVISION	)

Between: VESELKO KORTOVIC

And:  MINISTER FOR IMMIGRATION LOCAL
GOVERNMENT AND ETENIC AFFAIRS

Respondent

CORAU: Elnfeld J.

DATE : 28 February 1989

PLACE: Sydney

FINDINGS AND OPINIONS

1. INTRODUCTION

This is an application for ~udicial review of the decision of 28 January

1988 of the Minister for Imigration, Local Government and Ethnic

Affalrs (the respondent) to deport Veselko Kurtovic (the applicant) from Australia. The applicant is seeking orders quashing or setting aside the decision, staying any other action under the decision, and restraining the respondent from proceeding with the deportation.

directing the respondent to release the applicant from custody pending time for the application for order of review. An order of the Court

In the course of the hearing, an order was made by consent extending the

this judgment was made on 2 December 1988, exerclslng jurlsdictlon by consent under section 23 of the Federal Court Act 1976 as an adjunct to this application for order of renew.

2. FACTS

The sequence of events surrounding the making of the deportation order

In question is as follows:

(1	7 July 1979: The applicant became a lawful permanent resldent of Australia
(2)	16 December 1982: The applicant shot and killed his parents-ln-
law (the relevant offence)
(3)	16 June 1983: The applicant was convicted of manslaughter after a plea of diminished responsibility was accepted
(4)	28 July 1983: The applicant was sentenced to 10 years penal servitude to commence from the date of the relevant offence
( 5 )	23 July 1984: The respondent signed a deportation order under
section 12 of the Act relying on the relevant offence
(61	6 September 1985: The Administrative Appeals Tribunal (AAT) recommended that the deportation order be revoked
(71	21 November 1985: The respondent revoked the deportation order
(8)	17 December 1985: The applicant received a letter from the New South Wales Regional Dlrector of the respondent's department
informing him of the decision which stated:
Dear Mr Kurtovlc, I am wrltlng to car.flrm tnat the knlster for Mqratlon
a ~ d Ethnlc Affalrs has dec~ded to revcke tne deporr-atlon
order slgned agalnst you
Thls letter is to conflm the oral warnl-g ahnlstered ts you today in relatlon to your ccnvlctlon for ManSlau~hter at Sydney Dlstrlct Court on 28/7/83 whlch rendered you llable to deportatlon from Australia pursuant to Sectlon 12 of the kgratlon Act 1958
You are warned that any further convlctlon which renders kou llable to deportatlon wlll lead to the questlon of your deportatlon belng reconsidered by the finlster
Consequently, lf you agaln become llable to deportatlon, ycu should expect that disregard of thls warnlng wlll welgh heavlly agalnst you when the mnlster reconsiders your case

I enclose relevant extracts from the Mlgratlon Act on

deportatlon llabillty and a copy of the Government's interest, you study these papers fully

(9)	24 January 1986: The Parole Board refused to parole the
applicant
(10)	18 July 1986: The New South Wales Court of Criminal Appeal
Board. In the course of its ludgment, the court stated the considered an application to review the declsion of the Parole followlng:

It seems to us that the ratter 1s one in whlch the knlster mght well msh to reconsider hls declslon revoklng the deportation order, in the llght of the whole of the rraterlal In thls flle There is a compelling case for concludlng, pursuant to S 8 (SIC) of the Wgratlon Act, that deportatlon would be appropriate and for concludlng that, m the entlrety of the circumstances, the acceptablllty of the

recomnendatlon of the PPmnlstratlve Appeals Trlbuyal should be reconsidered by the mnlster Untll that has taken place lt wculd see! to be preferable that the mtter De adlourned

It appears that the application for parole was not further pursued.

(11	1	6 November 1986: The then respondent (who was a different
person) decided not to sign a fresh deportation order

(12)	28 January 1988: The then respondent (another person agaln)
signed a fresh deportation order whlch relied on the same offence and was in the following terms:

WHEREAS VESEZKI KURTOVIC is a non-cltlzen

LW WHEREAS the said VESEMO K U R l W I C was convicted at the

Sydney Supreme Court on the twenty elghth day of July 1983 of two offences namely, manslaughter for whlch he was sentenced to ten years imprisonment and whlch offences he comnitted on the sixteenth day of DecerrS3er 1982

AND WEREtS at the time of the comnisslon of the sald

offences the said VESELXO KURTOVIC was not an Australian citizen and had been present in Australla as a pemnent resident for less than ten years

NOW I, MICHAEL JEROME YOUNG, Munster of State for

Imnigration, Local Government and Ethnlc Affalrs, W EERE5Y

ORDER, in pursuance of the power conferred upon me by	sectlon 12 of the Migration Act 1958 that the sald V E S m
KURTOVIC be deported from Australla Dated this 28th day of January 1988

(13) 9 February 1988: An application for review by the AAT of the
respondent's decision was lodged

(14 22 February 1988: The applicant's sentence ended after remissions and time afforded for good conduct

(15) Upon his release the applicant was immediately re-arrested and was held in custody at the Metropolitan Remand Centre untll 2 December 1988 pursuant to a direction under section 39(6) of the Migration Act (1958) (the Act)

(16) 11 July 1988: The AAT case was adjourned by consent, the Tribunal expressing the view that the questlon of the Minister's powers should be decided by the Federal Court

3. TEE ISSUES

The applicant said that the respondent's decision to deport the appllcant was one which

(a	the respondent did not have the jurisdiction to make
(b)	was an improper exercise of hls powers under the Act
(c)	lnvolved an error of law
(d)	breached the rules of natural justice

(e) was othervlse contrary to law

4. TEE LEGISLATION

The deportation order in question was made under section 12 of the Act.

