Paull, David v Department of Immigration and Multicultural

[1998] FCA 1347

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – migration – criminal deportation order – whether Administrative Appeals Tribunal had exercised discretionary power in accordance with policy without regard to the merits of the particular case – whether respondent estopped from issuing criminal deportation order on basis of a letter sent to the Attorney-General – whether any factual basis for estoppel made out – whether any legal basis whereby respondent might be estopped from issuing criminal deportation order – whether applicant had legitimate expectation that the respondent’s representation, made in that letter, that the applicant would not be deported, would be fulfilled – whether the Tribunal failed to take into account a relevant consideration (the letter) – applicant in prison – eligible for work release – prison authorities would not let a prisoner out on work release if the subject of a criminal deportation order – applicant contended that his release on work release would be in the primary interests of his seventeen year old daughter – whether Tribunal obliged to approach matter on the basis that the daughter’s interests were a primary consideration – Convention on the Rights of the Child - criminal deportation order not due to be carried out until 25 April 2000 when daughter would be over eighteen – whether any impact of the refusal of work release to the applicant was relevantly caused by the respondent’s decision.

Migration Act 1958 (Cth), ss 200, 201

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 referred to
Attorney-General (NSW) v Quin (1990) 170 CLR 1 referred to
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 applied
March v Stramare(E. & M.H.) Pty Ltd (1991) 171 CLR 506 applied
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 referred to
Adamou v Director-General of Social Security (1985) 3 AAR 321 referred to
Ferriday v Repatriation Commission (1996) 42 ALD 526 referred to
Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 30 ALD 455 referred to
Australian Fisheries Management Authority v P W Adams Pty Ltd (1995) 39 ALD 481 referred to

Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726 referred to
Secretary, Department of Social Security v Cooper (1990) 21 ALD 155 referred to
Secretary, Department of Social Security v Salvona (1989) 18 ALD 289 referred to

R v Secretary of State for the Home Department; Ex parte Khan [1985] 1 All ER 40 referred to
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to
Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 referred to

DAVID PAULL v DEPARTMENT OF IMMIGRATION AND
MULTICULTURAL AFFAIRS

No WAG 30 of 1998

CARR J
PERTH

23 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 30 of 1998

BETWEEN:	DAVID PAULL Applicant
AND:	DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	23 OCTOBER 1998
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 30 of 1998

BETWEEN:	DAVID PAULL Applicant
AND:	DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	23 OCTOBER 1998
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

This is an application by way of an appeal from a decision of the Administrative Appeals Tribunal, given on 5 February 1998, affirming a decision of a delegate of the respondent, made on 8 April 1997, under s 200 of the Migration Act 1958 (Cth) (“the Act”), to deport the applicant.

