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

[1993] FCA 226

Re: JACQUES MAIORANA
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. NG639 of 1992
FED No. 226
Number of pages - Administrative Law
(1993) 31 ALD 352 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J(1)

CATCHWORDS

Administrative Law - judicial review - deportation order based on earlier conviction - subsequent non-deportable criminal history - promise by executive government not to exercise its power to deport based on earlier conviction - legitimate expectation - natural justice - administrative estoppel - reliance

Migration Act 1958 (Cth) s. 55

Migration Amendment Act 1983

Migration Amendment Act 1989

Judiciary Act s. 39B

Haoucher v Minister for Immigration, Local Government and Ethnic Affairs (1990) 169 CLR 648

Attorney General (NSW) v Quin (1990) 170 CLR 1

Commonwealth v Verwayen (1990) 170 CLR 394

Kurtovic v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 FCR 193

Kurtovic v Minister for Immigration Local Government and Ethnic Affairs (1989) 86 ALR 99

Keenan and Bunker v Minister for Immigration, Local Government and Ethnic Affairs Einfeld J, unreported 16 April 1993

McLachlan J, Substantive Fairness: Elephantine Review or a Guiding Concept? Part II (1991) 2 Public Law Review 109

Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 2nd ed. (Butterworths 1992)

HEARING

SYDNEY, 21 October 1992

#DATE 22:4:1993

Counsel and solicitor : Mr T Robertson
for the applicant instructed by NSW Legal Aid

Counsel and solicitor : Mr D Catterns
for the respondent instructed by the

Australian Government Solicitor

ORDER

The Court orders that:

1. Application dismissed.

2. Applicant to pay respondent's costs.

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

JUDGE1

EINFELD J Jacques Maiorana (the applicant) seeks judicial review of the decision of the Minister for Immigration, Local Government and Ethnic Affairs (the respondent) on 13 December 1991 not to revoke a deportation order made against him on 1 March 1988. The deportation order is stated to have been made in pursuance of the power conferred on the respondent by section 55 of the Migration Act 1958 (Cth) (the Act). It was based on the conviction of the applicant at Liverpool District Court on 8 November 1979, of the offence of break, enter and steal committed on 27 June 1979 for which the applicant was sentenced to two and a half years imprisonment (the 1979 offence).

1. The applicant is a French citizen born on 19 January 1951 in Algiers. He came to Australia with his sister and stepbrother in July 1969 and has lived here ever since, except for a holiday in France for about two weeks in 1973. Although the applicant has therefore lived in Australia for almost twenty four years, he has spent lengthy periods in prison and has a long criminal record. He was married on 4 June 1989 to a British citizen who was illegally in Australia and the couple had a daughter on 29 September 1989. However, Mrs Maiorana and the child left Australia on 18 January 1991 to return to the United Kingdom because of the ill health of Mrs Maiorana's father. They have apparently not returned.

2. Section 55 of the Act provides:
   

Where -

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

(b) 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 years or for periods that, in the aggregate, do not amount to a period of 10 years; and

(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of less than one year, the Minister may order the deportation of the person.

1. The legislative history of this section is important to understand the history of the applicant's long fight with the Immigration Department to remain in Australia. Initially the Migration Act 1958 drew a distinction between the treatment of British and Irish subjects on the one hand and people called aliens on the other. In particular the legislation provided that British and Irish migrants could only be deported for committing a deportable offence if it was committed within five years of arrival in Australia, whereas aliens could be deported for committing a deportable offence at any time. By the Migration Amendment Act 1983, the relevant parts of which came into effect on 2 April 1984, Parliament provided for the same treatment of all migrants -- that is, the deportable offence had to have been committed within 10 years of arrival. Since the Migration Amendment Act 1989, this provision has been the present section 55. It is clear from the applicant's criminal record that the only deportable offence he committed within 10 years of his arrival in Australia was the 1979 offence. This offence satisfies section 55 in that it is an offence for which the applicant was sentenced to imprisonment for a period greater than one year.