This provides:

12 Where -

(a)	a person who 1s a non-cltizen has, elther before orafter the comncement of thls sectlon, been convicted in Australia of an offence,
(b)	at the t m of the comss~on of the offence the

person -

(1)	was not an Australian cltlzen; and
1 1	had been present in Australla as a 9emner.x resldent for a perlod of less than 10 years or for perlods chat, In the aggregate, do

not m m t to a perlod of 10 years; and

(c) the offence is an offence for whlch the person was sentenced to death or to lmprlsonment for llfe or for a perlcd of not less than one year,

the finlster m y order the deportation of the person

Section 12 must be read in conjunction with	section 14A uhlch deflnes a
"permanent resident". It provides:

14A (1) Where a person has been convlcted of any offence (other than an offence the convlctlon in respect of whlch was subsequently quashed) the perlod ( ~ f any) for whlch the person was conflned in a prlson for that offence shall be

disregarded in detemnlng, for the purposes of sectlon 12

and sub-sectlon 14(1), the length of t m that that persor.

has been present in Australla as a pemnent resldent

(2) In sectlon 12 and sub-sectlon 14(1), "pemnent resldent" means a person (lncludmg an Australlan cltlzen) whose continued presence in Australla is not subject to any lmtatlon as to t m imposed by law, but does not lnclude -

(a) m relatlon to any perlcd before the comncement of

thls sub-sectlon - a person who was, durlng that

period, a prohlblted m g r a n t wlthln the meanlng of thls Act as In force at that t m ; or
(b)	ln relatlon to any perlod after the comncernent of this sub-section - a person who is, durlng that period, a prohibited non-citizen

( 3 ) For the purposes of thls sectlon -

(a) a reference to a prlson lncludes a reference to any

custodial lnstltutlon at whlch a person convlcted of

an offence may be requlred to serve the whole or a part of any sentence imposed upon h ~ m by reason of that convlctlon, and

(b)	a reference to a perlod durlng whlch a person was confined In a prlson Includes a reference to a perlad -
(1) dcrmng whlch the person was an escaFee f rcm a prlson, cr

(11) durlng whlch the person was undergoing a

sentence of periodic detention in a prlson

There was some argument about whether the fact that "permanent resident" is defined to include an Australian citizen, means that sectlon 12 would, oddly enough, appear to allow the deportatlon of an Australian citizen. It is not necessary to decide that question here as the

applicant has never been an Australian cltizen.

Sectlon 20 is also relevant as it allows the Minlster to revoke a deportation order. It provides:

20 (1) Where the knlster has made an order for the

deportatlon of a person, that person shall, unless the

knlster revokes the order, be deported accordingly

( 2 ) The vall&ty of an order for the deportatlon of a

person shall not be affected by any delay in the execution

of that order

5. LACK OF ISD DICTION - Section 5(l)(c) ADJR Act

The applicant does not dispute that the respondent had the power to make

deportation order which is lnvalid as section 12 does not allow the	the initial deportation order. However, he argues that it is the second	respondent to order the deportation of a permanent resident on the same grounds on which he has earlier made a deportation order whlch was revoked.
This submission as to lack of ~urisdiction or power is two-pronged. It is firstly submitted that it would be contrary to Parliament's lntentlon to allow the Minister to reconsider a deportation at any time in the
absence of new evidence. The second argument is that the respondent was estopped from making the second deportation order.
The applicant argues that there were no new facts on which the Minlster relied. At most there were further letters from and on behalf of the family of the vlctims putting the same point of view as had been put before - that they were fearful of the harm he might do them. This 1s said to be made clear in the reasons for the first deportation order set out in a section 37 statement provided to the AAT as follows:

C THE REASONS FOR W i DECISICN

3 The pollcy wlth respect to the exerclse of iny &scretlon pursuant to section 12 of the mgratlon Act 1958 has been announced publicly In a News Release on 4 May 1983, a copy of which 1s attached The pollcy has the support of the Australian Government and was tabled in Parliament on the same day

4 I reached my decision by applying that pollcy and havlng regard to the f~ndings on materlal questions of fact referred to above All pollcy conslderatlons whlch I thought to be pertinent to thls case are set out in the attached pollcy statement

5 In dec~ding whether in all the circumstances it 1s

In the best Interests of Australia that the applicant be deported, I have taken Into account the follomng ratters:

(a) Factors agalnst deportation

(3.) the applicant had no prevlous convlctlons and had been a hard-working farmly man of good character before the offence was comtted

(11) the offence was comtted at a tune when the applicant was severely depressed as a result of domestlc disagreements At the trial the Crown accepted a plea of guilty of mnslaughter, rather than the more serlous murder charge, on the grounds of duunished responsiblllty

(111) the applicant's prospects for rehabllltatlon appear to be reasonable and he now has no overt symptoms of any mental Illness I regarded the rlsk of recl&vlsm as low

(lv)   a close frlend of the appllcant has stro~gly sxpported the applicant's belng allowed to remaln ;n Australla

(v)    the applicant wishes to mlntaln contact wlth hls daughter (aged 4 )

(b) Factors in favour of deportatlon

(1)	the applicant has been convicted of a very serlous offence (iranslaughter of hls parents i? law)
(11)	the appllcant has m n m l fanuly tles In Australla, hls mfe has no deslre to resume a relatlonshlp wlth hun and wlshes to dlvorce hun and to wthold access to thelr chlld HIS wlfe has expressly supported hls deportatlon, whlle there are no fanuly members In Australla who would be adversely affected by hls deportatlon

The respondent disputes the assertion that the factual basis for the Minister's decision was identical. However, assuming that there were no new factors to ground a decision to deport, the applicant submlts that at the time the second deportation order was made, the respondent's power under section 12 was exhausted. The legislature would not have intended that the Minister could, after a full hearing without any alleged misrepresentation or mistake, make one decision, convey it to the applicant and thereafter revoke the decision without fresh grounds.

The appllcant cites in this regard In Re 56 Denton Road Twickenham

[l9531 1 Ch 51 at 56-57 where Vaisey J stated:

Cm the second plnt the plalntlff's counsel offered for my

acceptance the follomng propsltlons: that where Parliament confers upon a body such as the a I3amage C m s s l o n the duty of declkng or detemunlng any question, the decldmg or detemunlng of which affects the rights of the subject, such declslon or deternunatlon made ar.d comnunlcated in term whlch are not expressly prelmnary or promslonal is flnal and conclusive, and cannot In the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body I accept that proposltlon as well-founded, and

applicable to the present case

The applicant argues that a power to issue a fresh order in the absence of new facts would lead to uncertainty and unfairness. It would also lead to the result that a person who was prima facie within the conditions of section 12 of the Act would face an indefinite continuing threat of deportatiQn even though, as in this case, the Minister had made a decision to revoke a deportation order and conveyed this to the person affected: cf Dallikavak v Minister for Immigration and Ethnic

Affairs [l9851 6 1 ALR 4 7 1 and Re Chan and Minister for Immigration and

Ethnic Affairs 119751 17 ALR 4 3 2 which the applicant submits were oblter

as to the point in issue. I doubt that they dispose of the Issue here.