Factual Background

The applicant was born in England on 16 May 1942. Between 1954 and 1965 he was convicted of various offences in the United Kingdom, receiving sentences ranging from fines to fifteen months imprisonment. On 17 March 1966 the applicant applied for assisted passage to Australia. In response to that application, the Department of Immigration advised the applicant that in view of the abovementioned convictions, he was ineligible for passage assistance and that the Department would not authorise his entry into Australia, even on a full fare paying basis. A “STOP” Card was inserted in the relevant index. In 1967 the applicant migrated to Canada, but was deported later that year because of his criminal convictions in the United Kingdom. On 12 February 1968 the applicant applied to enter Australia through the Assisted Passage Scheme using the name of his brother, Joseph Chuwen. It appears that that application was granted. At the time, the applicant was married with two children and two step-children of his wife’s previous marriage. On 5 May 1968 the applicant entered Australia under his brother’s name. He was deported to the United Kingdom on 14 June 1968. On 13 November 1970 the applicant was convicted of several offences relating to motor vehicles for which he was fined and disqualified from driving for eight years. During the next four years the applicant made six entries into and departures from Australia on temporary entry permits with short extensions, using his then correct name of David Paul Chuwen. On 23 May 1973 the applicant and his first wife were divorced. On 19 April 1974 the applicant remarried. There is a son, Mr Benjamin Michael Chuwen (now aged 24) and a daughter, Ms Sara Chuwen (now aged 17) of that marriage. On 11 and 12 July 1974, while in Australia, the applicant committed fifteen offences of false pretences and one of stealing. He was convicted for these offences on 6 April 1977 under the name Peter David Hall. It appears that these offences involved issuing false cheques. On 4 December 1974 a case officer of the Department of Labour and Immigration recommended that the applicant be granted permanent residence, but this did not occur. On 12 July 1974 the applicant (together with his second wife and their son) returned to the United Kingdom where they remained until returning to Australia on 15 March 1976. In 1977 the applicant suffered a severe back injury at work. Between October 1977 and August 1978 the applicant made two journeys from Australia to the United Kingdom, the first for a period of seven days and the second for a period of five weeks. In the meantime, in February 1978 he suffered a further injury to his back in a motor vehicle accident. In November 1979 the applicant received a compensation payment of $28,000. In April 1980 an officer of the Department of Immigration and Ethnic Affairs recommended that the applicant be granted resident status. On 12 February 1981 the Department decided to grant the applicant resident status subject to a medical examination. The Tribunal found (see paragraph 42 of its reasons) that the applicant was granted permanent resident status at some time between 12 February 1981 and 11 September 1981, and not before. The significance of that finding is that it formed the basis of the Tribunal’s express satisfaction that the deportable offence (to which I refer below) was therefore committed when he had been a permanent resident for less than ten years, thus making him liable for deportation under ss 200 and 201 of the Act. On 30 October 1984 the applicant was convicted of possession of cannabis, stealing and possession of a smoking implement and was fined $400. In 1985 the applicant and his second wife separated. They were divorced in 1996. On 15 July 1988 the applicant was convicted of breaking and entering. He was fined $500 and ordered to pay $750 compensation. On 21 July 1988 the applicant was convicted of possessing a smoking implement and fined $100. In October and November 1990 the applicant made two journeys to the United States of America and on his return imported into Australia a total of 16 ounces of cocaine. In February 1991 the applicant returned to the United States of America and arranged for 992 grams of cocaine to be sent by mail to accomplices in Sydney. The applicant was arrested upon his return to Australia on 26 April 1991. Shortly thereafter he disclosed to the authorities the importations of cocaine which he had carried out in October and November 1990. The authorities were not aware of those importations. On 25 May 1992 the applicant, having pleaded guilty, was convicted and sentenced in respect of two counts of importing prohibited imports and one count of conspiracy to supply a prohibited drug. On that date Judge Kinchington of the District Court of New South Wales imposed sentences resulting in a minimum term of nine years imprisonment commencing on 26 April 1991. On 13 September 1994, in response to the applicant’s written application, the Minister for Justice of Australia (for and on behalf of the Attorney-General) made an order under the Transfer of Prisoners Act 1983 (Cth) that the applicant be transferred from custody in New South Wales to custody in Western Australia. He was duly transferred in accordance with that order. On 31 March 1995 the respondent’s Criminal Deportation Section commenced the procedures for assessing whether the applicant should be deported. On 8 April 1997 a delegate of the respondent made the deportation order referred to above. On 5 June 1997 the applicant applied to the Tribunal for review of the deportation order. As mentioned above, the Tribunal decided, on 5 February 1998, to affirm the deportation order. On 5 March 1998 the applicant “appealed” in the sense used in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) to this Court against the Tribunal’s decision.

The Proceedings Before the Tribunal

The applicant’s case before the Tribunal had two bases.  They were set out, in summary, in the following paragraphs of a document described as “Applicant’s Preliminary Statement of Facts and Contentions” prepared by the applicant’s solicitor (who appeared as counsel before the Tribunal):

“17.  The Applicant says that on the available evidence the date on which he acquired permanent residence is unclear, but may well transpire to have been prior to October 1980.  If so, he cannot be the subject of a criminal deportation.

18.  In the alternative, if the Respondent is correct in asserting that he was granted permanent residence only in September 1981, then the Applicant says that the only appropriate decision in all the circumstances of this case and taking into account the criminal deportation policy of the Respondent, is to set aside a deportation order.”

