Maiorana, J. v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 708

CATCHWORDS JUDGMENT No. .rn8....~

IMMIGRATION - interlocutory restraint in respect of deportation order - whether power in S. 55 was exercised on a ground within the scope of the power - exceptional circumstances required to justify Minister departing from recommendation of Administrative Appeals Tribunal - whether in a case where Administrative Appeals Tribunal had held deportation order void as distinct from recommending its revocation, the Minister's decision or reconsideration could stand without a fresh order.

Miaration Act, 1958, S. 55

JACOUES MAIORANA V MINISTER FOR IMMIGRATION. LOCAZ, GOVERNMENT
AND ETHNIC AFFAIRS

NG 639 of 1992

10 September 1992

Burchett J.
Sydney

JJ THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) NG 639 of 1992

)

GENERAL DIVISION )

BETWEEN:  JACOUES MAIORANA

Applicant

AND :  MINISTER FOR IMMIGRATION. LOCAL
GOVERNMENT AND ETHNIC AFFAIRS

Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE r 10 September 1992

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

In this matter I am asked to grant interlocutory relief to restrain the deportation of the applicant from Australia pending the hearing of proceedings in which he seeks to challenge a decision of the Minister made under S. 55 of the pliaration Act 1958. The history of the matter is extremely complex. It has been set out in the material, and I do not	think it is necessary for the purposes of this interlocutory	application to tell this story once again; it has already been
told a number of times. The application will raise, at the hearing, questions as to the construction of the power to deport a person, who is a non-citizen, in certain cases where he has been convicted in Australia of an offence. That power is to be found in S. 55.
There is a fundamental question of construction, as to which the parties are in dispute, related to the reasons which may actuate the decision of the Minister. In this particular case, there was an appeal to the Administrative Appeals Tribunal which was heard by Deputy President Bannon, now Mr Justice Bannon, who reached the conclusion, and I quote:

"[Tlhe power of deportation is being utilised for ulterior motives, arising from [the applicant's] bad record of convictions over the years for housebreaking and not because of his convictions in

1979. "

The point of the reference to convictions in 1979 is that later convictions were outside the period specified in S. 55. There is, I think, a distinction between a view that the Minister made inappropriate use of later convictions in considering the exercise of his discretion, and a view that the exercise of discretion was actually based upon a matter outside of the scope of the power conferred upon him by S. 55. It is the latter which I understand the learned Deputy

expression which I have quoted, "ulterior motives". This is	President to have held was the case here, when he used the
an unusual finding, perhaps, in relation to the exercise of such a power, but I do not think, upon the present interlocutory application, I could say that the conclusion reached by the learned Deputy President was definitely not open to him.
On the contrary, I think that the fact that he reached that conclusion, in a decision from which there does not appear to have been any appeal, taking into account the circumstances which he discussed in his reasons and which have been put before me, does raise a serious question to be tried. I say nothing, of course, as to what the ultimate conclusion ought to be, and I acknowledge that the case is one where the record of the applicant necessarily raises doubts as to the desirability of his continued residence in Australia. But that is not to say that those doubts may not be founded upon matters which the tens of the legislation do not entitle the Minister to make the basis of a decision.
It is, of course, clear from the ministerial policy applicable to cases where the Administrative Appeals Tribunal has recommended the revocation of a deportation order, that special and exceptional circumstances are required to justify departure from the recommendation. Not only is this the policy, but one would think it inevitably follows from the
upon that review, the Tribunal will normally have the benefit provision for review by the Tribunal, and from the fact that,
of an extended examination of the facts, with cross- examination of witnesses, that something more than the possibility of different minds seeing the situation differently must have been contemplated by Parliament in setting up this procedure.
However, Mr Catterns, for the Minister, argues that in the present case the terms of the learned Deputy President's decision limit it to the legal issue to which reference has already been made, and lessen the weight of the consideration I have just mentioned. I am not entirely sure that that is so, but I do not need to pause to analyse the argument in detail, because I think there is a sufficiently serious question of construction of the legislation, as I have already said. It seems to me that once one finds a serious question as to the construction of the power of deportation and the validity of the deportation order, there can be no doubt where the balance of convenience lies; indeed, the contrary was not urged upon me.
It follows, from the point upon which Mr Bannon, as he then was, decided the matter before him, that the real question for the Minister was not whether he should revoke the order previously made. On the view taken by the Administrative Appeals Tribunal, that was simply void. The
make a fresh order. I have taken into account also this question for the Minister was rather whether or not he should
aspect of the matter in holding that there is a serious question to be tried, since the Minister neither purported to make a fresh order, nor applied his mind to the question whether he should do so. For these reasons, I propose to grant interlocutory relief.
I make an order in terms of paragraph 1 of the notice of motion. I reserve costs.
I direct the applicant to file and serve any further affidavits by 24 September and the respondent to file and serve any affidavits by 25 September 1992. I appoint 25 September for further directions, subject to further order.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

Associate:

Date: 10 September 1992