Chan concerned the now repealed section 13 of the Act. That provided that where an immigrant has been convicted in Australia of an offence punishable by imprisonment for one year or longer, being an offence committed within 5 years after entry by him into Australia, the Minlster may order the deportatlon of the immigrant from Australia. The AAT held that there was a power to order deportatlon even after a deportation

order had been made and revoked. Smithers .l stated at 4 4 2 :

Clearly the figration Act authorizes the Mmlster to revoke	a deportatlon order %Inch has been made As a mtter of
English, to revoke sornethlng 1s to call it back As a matter of substance, to revoke an order is to call it back ab lnltlo
On this basis, if an order is made and revoked and it is
sought to exercise the power under s13 to make another order then it m y be sald that as a mtter of substance the power to order the deportatlon of the mgrant has not previously been exerclsed In my new this 1s a perrmsslble construction of the statute It is supported by reference to the subject matter nth whlch the Act is concerned a ~ d
the objectives of the statute The subject matter is of national slgniflcance golng, as it does, to the corrposltlon of the Australian population The finlster is glven wlde powers and it 1s manlfest that to admnlster the Act humanely the power to act flexlbly is important There may
well be cases where ln response to representatlons on behalf of an m g r a n t lt 1s proper on n m z e reasons to revoke an order It 1s not likely that the Legislature nad in nnd that if In such a case the representatlons turned out to be nusrepresentatlons, the hnlster was powerless to act ander the sectlon The power glven in s13 belng a power to prevent the pollutzon of the population, and lt belng a pernusslble construction of the Act that the power to order deportatlon m y be exercised after an order has bee?. mce and revoked, I am of oplnlon that the vlews sutmutted to Te by the appllcant and the respondent are sound

I would not characterise the purpose of section 13 in quite the same words a3 his Honour, but it is difficult to argue with the point of statutory construction and intention which he makes. It is also clear that the polnt being made here was conceded in Chan. This 1s also seen

By mra n d u m counsel for the respondent has advlsed that he

1s ~nstructed to sutmt, Inter alla, that notcnthstandlng the mklng and revocation of a deportatlon order, another

deportation order m y subsequently be made pursuant to s 13

In rellance upon the sam? facts, namely the relevant convlctlons, as those upon whlch the earller order was based, provlded the applicant has not ceased to be an lmugrant by reason of absorption Into the Australian comnunlty. In thls counsel for the appllcant concurred

Similarly in Dalllkavak, Northrop and Pincus JJ stated at 476:

We would add that if the hnlster, havlng m d e a deportatlon	order, subsequently becomes aware of circumstances whlch
lead hun to doubt the correctness of hls order, or to come to the m e w that its correctness mght need lengthy re- exarmnation, he may revoke the order If that happened, the person affected would cease to be a deportee under the Act but would reran a prohlblted non-cltlzen and be subject to all the restrictions imposed by the Act on persons of that status If on re-examnation the hnlster 1s of oplnlon that the order should agaln be mde, no new grounds are necessary, in our mew: see the declslon of Srmthers J
Re Chan and hnlster for hugratlon and Ethnlc Affalrs 119771 17 AIR 432 at 441-2: see also s 33(1) of the Acts
Interpretation Act 1901 (Cth)

In addltion to the polnt belng oblter, the case concerned the rlght to control prohibited non-citizens. It may well be a different matter in relation to a permanent resident.

Flnally the applicant referred to section 33(1) of the Acts

Interpretation Act 1901. It states:

33 (1) Where an Act confers a power or mposes a duty,

then, unless the contrary intention appears, the power m y be exercised and the duty shall be performed from t m to

t m as occaslon requlres

The applicant submitted that this section does not extend to a case where the language of the statute conferring the power polnts to its being exercised once and for all. The decision of Bardle J In Reynolds

v Wingecarribee Shire Council [l9641 82 WN (Pt 1) (NSW) 243 at 249 was
cited:

Section 32 of the Interpretatlon Act provrdes that, sublect to any contrary lntentlon appearing in the particular statute a statutory power m y be exerclsed from t m to t m as occaslon requires This section, however, does not extend to a case such as the present where the language of the statute conferring the prmry power polnts reasonably clearly to its belng exerclsed once and for all

Further, in Export Development Grants Board v EM1 (Australia) Ltd [l9851

9 FCR 269 at 278, a decision of a Full Court of this Court, Bowen CJ,
Woodward and Flsher JJ stated:

Reference was mde to the Acts Interpretatlon Act 1901, s 33(1), tihich provldes that where an Act confers a power or m s e s a duty, then, unless a contrary intention appears, the power m y be exercised and the duty shall be performed from t m to tune as occaslon requlres The suggestion appears to be that the Board m y exerclse the power to make a deternunatlon of lncentlve grant entltlenent under S 11(1) as often as occaslon m y require Just whether a perce~ved

error in a ~ s t deternunatlon presents the Board wltn an occaslon requlrlng another exerclse of its power unaer S

11(1) m y be left on one slde It is plaln that the

stmcture of the Act is lnconslstent wlth the existence of such a general power to reassess In our oplnlon, a contrary lntentlon appears in the Act

The respondent submitted that the inference to be drawn from these decisions is that the Minister's powers under section 12 are not extinguished by the making of a deportation order and its subsequent revocation.

Except on the status of the facts, it does not seem that the submissions of the applicant and respondent on this matter actually conflict. The applicant submitted that there are no new factors and therefore no power to make a second order. The respondent argued that there are new factors and the power to make a subsequent order as a result, although the respondent might be taken as having also argued for the broadest interpretation of his rights so as to embrace an entitlement to make a new decision without additional facts. Alternatively the respondent argued that in any event there has been no exercise of the power to deport. Be said the power is of actual deportation, not of decislon- making. This argument seems to accord with the earlier quoted comments

of Smithers J in Chan.

I have carefully reviewed the facts put forward to found the two deportation orders and the revocation of the first order. My clear impression is that although the vievs put forward to support the second

order are expressed vith increased fervour, especially by the members of Parliament enlisted to support the case for deportation, they are not in substance materially different. It is important that Ministers exercising povers of this nature remain aloof from political rhetoric

and seek out the basic facts alleged. Whether that occurred here is questionable but it seems to me that this was not a case of new facts and that the Minister dld not treat it as such. On the other hand, I am of oplnlon that whilst a deportation order made on the same facts as a revocation of a prevlous order may be renewable under the ADJR Act on that ground, there is no statutory bar to its making.

The second llne of the applicant's argument was that even if the respondent does have the power to issue a subsequent deportation order, the revocation and the letter sent to the applicant on behalf of the Mlnister to announce it created an estoppel. The applicant relles particularly on the fact that the letter stated: "You are warned that any further conviction which renders you liable to deportation will lead to the question of your deportation being reconsidered by the Minister" (my underlining). It is submitted that this amounted to a representation that the applicant would only be liable to deportation in the event of further offences.