The applicant’s case on the first issue identified above i.e. whether he had been a permanent resident in Australia for less than ten years, focused on a Department of Immigration stamp on an incoming passenger card. The stamp showed that the applicant was permitted to enter Australia on 14 August 1971. It was common ground that this was a Resident Entry Permit. The case before the Tribunal was fought over the significance or otherwise of that permit in the context of the applicant’s history, including in particular, his history of travelling to and from Australia. As his counsel told the Tribunal, the applicant (although he gave evidence) was unable to assist on the question when he became a permanent resident in Australia. The Appeal Papers show that there was a considerable body of documentary evidence from the respondent’s files relating to the applicant, which was before the Tribunal. The Tribunal expressly considered that part of the applicant’s case which was based on the Resident Entry Permit and the submissions put to it on behalf of the applicant. The Tribunal referred to the definition of “permanent resident” in s 204 of the Act and held as follows:

“40. Section 204 of the Act defines a permanent resident to be a person whose continued presence in Australia is not subject to any limitation as to time imposed by law but does not include, among other people, a person who was, during any period before 2 April 1984 an unlawful non-citizen within the meaning of this Act as in force at that time.

41.  The Applicant was not a permanent resident during the period from 1971 when he had marked on his entry card a “Type A” stamp because in the absence of an appropriate endorsement he was deemed to be a prohibited non-citizen by virtue of section 16.”

In my view, that was a conclusion of law.  In the application to this Court, there was no challenge to that conclusion.  The Tribunal continued in the following terms:

“42.  The Tribunal considered Mr Walker’s argument [Mr Walker was counsel for the applicant] that because of the respondent’s inability to find the record setting out the exact date when the applicant was granted permanent resident status, the respondent has failed to discharge its onus of proving that the ten year period specified in s.201(b) of the Act had not already expired before the deportable offence was committed. As discussed above, on all of the evidence the Tribunal is reasonably satisfied that the applicant was granted permanent residence at some time between 12 February 1981 and 11 September 1981 and not before. The Tribunal is satisfied that the deportable offence was therefore committed when he had been a permanent resident for less than ten years, making him liable for deportation under ss 200 and 201 of the Act.”

The Tribunal set out in its reasons the relevant provisions of ss 200 and 201 of the Act. It then stated that it “must also take into account guidelines issued by the [respondent]” and that it had therefore considered the respondent’s ministerial statement dated 24 December 1992 (“the Ministerial Statement”). The Tribunal set out paragraphs 9 to 12 of the Ministerial Statement in its reasons. The Tribunal’s further reasoning process was contained in seven paragraphs which I set out verbatim below:

“43.  In exercising the discretion entrusted to it, the Tribunal takes into account the very serious nature of the drug related convictions (as reflected in the length of the sentence imposed), which involved the importation and sale of large quantities of cocaine over a significant period.  In the first series of cocaine importation offences, the applicant imported a total of 16 ounces of cocaine at the behest (he says) of a dealer to whom he owed money.  He later imported significantly large quantities of cocaine (just shy of 1 kilogram) from America to sell on his own behalf, in order to obtain money for his own use.  The Tribunal also takes into account the applicant’s very long history of criminal activities and convictions since the age of eleven years.  Whilst sympathetic to the fact of the applicant’s disturbed childhood, the criminal history is long and persistent and involves crimes of dishonesty as well as driving offences, which displayed a serious lack of responsibility regarding the safety of others and repeated disregard of the law which had disqualified him from driving.

44.  The applicant gave evidence of possible alternatives to narcotics to control his pain.  These included: having a patch attached to the spine which directly administered pain killers to the damaged nerves; having an electrode attached to the back which could deliver shocks to the spine; or having a catheter inserted in his back, and administering pain killers directly to the spinal region.  These programs depended upon him being able to leave the prison three times each week and would depend upon his being chosen for a release program from prison.  He is, however, still dependent upon a drug of addiction, M S Conti, for the control of his back pain and he has a history of turning to other illegal drugs to control the pain.