2. On 23 July 1980 the then Minister for Immigration and Ethnic Affairs, the Hon. Ian Macphee MP, decided not to order the applicant's deportation following the 1979 offence. Rather Minister Macphee administered a warning to the effect that any further transgression would almost certainly result in his deportation. The applicant failed to heed this warning and committed further offences which resulted in three convictions on 29 October 1981 at the Liverpool District Court for stealing for which he was sentenced to four years imprisonment. As a consequence the then Minister, the Hon. John Hodges MP, signed a deportation order on 8 August 1982. The applicant applied to the Administrative Appeals Tribunal (AAT) for review of this deportation decision, and on 1 September 1983 the AAT affirmed the decision to deport.

3. On 11 April 1984 the agreement of the then Minister, the Hon. Stewart West MP, was sought to execute Minister Hodges' deportation order against the applicant. Minister West did not agree with the recommendation that the applicant's deportation proceed and on 1 May 1984 he revoked the order. The letter communicating the revocation of the deportation order to the applicant dated 28 May 1984 also stated: "No further action to deport you will be taken under the present legislation." This reference to the present legislation seems to refer to the then newly commenced 1983 amendments which in essence meant that no further offences by the applicant could ground a deportation order.

4. Following further convictions of the applicant on 23 May 1986 and after enquiries from the media, the then Minister, the Hon. Chris Hurford MP, requested advice on legal and other considerations relating to the possible deportation of the applicant. In October 1986 Minister Hurford was advised that although none of the applicant's recent offences rendered him liable to deportation because they were committed after he had completed 10 years' residence in Australia, and notwithstanding the previous assurance that he would not be deported, his deportation could be ordered on the basis of the 1979 conviction. Consequently, on 26 October 1986 Mr Hurford agreed to consider the question of the applicant's deportation afresh upon receipt of necessary up-to-date reports.

5. On 1 March 1988, the then Minister, the Hon. Clyde Holding MP, issued a deportation order against the applicant. This deportation order was appealed to the AAT and on 27 February 1989 Deputy President, now Mr Justice, Bannon, recommended that the deportation order be revoked. In particular then Deputy President Bannon stated at page 13 of his reasons for decision:
   

(T)he 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.

1. Despite this recommendation, on 13 December 1991 the then Minister, the Hon. Gerry Hand MP, affirmed the deportation order. Reasons for this decision were provided on 26 August 1992, the last paragraph of which said:
   

I concluded that the circumstances of Mr Maiorana's case, in spite of the AAT recommendation to revoke, were exceptional and that the deportation order should be affirmed. The evidence of recidivism in this case is extremely strong and Mr Maiorana's own comments did not dissuade me from this view. I concluded that the protection of the Australian community from the almost certain likelihood of further crimes outweighed the hardship to Mr Maiorana and his sister. Similarly, the prospect that Mr Maiorana would resume his family life in Australia did not outweigh the prospect of further criminal behaviour.

1. By his amended application for judicial review and an injunction under section 39B of the Judiciary Act, the applicant seeks an order setting aside Minister Hand's deportation order on the grounds that:
   1. the deportation order was made on the basis not of the 1979
   

offence but of later offences which could not be considered because they occurred more than 10 years after the applicant's arrival in Australia; and

2. because Minister West revoked an earlier deportation order and

promised not to deport the applicant for the 1979 offence, Minister Hand's deportation order is estopped or void or should not be permitted to proceed.

1. The applicant argued that Minister Hand's reliance on the 1979 offence as the only deportable offence is "merely a convenient artifice to give a cloak of legality to the order which is firmly grounded in and occasioned by his subsequent offences, all of which were committed after the expiry of ten years from his entry to Australia" (applicant's written submissions). The deportable offence was not listed in the Criminal Deportation Policy announced to Parliament by Minister West on 4 May 1983, and departmental documents, especially a minute to the Minister on 24 February 1984, make clear that no consideration would have been given to deportation were it not for the applicant's subsequent deplorable but not deportable criminal history. This was also the view of Deputy President Bannon in the AAT in 1989.

2. A promise by the executive government not to exercise a power in the future is not binding if it conflicts with a statutory duty or involves the promisor or another public officer in an ultra vires act. However, so long as the promisor is not acting contrary to law in making the promise, s/he is bound by the promise where it affects an important human right, where the promisee would be expected to rely on it, and where it would be unfair to the promisee and contrary to the public interest for the promisor to go back on it: see the authorities I gathered in Keenan and Bunker v Minister for Immigration, Local Government and Ethnic Affairs unreported 16 April 1993 at pp 14-17 including Attorney General (NSW) v Quin (1990) 170 CLR 1. Insofar as Kurtovic v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 FCR 193 contains some dicta to the contrary, it appears to be wrong.