A threshold issue which arises is whether a government authority

operating under a statute which permits the action in question can be

estopped. In this regard the applicant referred to In Re Preston I19851

1 AC 835 at 852 where Lord Scarman stated:

ludlcial revlew should in prlnclple be anllable where the corciuct of the Comss~oners m lnltlatlng such actlon would have been equivalent, had they not been a publlc authority, to a breach of contract or a breach of a

representation glvlng rise to an estoppel

His Lordship continued at 865, citing Lord Denning M.R. in E.T.V. Ltd v
Price Commission 119761 ICR 170 at 185:

So when an army o f f l ce r was t o ld tha t h l s d ~ s a b l l l t y ,was

accepted as a t t rmutab le t o bar servlce, asd he actea on lt

by not ge t t icg h l s own medical opinlon, the k n l s t e r was not

allowed to go back on lt. see Robertson v m n l s t e r of

Penslons [ l 9 4 9 1 1 QB 227

The applicant concedes that there is authority to say that the exercise of statutory powers cannot be the subject matter of estoppel, but he argues that the courts would intervene where there is an unfair circumstance despite the statutory power.

There is a mass of diverse ludicial and academic opinion on this
subject: see and compare (English cases) Robertson v Minister for
Pensions [l9491 1 KB 227; Southend-on-Sea Corporation v Eodgson

(Wickford) Ltd 119621 1 QB 416; Wells v Minister of Housing and Local

Government 119671 1 WLR 1000; Lever Finance Ltd v Westminster (City)

London Borough Council [l9711 1 QB 222; Norfolk County Council v
Secretary of State for the Environment [l9731 1 WLR 1400; Laker Alrways
Ltd v Department of Trade 119771 1 QB 643; (Australian cases) Rocca v

Ryde Municipal Council 119621 7 LGRA 1; Maurice v Bankstown Municipal

Councll C19621 8 LGRA 172; Brickworks Ltd v Warringah Corporation

l19631 108 CLR 568; Boyce v Burwood Municipal Council 119641 10 LGRA

280; Wyong Shire Council v Associated Minerals Consolidated Ltd [l9721
25 LGRA 305; .l	M Watson h Associates v Auburn Municipal Council 119721
1 NSWLR 84; D r m o y n e Municipal Council v Page	119731 2 NSWLR 566;
Rockdale Municipal Council v Duffy Bros Pty Ltd 119741	29 LGRA 279;

Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide 119751 33

M;RA 70; Auburn Municipal Council v F N Eckold Pty Ltd 119741 34 LGRA

101. See also De Smith on Judicial Review of Administrative Action (3rd edn) pp 88-91; Wade on Administrative Law (4th edn) p 220; Garner on Administrative Law (4th edn) pp293-4; Whitmore and Aronson on Revlew of

Administrative Action p 244; and an article by P.P. Craig:

"Representations by Public Bodies" in [l9771 93 LQR 398.

In Lever Finance Lord Denning held that the doctrine of estoppel dld

apply in these circumstances, and in some of the decisions of the New South Wales Supreme Court listed above, especially Page, Lever Flnance is quoted with approval. In both Duffy Bros and F N Eckold, both coming after Page, Mahoney JA expressly left open the availability of estoppel against local councils. In Duffy Bros at 286, his Honour said:

The extent to whlch a statutory body such as the plalntlff may be estopped from contending that a relevant town plannlng consent has not been glven has not yet been finally and authorltatlvely detemned and counsel have referred me to several differing mews whlch have been expressed upon the matter However, for present purposes, I shall a s s m (mthout decldlng) that the plalntlff is sublect to the prlnclples of estoppel in the manner contended for by che defendant

See also F N Eckold at 111.

In Laker Airways Lord Denning MR stated at 707:

The reminlng lssue is whether the executive 1s estopped

from mthdramng the designation - a polnt ralsed by the

judge himself The Attomey%eneral concedes that estoppel could in sultable circwtances be raised agalnst the Crown: but he contends this was not a case for it The law on thls subject has developed a good deal lately The underlying prlnclple 1s that the Crown cannot be estopped from exerclslng its powers, whether glven in a statute or by ccmmn law, when it is dolng so in the proper exerclse of ~ t s duty to act for the publlc good, even though thls may

work some inlustice or unfalmess to a ~rlvate idvldual

-

see ~aritime ~lectrl; CO-~td v General Girles Ltd [l9371

A C 610, where the Prlvy Councll, unfortlmately, I thlnk,

reversed the Supreme Court of Canada [l9351 S C R 519 It can, however, be estopped when it is not properly exerclslng ~ t s powers, but 1s rmsuslng them; and it does rmsuse them if it exercises them ln circumstances which work inlustlce or unfairness to the in&vldual wlthout any countenalllng beneflt for the publlc: see Robertson v Munster of

Penslons [l9491 l K B 227. Rea v L~zemnol Cnmnrahcn.

In the present case, if the Secretary of State dld have a prerogatlve to wlthdraw the deslqnatlon, and properly exerclsed the prerogatlve, then there would be no case for estoppel He would be exerclslng the prerogatlve for tne publlc good and would be entltled to do it, even tho~gh lt dld work lnlustlce to some lndlvlduals I would not, therefore, put the case xpcn estoppel

Estoppel in relation to statutory authorities was recently considered by

a Full Court of this Court in Formosa v Secretary to the Department of

Social Security (unreported, 17 August 1988). Davles and Gummow JJ stated at pages 16-18 of the printed judgment:

Estoppel

Counsel for the applicants also relled on estoppel 9e suhutted that by suhuttlng her docmnts for ldentlficat~on, attending an lntervlew for the purposes of