45.  The applicant also has a history of turning to crimes of dishonesty in a financial crisis.  In his evidence in chief and again under cross examination, the applicant was given several opportunities by counsel to show that he realised the grave danger caused to others by his importation of cocaine for sale in Australia, and to express genuine remorse.  On each occasion, he failed to express this understanding and repeatedly reverted to how his conviction and sentence (which he said was too long) had affected him.  Only in cross examination did he admit his children and former wife may have suffered but did no more than to mention their names.  The Tribunal saw little sign that he felt remorse or regret for the victims who may have become addicted from taking the cocaine which he imported.

46.  In his favour the Tribunal notes the development of a very competent artistic skill whilst in prison and his commendable success in retaining a strong bond with his children.  It also takes into account his previous good record as a hard working provider for his family and that his drug addiction was originally associated with his back injury and initially arose from medication prescribed by his doctors.  It also notes that he had been a permanent resident for in excess of nine years before committing the deportable offence.

47.  The Tribunal has also taken into account the International Convention on the Rights of the Child as required by Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, as it applies to Sara, who, at sixteen years, is still a child. Mr Walker argues that it will be in her best interest if the deportation order is set aside now as it will mean that the applicant will qualify for work release, allowing Sara to spend more “quality time” with her father during the remaining important years of childhood.

48.  Although impressed by this submission, the Tribunal notes that, if the deportation order is affirmed, it will not take effect before the completion of the applicant’s sentence in 1999, at which time Sara will be 18 years of age and no longer a child.

49.  The Tribunal also considered Ben’s statement that he would live with his father and support his resolve to be free of illegal drugs as well as his thoughts about going into business with his father in ventures which would exploit the applicant’s artistic skills.  The Tribunal notes however that the father/son relationship has not had to face the test of actual cohabitation for many years and that the business ideas are still just that – unresearched and uncosted ideas.

50.  On balance the Tribunal finds that the seriousness of the applicant’s drug offences; the long criminal history of the applicant; his history of fraudulently gaining entry into Australia, showing no respect for Australia’s migration laws and the possibility that he may re-offend is such that to allow him to remain would be quite contrary to the existing Government policy in this regard, as set out in the Ministerial Guidelines dated 24 December 1992.  The Tribunal also notes that although the applicant would clearly prefer to remain in Australia, deportation to the United Kingdom, where he has close relatives, will not cause any special hardship, nor are there any other special reasons why government policy should not be applied in this case.”

Grounds of Appeal

Ground 1:  Exercise of the discretionary power of making a deportation order in accordance with a rule or policy without regard to the merits of the particular case

In his notice of appeal, the applicant particularised this ground in the following terms:

“The correspondence from the Department of Immigration, Local Government and Ethnic Affairs to the Attorney-General’s Department, dated 2 February 1993, inter alia, was not afforded due consideration.”

In his initial written submissions the applicant contended that the respondent had failed to take account of the fact that the applicant had previously been assessed as not liable for deportation.  He submitted that this assessment led to the sending of a letter dated 2 February 1993 from the respondent’s department to the Attorney-General’s Department.  On 7 January 1993 the Attorney-General’s Department had written to the respondent’s Department informing it of the applicant’s convictions on 25 May 1992 and the sentences which had been imposed upon him.  The penultimate paragraph of that letter read:

“Could you please advise whether the offender is liable to be deported upon his release from custody in Australia.”

The relevant portion of the letter dated 2 February 1993 from the respondent to the Attorney-General’s Department read:

“This offender has been assessed as not liable for deportation and this office has no further interest in the case.”

[I shall henceforth refer to this letter as the 2 February 1993 letter.]

That letter, so the applicant submitted, was sent because the respondent had assessed him as having been in Australia as a permanent resident for a period of ten years or more.  Although the applicant was represented by counsel before the Tribunal, he was not so represented at the hearing of this application.  He appeared for himself with assistance from his son.  In those circumstances, I shall treat the reference in Ground 1 to the respondent as being a reference to the Tribunal.  The applicant has not identified a rule or policy upon which the Tribunal is said to have based its decision.  I shall assume that the rules or policies referred to are those as set out in the Ministerial Statement which included the ministerial guidelines. 

