McDowall, G.M. v Minister for Immigration, Local Government & Ethnic Affairs
[1988] FCA 807
•15 DECEMBER 1988
Re: GEORGE MARTIN McDOWALL
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. VG 429 of 1988
Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)
CATCHWORDS
Immigration - judicial review of decision to deport - whether failure to take into account relevant considerations - whether duty on Minister to have regard to material before the AAT including material not referred to in its reasons for decision
Migration Act 1958
Wiggan v Minister of State for Immigration and Ethnic Affairs (unreported Forster J. - delivered 9 February 1988) Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139
HEARING
MELBOURNE
#DATE 15:12:1988
Solicitor and Counsel for Applicant: Mr. John Little
Solicitor for Respondent: Australian Government Solicitor
Counsel for Respondent: Mr R R S Tracey
JUDGE1
This application, as filed, seeks to review two decisions by the respondent Minister:
"(a) the decision of 10 October 1988 not to accept the AAT recommendation to revoke the deportation order against the applicant and
(b) the decision of 28 January 1988 to make the deportation order."
As to the decision of 10 October 1988, the ground to which the applicant's principal submission was advanced by the applicant was that "the making of the decision was an improper exercise of a power conferred by the Migration Act 1958 in that the respondent ... failed to take relevant considerations into account, namely, ... (B) the evidence and submissions put to the Administrative Appeals Tribunal.
Mr. Little submitted that the Minister was required to look at the material put to the Tribunal, including material that was not referred to by it in its reasons for decision. He submitted that the Minister had a duty to acquaint himself with what happened before the Tribunal and further that, where there was a summary of proceedings before the Tribunal, there was a duty on the officers of the Minister's department to put that summary - or at least part of that summary - before the Minister.
A letter ("the letter") to the Minister's department, from the Australian Government Solicitor, dated 24 August 1988, included the following:-
"The submissions put on behalf of the Applicant summarising the evidence given before the Tribunal are set out below:- ....
- He had told his mother a fortnight before the offences were committed that he wished to move out from the bad company he was associating with at the alley way and would let his lease on the business premises expire on 5 August."
The passage quoted, which refers to the applicant's mother, ("the particular item") was the third of 14 items set out in that letter.
I am unable to uphold Mr. Little's submission that the Minister and the departmental officers were under such a duty; there is no support for the submission in the decision in Sezdirmezoglu and Anor. v Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561, because the facts there were (at 572) that "the evidentiary position was seriously distorted in what was conveyed to the Acting Minister". With respect, I agree with, and adopt the following passage from the judgment of Forster J. in Wiggan v Minister for Immigration and Ethnic Affairs (1988) 80 ALR 243 at 249:-
"Ground 3(a)(i) complains that when considering the matter of the applicant's deportation in accordance with the recommendations of the Administrative Appeals Tribunal the respondent Minister did not apparently consider evidence heard by and the submissions made to the tribunal. The only document to do with the hearing before the tribunal considered by the respondent Minister when reconsidering the matter in accordance with the tribunal's recommendations was that containing the decision and reasons of the tribunal. In Haoucher, supra, I said that the obligation of the Minister was "seriously to consider the recommendations of the tribunal and give them proper weight". I adhere to that view and am unable to find that there is any obligation upon the Minister either under the head of natural justice or any other head to read all the evidence before the tribunal and the addresses to it in order, in effect, to check whether the tribunal has done its work adequately. The Minister must consider seriously any recommendations of the tribunal but is not required by law in my view to read the evidence or the submissions unless perhaps something in the reasons of the tribunal requires amplification or explanation and nothing of the sort is suggested here."
I also agree with the statement by Forster J. in Haoucher v The Minister of State for Immigration and Ethnic Affairs (unreported, delivered 9 February 1988):-
"In the present case the Minister ... disagreed with certain opinions expressed by the tribunal. Matters of opinion are just that and the Minister is entrusted by the Migration Act with the discretion to act in accordance with his opinion."
An appeal from his Honour's judgment in that matter was dismissed by the Full Court (unreported - delivered 29 September 1988). In that judgment Northrop J. said:-
(pp 3-4) "In this context, the requirement that the Minister "have regard to the Tribunal's recommendation" is to be understood to mean that the Minister must take the recommendation into account and to give due weight to it. Although the Minister has the duty to take the recommendation and the reasons of the Tribunal into account and to consider them and give due weight to them, nevertheless the Minister has the ultimate discretion which must be exercised." ....
(p 7) "It must not be forgotten, however, that the power being exercised by the Minister is the power or discretion conferred on him by s. 12 of the Migration Act and ultimately he is the person, and the only person, who must exercise that discretion."