ascertaining her entltlements, signlng a form In the course

of that l n t e ~ e w to support her clam and recelvlng infonnatlon from the offlcer of the Deparhnt that she had no entltlements, Mrs Fomsa was led to belleve that she had made a claim and that her claim was unsuccessful; lt was then suhnltted that Mrs Fomsa had acted to her detrmnt on those assqtlons by failing to apply for an age penslon before Novehr 1986, and that the Deparbnent had fostered her mistaken bellef by givlng her lncorrect information, acting as if she had made a clam and repeating the lncorrect lnfonnation in January 1986	Counsel agreed that he had to say, to make the suhmsslons	good, that the respondent was estopped from denying that in
December 1985 or January 1986 Mrs Fomsa had lodged wlth the offlce at Mt Druitt a clam in writlng in accordance wlth a form approved by the Secretary, for an age penslon to comnce 25 February 1986 Thus the result of that estoppel would be to lift the prohlbitlon placed by S 158(1) upon the papnt of the age pension to Mrs Fomsa, except upon the mking of a clam in the manner described in sub-S 159(1)
A collection of the authorltles revealing the somewhat
uncertain state of the law as to the fetterlng by estoppels
of the proper exerclse of statutory &scretlons may be found In Re Bundy [l9801 2 ALD 735 at 750 However, In Brickworks Ltd vWarringah Corporation [l9631 108 CLA 568 at 577, Windeyer J said that there was no doubt abut the pr~nclple
that estoppel by representation cannot prevent tne perfomnce of a statutori duty or the exerclse of a statutory dlscretlon
Where the issue is one of statutory dlscretlon, the
operation of an estoppelmy cut across the proper exerclse
of the dlscretlon reposed by leglslatlor. :n a speclfled declslon mker and thus be at odds wlth what is mandated by the leglslatlon Hence, the observation by Professor Davld Wllllams (119811 CLT 198), ln comnent1r.g upon rtootkln v Kent County Councll [l9811 1 1186, that estop?el appars t3 operate only at the periphery of ].~chclal revlew of ahnlstratlon, and, more recently, the m e w that the foundation for the protection of "legitmate expectations" lles elsewhere than in estoppel (Forsyth, "The Prove~ance
and Protection of Legltmate Expectations" [l9881 C I J 238 at 257-258)

No doubt because it was not necessary to do so or not relevant to the

issues for decision in the case, a complete review of the plethora of

discussions of this subject was not undertaken in that judgment. It

seems to me that Formosa does not require me to deny the proposition to

emerge from the cases and writings that estoppel is available in principle against a Minister exercising statutory authority although it will not operate if the actions which would otherwise be estopped can be shown to be for the public good.

The next question is the scope and effect of estoppel in these

major recent English cases include Amalgamated Property CO v Texas Bank	clrcumstances, sometimes called equitable or promissory estoppel. The
C19821 QB 84 - Court of Appeal - and Attorney General of Hong Kong v Aumphreys Estate Ltd 119871 1 AC 114 - Privy Council.
However, in Waltons Stores (Interstate) Ltd v Maher 119881 62 ALJR 110,
the High Court substantially reviewed the law of promissory estoppel in Australia, especially its relatlonship to and interaction wlth the traditional contractual concepts of offer and acceptance, and
consideration. Mason CJ and Wilson J said at 115 that generally a
voluntary promlse will not be enforced because "the promlsee may reasonably be expected to appreciate that, to render it blndlng, lt must form part of a binding contract". However, reviewing recent developments in English case law, then Honours discerned a common llnk

that equlty wlll come to the rellef of a plalntlff who has acted to hls detrmnt on the basls of a mslc assqtlon in relatlon to whlch the other party to the

transaction has 'played such a part in the adoptlon of the

assmptlon that it would be unfalr or unlust if he were left
free to Ignore lt'

In other words, equity in the form of an estoppel will be available to enforce an unfulfilled voluntary promise because departing from the "basic assumptions" of the transaction is unconsclonable. However, Mason CJ and Wilson J point out that the failure to carry out a promlse is not itself unconscionable; it must be supplemented by the existence

of an assumption that the promise will be performed, and a reliance on the assumption by the promisee to hls detriment and wlth the knowledge of the promisor.

Brennan J put the principle at 121:

Equitable estoppel . . 1s to be satlsfled by [the party	estoppedl dolng or abstalnlng from dolng something in order
to prevent detrmnt to the party ralslng the estoppel whlch that party would othemse suffer by havlng acted or abstained from actlng in rellance on the assmptlon or expctatlon whlch he has been mduced to adopt

Both Brennan J and Deane J appear to put paid to the old concept that the doctrine of estoppel is a rule of evidence and not a cause of actlon. Brennan J says that an equitable estoppel 1s "a source of legal obligation" (121). Deane J says that in our fused system of law and equlty, there is no reason to treat estoppel as exclusively equitable

and every ]ustification for treating it as a doctrine of substantive law and equity (136). Deane J says that once recognised as such, the doctrine should be "applied as effectively in relation to a representation or assumption of a future state of affairs as to one of an existing state of affairs" (137). See also Commonwealth of Australia

v Sciacca 119881 78 ALR 279.

Gaudron J said at 140:

The expressions "comn law estoppel" or "evldentlary estoppel", on the one hand, and "equltable estoppel", on the other hand, serve to dlstlngulsh estoppels whlch operate oy reference to an assqtlon of fact and those whlch operate by reference to an assmptlon as to rights

C o m n law or evldentlary estoppel compels adherence to an assunptlon of fact by denying the person estopped the rlght to assert a contrary mtter of fact By so dolng, lt m y operate to fashlon a set of facts by reference to whlch is lmposed a llablllty which otherwise does not exlst

Equitable estoppel operates so as to compel adherence to an assmptlon as to rlghts Sometimes that adherence can only be compelled by the recognition of an equltable entitlement to a positive right m the person clamng the beneflt of estoppel and the enforcement of correlative dutles on the part of the person against whom the estoppel 1s successfully ralsed

Her Honour was of the view that an assumption as to a future right may

provide the basis for the operation of an equitable estoppel.

Although all this seems a long way from deportation orders and ]udiclal review, it seems to follow that a Minister of the Crown may be estopped from exercising a statutory discretion in a way which will break or not fulfil a voluntary promise. The question then arises as to whether there is evidence which fits the criteria laid down in these Judgments for the application of estoppel in this case. There seems llttle doubt

here that a voluntary promise was made by the Minister and that it created or encouraged an assumption in the applicant that it would be kept. The two remaining questions are whether the applicant acted to hls detriment as a result of the assumption and if so, whether there is a public benefit which outweighs and supplants the unfairness to the applicant thereby caused.

The detriment requirement is not easy to fit into the circumstances of this case. It is true, as the respondent argued, that the promise not to deport without a further conviction had, in the ordinary sense, no effect on the applicant at all because he was in gaol at all relevant times. On the other hand counsel for the applicant submitted that Mr Kurtovic acted to his detriment by not pursuing his application for parole after the Court of Criminal Appeal raised the question of hls deportation. This is one way to approach this difficult aspect of the inquiry, but it is not the only or in my opinion the correct way.

When the applicant was told that he was not to be deported, he undoubtedly assumed that, subject to lawful behaviour, he would be entltled to live the rest of his life in Australia. Re would also have

assumed the contrary, viz. that he would not be required to return to Yugoslavia. Re would no doubt have made his personal plans accordingly,	embracing such matters as his approach to the parole application, the
gathering of support outside gaol for his future llfe such as lob opportunlties, and the undoubtedly none too inslgnificant problem for a person in gaol of mental stability and sense of security. Be was obviously encouraged to forgo further psychiatric examinations designed to support any further resistance to deportation and application for citizenship.