There is nothing in the transcript of the proceedings before the Tribunal nor in the applicant’s written submissions to the Tribunal to suggest that the applicant’s counsel asked it to take into account the assessment made by the respondent in June 1993.  Apart from the fact that the Tribunal makes no reference to the letter in its reasons, there is no evidence that the Tribunal failed to take it into account.  The exchange of correspondence, which included the 2 February 1993 letter, was in evidence before the Tribunal.  Furthermore, I do not consider that this was a matter which the Tribunal was obliged to take into account when deciding whether to affirm the deportation order.  Its function was to review the matter and make the decision afresh.  So far as exercising the relevant power in accordance with the policy, to which I have referred above, and without regard to the merits of the particular case is concerned, a fair reading of the Tribunal’s reasons (and in particular the paragraphs which I have set out above) shows that the Tribunal did not fall into that error.  On the contrary, the Tribunal gave proper consideration to the merits.  In the last sentence of the final paragraph of its reasons, it can be seen to have considered whether government policy should not be applied to the instant case and gave its reasons for rejecting that proposition.  In his initial written submissions to this Court in relation to this ground, the applicant argued as follows:

“45. The applicant submits that the respondent failed to take account of the fact that the applicant had previously been assessed as not liable for deportation. The current deportation order arises out of the same set of material facts. The applicant submits that the representation was made stating that the applicant was not liable for deportation in light of the respondent’s assessment of his residency status. It is submitted that the reason why the respondent assessed that the applicant would not be liable for deportation was that the applicant did not qualify as a permanent resident of less than 10 years (as per section 201 of the Migration Act).

46.  The respondent should have had proper regard to this assessment.”

In my view, by these submissions, the applicant is seeking to re-agitate a factual issue, not a matter of law.  In essence, it amounts to an argument that the respondent had, as at 2 February 1993, assessed the applicant as having been a permanent resident in Australia for ten or more years and that that assessment was a piece of evidence to which the Tribunal should have given weight when deciding that issue.  In my opinion, the argument does not raise a question of law. 

Insofar as the written submission was directed to the second issue (i.e. the exercise of a discretion to deport), I have dealt with that point above.  I do not consider that this ground has been made out.

Ground 2:  Estoppel

The applicant contended that the Tribunal erred in law “… when it failed to consider whether the Department of Immigration could be estopped from issuing the Deportation Order.”  The applicant contended that the estoppel arose from a representation made by the respondent in the 2 February 1993 letter. 

The applicant submitted that an estoppel arose from the representation contained in that letter, to the effect that he would not be deported, because he had acted in reliance upon it by:

• establishing his family in Western Australia in anticipation of his eventual release from custody; and

• not raising the possibility that he might be liable for deportation when he appealed (to the Court of Criminal Appeal in New South Wales) against the severity of his sentence, which might have led to him receiving a shorter custodial sentence and earlier eligibility for parole.

There are several reasons why, in my opinion, this ground should be rejected.  First, contrary to the applicant’s written and oral submissions, the issue of estoppel was not raised by the applicant before the Tribunal.  At the hearing, I asked the applicant how it had been raised.  At that stage, only part of the transcript of the proceedings before the Tribunal was available.  Once the applicant and the respondent had presented their arguments, I adjourned the hearing on the basis that (as the respondent had agreed) the respondent would obtain those portions of the transcript in which the applicant contended the issue had been raised.  I made directions for the service of those portions of the transcript on the applicant and for further submissions to be made.  I have examined the relevant portions of the transcript and the applicant’s preliminary statement of facts and contentions filed at the Tribunal.  I am quite satisfied that the issue of estoppel based, as it is, on the 2 February 1993 letter, was not raised by the applicant before the Tribunal.  He was represented by counsel before the Tribunal and he can have no complaint against the Tribunal in these circumstances.  In his submission that this matter was raised before the Tribunal, the applicant refers to pages 1-12 of the Appeal Papers.  Those documents comprise his application to the Tribunal for review and documents annexed to that application.  They include a three-page typed letter dated 3 June 1997 from the applicant to the Tribunal.  In it, the applicant mentions a letter as having been sent by the Immigration Department to the judge who sentenced him.  He complained, in effect, that had the Immigration Department notified the sentencing judge [he must have been referring to Judge Kinchington who sentenced him on 25 May 1992, because he refers in the letter to the sentence having been received in June 1992 which, in the circumstances, is close enough] of the possibility of deportation then “… the sentence structure would have been proportionately less.”  The letter upon which the applicant seeks to rely in the present proceedings is of course dated 2 February 1993, some eight months later.  In his submissions to this Court, the applicant put his argument on a different basis which sought to accommodate this inconsistency.  That was by reference to an additional detriment, said to have been suffered by him, by relying on the 2 February 1993 letter and not raising the possibility in the Court of Criminal Appeal, that he might be liable to deportation.  The applicant, in his submissions, said that he discovered the letter of 2 February 1993 when preparing for that appeal against sentence.  The problem with this submission is that it is not based on any evidence before the Tribunal and is in fact inconsistent with the facts as stated in his letter dated 3 June 1997 to the Tribunal.  Furthermore, there is no evidence before the Tribunal that the applicant had acted to his detriment in the manner for which he contended in this Court and which I have summarised above.