3. If it is appropriate to import private law principles of estoppel and reliance into public law: see the authorities I collected in Kurtovic v Minister for Immigration Local Government and Ethnic Affairs (1989) 86 ALR 99 at 108, the applicant says that the recent development of a substantive estoppel supports their application in this case: Commonwealth v Verwayen (1990) 170 CLR 394. It seems, however, that it is unnecessary to do so as public law principles have developed analogously with private law estoppel to combat unconscionable conduct by officials exercising public power.

4. The applicant submitted that enforcing the promise in this case would not significantly hinder the exercise of the relevant discretion in the public interest: see Quin per Mason CJ at 18. Nor was the promise made in "advance of the actual exercise of power": ibid at 17. The applicant contended that the promise was actually given "in the course of refusing to exercise the power: far from foreclosing the exercise of a discretion, it accompanied the exercise of the discretion not to deport" (applicant's written submissions).

5. Alternatively the applicant submitted that the making of the promise gave rise to a legitimate expectation that the promise would be kept and it is a breach of the rules of natural justice and an abuse of power to deny that expectation: Haoucher v Minister for Immigration, Local Government and Ethnic Affairs (1990) 169 CLR 648; Keenan and Bunker at pp 8 and 13-14.

6. It has been recently said that unless the adoption of a future policy would restrict the future exercise of discretion, or the right to adopt a policy at all is prohibited, or the particular policy adopted is unlawful, then fairness requires that:
   

... there should be a qualification that a change of policy should not be allowed to diminish a person's legitimate expectation of conformity to the (earlier) policy unless there is some overriding public interest justifying the diminution.

(McLachlan J, Substantive Fairness: Elephantine Review or a Guiding Concept? Part II (1991) 2 Public Law Review 109 at 118)

1. The first suggested ground of review is in substance a claim that irrelevant matters were considered or relevant matters were ignored. The second ground of review raises a claim of a breach of natural justice in its modern emanation of denial of procedural fairness. There is no doubt that Minister Hand had the power under section 55 to make the order. Accepting, as his reasons for decision state, that he was anxious to protect Australia and Australians from the applicant's well established criminal propensities, it was manifestly lawful to exercise the power to order deportation. The first question is therefore whether taking account of the applicant's post-1979 convictions allowed an irrelevancy to enter into the Minister's considerations.

2. I think not. It is clear, and not disputed, that the possibility of recidivism is relevant to the question of deportation. Despite the evidence presented to the Minister, and to the Court, that the applicant has reformed and that his criminal past was largely due to an authoritarian upbringing and an addiction to heroin, it was well open to the Minister to conclude that there was a high degree of probability that the applicant would commit further serious offences. I cannot accept that it was irrelevant for him to consider the post 1979 behaviour on this issue. To have done otherwise would have been artificial and unreal, and distinctly recreant to his obligations to the Australian people. Section 55 simply cannot be construed as requiring that the consequences of a deportable crime must be considered in the deliberate and known absence of a subsequent history which places the deportable offence in the context of the time when the power to deport is being considered and assists the formation of proper conclusions in relation to it.

3. The "natural justice" plea in this case turns on the concept of what is now generally known as administrative estoppel. Despite Quin, this concept is still in the evolutionary phase. Nor is this case much advanced by the views expressed in Verwayen. One element of promissory estoppel is that the person seeking to invoke it must establish that s/he acted in reliance on the promise: Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 2nd ed. (Butterworths 1992) paragraph 1706. In this case, that can only have the more than faintly absurd result that the applicant committed further non-deportable crimes in reliance on a promise that he could no longer be deported for the 1979 offence. This cannot be a basis for invoking a public interest concept such as forms the rather narrow present basis for administrative estoppel.

4. The law may sometimes exhibit less than admirable qualities as often reputed; it is certainly not always possible to explain it in simple, easily intelligible words. But to conclude that in the interest of procedural fairness, a non-citizen who has chronically refused to comply with even the most basic of civic obligations, should be able to rely upon a government promise not to exercise a lawful and available power to deport, made before a number of the breaches had been committed, is not only not rational or explicable; it is in my opinion not the law.

5. The application is dismissed with costs.