The psychiatric and other expert evidence tendered overwhelmingly supports the conclusion that the applicant's crime was one of emotlon and passion; that he has learned the significance of ifs horror; that he is remorseful for what he did; that the rest of his former famlly are not in danger; that other recidivism 1s unlikely; and that he wants to make a good and lawful Australian resldent or citizen. It seems to me reasonable to assume that some or all of these very important developments were caused or contributed to by the revocation of the deportation order and the maintenance of that revocation after the extraordinary intervention of the Court of Crlminal Appeal. Although these matters are not "detrimental" In the usual sense, I thlnk that they are relevant to and should be considered in thls context, as well as in the assessment of the extent of unfairness of the deportation order in issue here. I therefore conclude that thls element of the requirements for the operation of an estoppel is present in this case.

On the issue of the public good, the respondent said, rightly enough, that the power to deport convicted criminals is in this category. However, as I understand the principle, the question is not whether the respondent is estopped from deporting convicted felons but whether equity should come to the aid of this applicant because to deport hlm	now on the same facts on which it was previously decided not to deport	him, would be unfair and unjust without countervailing benefit to the
public at large.
To make sense of this principle, this benefit must in my oplnion be one that has arisen or changed, adversely to the public, since the act which would otherwise have created the estoppel - in this case, the revocation and the letter advising it. In other words, the question 1s whether in 1988 it was for the public good that this applicant be ordered to leave
for reasons which did not apply in 1985 or whlch have deteriorated hls posltlon in comparison wlth the publlc welfare slnce 1985. I can flnd no evidence to support such a flnding. I can see no public benefit to outwelgh the manifest unfairness of this deportation order. I therefore uphold this argument. In my opinion, the respondent 1s estopped from signlng and executing the 1988 deportation order as belng an unconscionable withdrawal from the voluntary promlse in 1985 not to deport him unless a new stated event took place whlch has never happened.
The applicant also submltted that there was another estoppel in that the AAT has already decided the same issues between the same parties and that estoppel can apply to AAT proceedings. In Sciacca this issue was apparently raised but not fully argued. It does not appear to have been decided. A Full Court of this Court (Bowen CJ, Sheppard and Morllng JJ) stated at 283-4:

Counsel for the respondent sbtted that there is no room for the application of the prlnclple of lssue estoppel in

proceedings before the Administrative Appeals Trlbunal
because the prlnclple is a rule of evldence and the Trlbunal 1s not bound by the rules of evldence. s33 of the Ahlnistrative Appeals Trlbunal Act It is true that

decided cases: see, for exarrple, Low v Bouverle 118911 3 Cki	estoppel 1s referred to as a rule of evldence in some of the	82 at 105, per Bowen LJ; H-nrphrles v Hmphrles [l9101 2 KB 531 at 536, per Farwell LJ, Marglnson v Blackburn Borough Council E19391 2 KB 426 at 436, per Slesser LT and D1scour.t
& Flnance Ltd v Gehrlg's NSW Wlnes Ltd L19401 40 =(NSW)
598 at 603, per Jordan CJ Certainly, lt operates to prevent evidence from belng tendered However, other authority describes estoppel as a rule of law: see Canada &
Dominion Sugar CO Ltd v Canadlan Natlonal (West Indles) Cooper 119671 2 QB 459 at 468-9, per Dlplock IJ (as he then was); Mooryate Mercantile CO Ltd v 'Itritchlngs 119761 QB 225 at 241, per Lord Dennlng hR and Queensland v Cornnonwealth [l9771 139 CLR 585 at 614-15; 16 AIR 487 at 509-10, per hckln J The prcblem was adverted to by thls court in mnlster for Lmgration and Ethnlc Affalrs v Danlele [l9811 39 AIR 649 where Flsher and Lockhart JJ sald (at 654)
"Issue estoppel, generally but nct unl;.ersally seen as a
r~le of evldence, can not hav any place in 7roceedlngs of the trlbural a?d is, to the exter.t ti-.at it 1s a rule of ev~de~ce, expressly exclxied by the >rcLrlslons of s33 of the &hunlstratlve Appeals Trlbunal Act Sectlon 33(1)(~)
d1rectlr.g that proceedlngs should be conducted as far as posslble wlth llttle fomallty and techn~callty and s 33(l)(c) to the effect that the trlbunal is not bound by the rules of evldence would appear conclusively to po1r.t to
exclusion of the doctrlne "
If the vlew is taken that issLe estzFpel is a rule of law (whlch m y now be the mre acceptable mew), that would not conclude the mtter, as 1s apparent from what was sald ~y thelr Honours, because of the ahnlstratlve nature of tne trlbunal and the provlslons of s33(l)(b) of the Mmnlstratlve Appeals Tribunal Act whlch dlrects the trlbuxal to conduct its proceedngs, so far as posslble, wlthout fomllty and technlcallty A flndlng by an ahnlstratlve tribunal wlll not glve rlse to an Issue estoppel
In W J & F Barnes Pty Ltdv E T L19571 96 Cm 294, ICltto J sald (at 315) that a taxatlon board of review's declslon was not an ad]udlcatlon; lt was ahnlstratlve in character and could not create an Issue estoppel
The questlon is not a stralghtfomard one and it was not fully argued before us Because of our m e w that the ludgment of Gallop J dld not give rlse to any relevant Issue estoppel, it is unnecessary to declde the pant and accordingly, we express no vlew upon it

Again in Bogaards v McMahon and the Commonwealth 119881 8 AAR 556 where the issue was also left open, Plncus J said at 564-5 that decisions of statutory tribunals may create estoppels but that whether an issue

estoppel may arise from such a decision is an open if doubtful question.

I do not think this matter needs to be decided here either. This case

is now in this Court for limited purposes which do not require a

resolution of this issue. I pass no opinion on it.

6. DENIAL OF NATURAL JUSTICE - Section 5(l)(a) ADJR Act

The applicant claimed that the requirements of the rules of natural lustice were breached in that

(1)	the respondent departed from his earlier decision to revoke the order without giving the applicant an opportunity to be heard on the matter;
(2)	the respondent made a fresh decision on material questions of fact or inferences dravn from those facts without glving the applicant an opportunity to address them;
(3	the respondent departed from the procedures outlined in the

Australian Government's Criminal Deportation Policy (4 May 1983)

and what is known as "the Transitional Policy" (28 March 1984) without giving the applicant an opportunity to consider them and put submissions. The Transitional Policy was established to deal with non-citizens with criminal convictions prior to 2 April 1984. It thus applied to the applicant.