In his additional written submissions the applicant contended that the issue of estoppel should be considered as having been before the Tribunal.  First, the applicant claimed that in his application to the Tribunal he had raised the fact that a representation had been made by the respondent on 2 February 1993 to the effect that he had been assessed as not liable for deportation.  That is simply not so.  The letter referred to by the applicant in his application was a letter said to have been sent to the sentencing judge in mid 1992.  This is confirmed by reference to the file notes upon which the applicant relied in his additional written submissions.

Next the applicant submitted that it was sufficient for the matter of estoppel to be considered as having been before the Tribunal, notwithstanding that it was not raised in any submissions to it.  The applicant relied on Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 194-195 and Adamou v Director-General of Social Security (1985) 3 AAR 321 at 326. But Kuswardana was a very different case to the present matter.  In Kuswardana the immigrant status of the proposed deportee was one of the essential statutory preconditions for the application of s 13 of the Migration Act (a predecessor of the present deportation provisions).  Bowen CJ (at 195) said:

“… there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties’ submissions.  In these circumstances it was an error of law not to consider and decide the issue of immigrant status.”

Likewise in Adamou the question of whether there were job opportunities which would have been available to a person in Mr Adamou’s position can be seen to have been fundamental to deciding whether he was permanently incapacitated for work.  The same can be said in relation to Ferriday v Repatriation Commission (1996) 42 ALD 526. It is obvious that the Tribunal gave very careful consideration, in this matter, to the applicant’s immigrant status. In my view, that distinguishes those cases from the present matter. It is true, as the applicant points out in his additional written submissions, that the Tribunal is at liberty to inform itself of any matter and in any manner that it thinks appropriate. However, that does not mean, in my opinion, that the Tribunal was obliged to consider the relevance of the alleged representation to an argument based on estoppel which was never put to it. That issue was not a precondition to the exercise of the Tribunal’s discretion and nor was it, in my view, sufficiently fundamental to require it to make its own enquiries. This is particularly so, given that the applicant was represented before the Tribunal by counsel.

Finally, in his additional written submissions, the applicant contended that even if the matter of estoppel is considered as not being before the Tribunal, there was no absolute authority that a new issue cannot be raised in this Court in an appeal under s 44(1) of the Administrative Appeals Tribunal Act. For that proposition he relied on Kuswardana; Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 30 ALD 455 at 459; Australian Fisheries Management Authority v P W Adams Pty Ltd (1995) 39 ALD 481 and Ferriday at 532. In Tefonu, Beazley J allowed a matter to be raised because (see 461) it did not involve the Court considering factual matters which were not canvassed before the Tribunal and nor did it require the Court to draw inferences which the Tribunal was not asked to draw.  There was another reason not here relevant.  Those circumstances are, in my opinion, in marked contrast to the present matter.  In Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726 at 728 Gummow J observed:

“This is not how the case was put before the Tribunal.  There must be some difficulty in such circumstances in finding as “error of law” in the failure in the Tribunal to make a finding first urged in this court.” 