The Tribunal's decision was made under s. 66E of the Migration Act 1958, which included the following provision:-
"(3) After reviewing a decision referred to in sub-section (1), the Tribunal shall either affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the Tribunal."
In Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139 Gibbs CJ., Mason, Aickin and Wilson JJ., said at 143:-
"In the first place there is the fact that a decision of the Tribunal binds the Minister only to the extent that it may require him to reconsider his decision. If this Court were to affirm the dismissal by the Federal Court of the appeal from the Tribunal's decision, the Minister would remain free, on reconsideration, to decide that the deportation should proceed. In other words, a decision of this Court dismissing the appeal would not bind the Minister to adopt the recommendation of the Tribunal. Although the Minister would be obliged to reconsider the matter, he would not be bound to exclude from his consideration evidence which the Tribunal or this Court considered was of insufficient probative value, or to give weight to material which the Tribunal or this Court considered to be of decisive importance. He would not be required to accept as correct any views as to the facts, or as to the weight of the evidentiary material, expressed by the Tribunal or the Court; he would merely be required to have regard to the Tribunal's recommendation."
In my opinion there was no duty on the Minister to consider the letter or the particular item; nor was there any duty on the officers of the respondent Minister's department to supply that letter to him. The Minister had before him the reasons for decision of the Tribunal and they did not refer to the evidence cited in the paragraph of the letter which has been quoted earlier.
If that evidence was in fact "crucial", as Mr. Little has contended, a submission or a letter could have been sent to the Minister by him. He "has been the applicant's solicitor since about 18 March 1988" and appeared for the applicant before the Tribunal and could have written, after the delivery by the Tribunal of the reasons for decision, drawing the Minister's attention to the evidence and asking that he take it into account in his reconsideration of the matter. That course was not followed.
There are various matters which may be relevant to the absence, from the Tribunal's reasons for decision, of any reference to the evidence cited in the particular item in the letter. (1) The letter does not state whether the evidence in the relevant paragraph was given to the Tribunal by the applicant or by his mother or by both of them. If it was evidence by the applicant then it cannot be assumed that the Tribunal would have accepted it as truthful. Dealing with another aspect of the matter, the Tribunal said (at page 9):
"However, I was left with the firm impression that he did not tell me the whole truth; his memory of the events of that night appeared to be too selective. I consider it likely that his recollection of the part he played in the second and third robberies was not as poor as he wished the Tribunal to believe and that he was deliberately avoiding disclosing facts that he thought might damage his case in this proceeding."
(2) There is apparently no transcript of the evidence which was given to the Tribunal and the paragraph in the letter referring to that evidence does not purport to be either a verbatim - or a full - account of that evidence, and of any cross-examination in respect of it. That is not surprising, of course, because the letter writer was only setting out the way in which the applicant's submissions before the Tribunal had summarised the evidence i.e. the summary is not one prepared by the letter writer himself.
(3) The Tribunal also stated (page 10-11) that "many people who gave evidence that they knew (the applicant), including his parents and his sister", were not "aware that he had either of these problems" (i.e. excessive consumption of alcohol and the abuse of drugs). That finding may well have affected the Tribunal's view of any evidence given by the mother as to the particular item in the letter.
(4) The Tribunal also referred to an opinion expressed by one of the friends of the applicant that he "was easily led into trouble" (page 11). At an earlier stage (page 10) the Tribunal had expressed the belief "that the risk of his re-offending depends largely on whether or not he avoids them (i.e. alcohol and drugs) in future".
As to the risk of recidivism the Tribunal said (at page 11):-
"Nevertheless, because of the matters to which I have referred, I have no great confidence that over the years ahead he will consistently maintain that resolution and will not commit traffic offences and comparatively minor offences involving dishonesty. I think it unlikely, however, that he will commit further serious offences involving violence."
It may be added that the Tribunal's reference to "traffic offences and comparatively minor offences" is somewhat surprising as the Tribunal had earlier referred to the previous convictions of the applicant (page 5). They included "theft of a bicycle, theft of a motor car (two offences), driving in a dangerous manner, ... driving while disqualified, driving when his blood alcohol level exceeded .05%, unlawful assault, possessing a firearm without a licence and handling stolen goods."
In my opinion on all of the material before the respondent Minister, including the seriousness of the offences committed on 26 and 27 July 1985, the Minister was fully entitled to decide that he would not accept the Tribunal's recommendation.
Accordingly the application must be dismissed and the applicant ordered to pay the costs of the respondent.
0
2
0