It is further submitted that the letter confirming the revocation created a legitimate expectation that the applicant would not be dealt with by the Minister unless afforded a hearing.

As authority for the proposition that a Minister may not depart from a	previous order without giving the person concerned an opportunity to be
heard, the applicant cited the decisions of Barbaro v Minister for Immigration & Ethnlc Affairs [l9821 46 ALR 123 and Maled Mahmoud
Baoucher v Minister of State for Immigration and Ethnic Affairs, Full
Court of the Federal Court, unreported, 29 September 1988.
Both these cases raised a different issue to that presently being considered, viz. the natural lustice entitlements of non-citizens whose deportation has been before the AAT where the Minister seeks to draw
dlfferent factual conclusions. Barbaro was a case where the Tribunal
recommended that the deportatlon order should be reconsidered and revoked. The question was whether in those circumstances there is a
requirement to extend natural justice before the Mlnisterlal discretion
1s exercised against revocation. Smlthers J stated at pp 131-132:

In these clrcumstances lt is reasonable to conslder whether, In the exerclse of hls duty of reconslderatlon under S 12 of the mgratlon Act, where he proceeds by reference to fmdmgs of fact in confllct nth flndmgs of the Tnnunal, or where conslderatlons thought LTrtant by the Trlbunal have not been so regarded by the Mnister ar.6 contrary conslderatlons have been adopted by hun, or where questions of credlbillty are involved, the rules of natural ~~~~~~e apply, so that the applicant m y have an opportunity to urge hls case in relatlon to such departures What has happened 1s something of a fundamental character What was forirerly a secret exerclse of authority, has become an authority requlred to be based upon stated reasons The effect m y well be that the ldentlflcatlon of facts and mtters sald to

be relevant to the exerclse of the dxcretlon must be openly

mde, thereafter the Mnlster's overall dlscretlon applylng in the llght of such facts and mtters There 1s thus a strong lndicatlon of Parllmnt's lntentlon that the facts on which the dlscretlon is exercised should be known to those concerned The statute mplles a change m the nature of the declsionmklng functlon of the !-hnlster

As Indicated above the AAT Act creates a legltmate expectation that the recmndatlons of the Trlbunal wlll be Ynplmnted, at any rate where conslderatlons of natlonal securlty do not obtrude As to the slgnlflcance of sucn a legitmate expectation, as supportive of the appllcatlon of the prlnclples of natural justlce, I turn to the ludgment of	Stephen J, as he then was in Salenu v Mnlster for	Irmugration & Ethnlc Affalrs (No 2 ) L19771 137 C D 396 at
423; 14 AIR 1 I extract from it the proposltlon, whlch does not appear to be in confllct with anythlng sald by the mlorlty of the court in that case, that whatever m y be the posltlon where, as in relation to prohibited mgrar.ts, a deportatlon provlslon confers upon the bnister an absolute dlscretlon, so that it is dlfflcult to lmply a provlslon that he should observe the procedures of natural justice, nevertheless, where a provision for deportatlon is of such a nature that conslderatlons of reasonableness and fa1rne.s
have been inlected into it by the legislature, ther. r1e situation 1s dlfferent It is then that the observations to
be found in the s~eech of Lord Dennlnq In R v Governor of
case, apply-wlth considerable strength It would seem tnat clrcumstances have arisen where the obsemtlons of the
J~dlclal Comttee of the Prlvy Councll m Duraya~pah v
Fernando [l9671 2 AC 337 at 349 are ln polnt It was there cbserved that the rratters to be taken Into account wner. corslderlng whether there 1s an lmplled duty to obser;e the recplremnts of natural justlce are, flrst the nature of the
complainant's interests; secondly, the condltlons under
whlch the acinunlstratlve authority is entitled to encroach on those interests; and thlrdly, the seventy of the sanction it can lmpose In a ratter of deportatlon, rlghts In property and personal llberty are rele~ant interests, tne sanctlon whlch m y be imposed 1s most severe and tne obsercance of natural justice 1s compatible wlth the purpose and powers of the Wnlster particularly in the llght of the statutory provlslons whlch result in the disclosure by the hnlster of the facts and ratters regarded by P . as relemnt to the exerclse to hls dlscretlon I would refer also to the comnent of Mason J In Re Aborlglnal Land
Connussloner; Ex parte Northern Land Councll 24 Decemer 1984, as yet unreported, that. " the doctrlne of mnlsterlal responslblllty is not ln ltself an adecy~ate
safeguard for the cltlzen whose rlghts are affected Thls 1s now generally accepted and its acceptance underlies the conprehenslve system of judlclal renew of acinunlstratlve actlon whlch now premlls in Australia "
In thls case for the purpose of the exerclse of hls dlscretlon, the finlster departed from the flndngs of the Trlbunal and made Inferences in confllct nth those made by the Trlbunal I conclude therefore, that in thls case, before the order for deportatlon was affllmed there was a duty to extend natural justice to the applicant ar.d those ~mnedlately affected by that declslon If thls looks llke plllng Pellon upon Ossa the answer is that deportatlon is a sanctlon of supreme seventy and Parliament lntends that it be lmposed only where the hnlster's dscretlon is exercised by reference to the real facts and the proper conslderat~ons

In Eaoucher the majority decided that there was no requirement of

natural lustice where the Minister accepted the facts found by the	Tribunal but, without new facts, drew different inferences to the
Tribunal. It is not clear whether the majority supported Barbaro. Northrop .l did not refer to it. Lee J referred to the applicant's submission that as a matter of procedural fairness he should have been given the opportunity to be heard, if the Minister departed from inferences of fact found by the Tribunal, and quoted Smithers J's
definitive dictum without demur:

In respect to the fxst ;olnt, the ap>ellant relled u>on the follomng corrrnents by Snuthers J In Barbaro v,%~.lster for ibmgratlon & Ethnlc Affairs [l9821 46 A L R 123 at p 130

"The finister is not bound to adopt all the f1nd;ngs of fact of the Trlbunal or to glve to Inferences of fact the same welght and dlrectlon as was glven to them by the TrlCunal

But if the recomnendatlon 1s to be meaningful then 1: would seem that the least that can be sald 1s that where those flndlngs of fact and Inferences are to be departed frcm, tne person concerned should be glven the opportunlty to rake representations "

However, Lee J thought that the relevant differences between the vlews of the Minister and the Tribunal were matters of opinion and not findings of fact.

Sheppard J (dissenting) expressly approved Barbaro. Bls Honour stated at page 34 of his ludgment:

Barbaro's case, hlch, in my respectful oplnlon, was correctly declded, established that, if the V~nlster lntended to depart from the facts found by the Trlbunal, to draw Inferences of fact different from those drawn by lt, or to rely on further matters not adverted to by the Trlbunal, he was bound to lnform the person concerned of wnat he proposed to do and glve h1.m an opportunlty of maklng further suh7ussions

The applicant submitted that, on any view, the finding in Haoucher was	that such circumstances give rlse at least to a legitimate expectation
that the applicant would not be adversely dealt with by the Minlster unless afforded a hearing. Especially is it the case that if, as the Minister contends, there is fresh material, the decision in Haoucher would require the Minister to put that fresh material to the applicant before a decision was made. It is difficult to say if the first of these two propositions flows from Eaoucher but I am of opinion that the
second does. I do not read Raoucher as deciding that in an approprlatc case, a right to make submissions is not available before there is a departure from an earlier decision, including on the question as to whether there are new facts in truth.
Eaoucher also considered whether natural lustice is required when a published Government policy is departed from. The malority held that no
legitimate expectation was created by the existence of the Criminal
Deportation Policy. Lee J stated at page 9 of the printed ludgment:

In regard to the appellant's contention that he had a legltmte expectatlon that the knlster would only fall to accept the Tribunal's recomnendatlon if exceptlonal clrcmtances exlsted and that he would be glven the

opportunity to be heard in that regard, it 1s necessary to

look at the statement of pollcy to detemne the nature and

extent of the expectatlon Although the statemnt of po:lcy

m y have glven rlse to an expectatlon that the recomnendatlon of the Trlbunal would nonnally be accepted, the actual terms of the pollcy could not have grounded an

expectation of a rlght to be heard	Unllke he Attorney
General of Hong Kong v Ng Yuen Shlu [l9831 2 A C	629 where

the stated pollcv D ~ O I N S ~ ~ an oDDortunitv to make ~~

representations, the -~runinal ~eportatlon p&cy merely

ldcated the guldellnes the bnlster sald he would follow

Similarly, Northrop J. stated at 4 :

At the hearing of the appeal, counsel relled strongly upon
the terms of the Crmnal Eeprtatlon Pollcy	It must be

remembered that that Pollcy does not constitute a law It does not have the effect of a law Once the condltlons prescribed in s 12 of the Mgratlon Act have been

established, the Mnlster "my order the deportation" of the

person c m n g wlthln those- condltlons -The &scretlon
conferred upon the bnister by the section is unfettered but
~t must be exercised according to law

I agree with respect with Sheppard J, who also dissented on this polnt, that this Policy did give rise to a legitimate expectation that before it was not followed, an opportunity to make submissions would be glven.

Although the facts of this case are distinguishable from Haoucher, I am constrained by that decision to preclude the applicant from relylng on any departures from the Criminal Deportation Policy and the Transitional Policy.

I am, however, of the opinion that the other submissions of the

applicant should both be upheld. If a decision once made and revoked, 1s to be re-made on the same facts after the person concerned has been told in effect that new facts would need to exist before the same decision would again be considered, it seems to me that there 1s an obligation to permit further submissions to be put. The fact that such a statement is proffered raises a legitimate expectation that the declsion will not be re-made without the opportunity of submissions on the new facts relied on including whether these facts are in truth new. Further, although as I have earlier said, I have not been able to flnd any new facts to ground the 1988 order, the respondent's allegation that there were obliges him to make them available to the applicant to address.

7 .       TEAT THE MAKING OF THE DECISION WAS NOT AUTFIORIZED BY TEE

MIGRATION ACT - Section 5(l)(d) ADJR Act

This argument centred on the existence of the Criminal Deportation Policy and the Transitional Policy. Paragraph 4 of the Criminal Deportation Policy provides:

It is the pollcy of the Australian Government that recomndatlons of the Zkhnlstratlve Appeals Tribunal should be overturned by the Mlnlster only ln exceptlonal clrcmtances and only when strong evldence can be produced to justify his declslon mrthenrore, it is the pllcy of the Government that, when the Mlnlster decldes to deport a person contrary to a recomndatlon of the Tribunal, the Mlnlster will table in the Parliament at the flrst

opportunity a statement of hlslher reasons for dolng so

The Transitlonal Policy was:

Non-cltlzens convicted of offences comtted ~rlor to the date of proclmtlon of the amended Act and who, although llable for deportation under the amended Act are not llable under present leglslat~on (should not be deported), but

excluding cases whlch corn to notlce lnvolvmng very serlous

crmes and/or where speclal circmtances exlst whlch
warrant (the hnlster's) persor.al cons~deratlon

The "special circumstances" calling for the personal attention of the Minister were said to include "a persistent serious offender who represents a real threat to the community".

It was submitted that:

(1)	the respondent was required to find that there were "exceptional circumstances" and "strong evidence" withln the meanlng of paragraph 4 of the Criminal Deportation Policy
(11)	if he did so, the findings were wrong and without evidence
(111) the respondent was required to flnd that the applicant was a "persistent serious offender who represents a real threat to the comunity" within the meaning of the Transitlonal Policy, but did not so find because he could not on the facts do so.

The legal effect of policy statements of this kind has already been referred to. Despite my agreement with the dissenting judgment of Sheppard J in Baoucher, the malority judgment means that the applicant's argument must also fail under this heading. Whether departures from

policies can be relied on under other provisions of the ADJR Act is not
necessary for me to resolve here.

1. THAT TEE W I N G OF TEE DECISION WAS AN IMPROPER EXERCISE OF

POWER - Section 5(l)(e) ADJR Act

Nelther party addressed specific argument on this claim, whlch was not clearly particularised, possibly because it would have been merely repetitive of the other claims. There was no evidence or no new evidence, lay or expert, which made possible any conclusion that

recidivism was likely, or that there were mental or other health reasons

for deportation. It seems to me that these matters, amongst others, were relevant considerations to be considered if rational and not impulsive or politically motivated conclusions were to be drawn They

do not appear to have been considered, certainly not in relation to the position as it was in 1988 when the relevant decision was made. The inference I draw is that relevant considerations were omitted and that irrelevant considerations were relied on.

For all these reasons, I think that judicial review should be ordered and the matter remitted for further consideration according to law.

However, my determination that the respondent is estopped from exercising the power to deport in the absence of the conditions of the	promise not to do so seems to make flndings and orders to this effect
unnecessary and inapproprlate. I shall hear the parties on the orders I should now make to give effect to these findings and opinions.

.

I cert~fy !hat this and the r-; 3.m L

prcccd~cq p x e s are a true copy of the

Fc-sons for Jvdgment hereln of h ~ s	Honour
r	Jcst~ce E~nfeld "

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