As Beazley J noted in Tefonu, Raptis was cited with approval by the Full Court of this Court in Secretary, Department of Social Security v Cooper (1990) 21 ALD 155. It was also cited with approval in Ferriday at 532.

In my opinion, justice does not demand an opportunity for the applicant to raise in this Court matters of fact going to any representation, reliance and detriment.  The demands of justice would appear to be central to the question whether the applicant should be permitted to take that course: Secretary, Department of Social Security v Salvona (1989) 18 ALD 289 at 294.

The applicant submitted that the issue of his resident status was a central issue before the Tribunal and accordingly proper regard should have been given to the representation made by the Department of Immigration in the 2 February 1993 letter. I reject that argument because although the (legal) question of the applicant’s resident status was a central issue before the Tribunal, it related solely to the question of the application of s 200 and 201 of the Migration Act and whether the applicant had been in Australia as a permanent resident for a period of less than ten years.  The estoppel argument which the applicant now seeks to raise is a different, separate matter.

In those circumstances, I do not think that it is necessary to deal at length with the applicant’s legal submissions on the matter of estoppel.  However, in view of the extensive written submissions filed by the applicant I shall deal with the matter very briefly.  The applicant acknowledges that authorities such as Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 678; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17 and Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 reflect what he described as “the traditional view” that estoppel by representation cannot interfere with the exercise of a statutory power or the performance of a statutory duty by an administrative body. The applicant contended that the Full Court of this Court in Kurtovic may have arrived at a different decision, had it been of the opinion that the representation in that case (revocation of a deportation order on condition that the respondent not commit any further offences) was in fact an undertaking upon which the respondent had relied to his detriment.  He sought to distinguish Kurtovic on the grounds that in the present case the representation did amount to an undertaking.  I disagree with the applicant’s assessment of Kurtovic.  In that case Gummow J held (at 208-211) that there could be no estoppel in law where a statutory discretion to deport was involved.  Ryan J agreed (at 201) with the application of that principle in that case.  Neaves J agreed generally with their Honours’ reasons. 

The applicant submitted that there was still room for estoppel to apply, relying on the well-known passage from Mason CJ’s reasons in Quin at 18:

“What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest.  And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion.”

Although, given the factual circumstances of this matter, it is not necessary for me to decide the point, I consider that, were it necessary, I would be bound by the decision of the Full Court of this Court in Kurtovic to reject the applicant’s argument.  If I am wrong in that assessment, I would reject estoppel as being inapplicable on any version of the applicant’s case.  There was simply no evidence that the applicant became aware of the alleged representation before he acted, on his case, to his detriment.

Ground 3:

This ground was expressed as being that the applicant had a legitimate expectation that the respondent’s representation in the 2 February 1993 letter was correct and final.  The applicant expanded this ground with the following particular:

“If a public body has made a representation to a specific individual that a particular policy will be followed before any change in policy takes place, then the individual will be entitled to insist that this policy is pursued in relation to the instant case, provided that the implementation does not conflict with the authority’s statutory duty and/or the overriding public interest requires otherwise.”

In his written submissions, the applicant contended that:

• he had a legitimate expectation that he would not be deported, being an expectation arising from the assessment made by the respondent in February 1993;

• a legitimate expectation may be engendered by a representation, undertaking or policy as to the exercise of a discretionary power and “such an expectation is entitled to procedural protection”;

• such legitimate expectation was “… entitled to substantive protection” because to do so would not necessarily obstruct “the formulation of any government policy”; and

• substantive protection could be afforded in the present case because the applicant was given a specific representation that he would not be deported.  This was said to be different to estoppel on the basis of a representation made in a publication on government policy.

The applicant relied upon the passage in Mason CJ’s reasons in Quin (at 23) where his Honour referred to the possibility that there may be some cases in which substantive protection can be afforded and ordered by the Court in respect of legitimate expectations.

The applicant also relied upon the decision of the Court of Appeal in R v Secretary of State for the Home Department; Ex parte Khan [1985] 1 All ER 40. The applicant’s reliance on Khan as a basis for what he describes as “substantive protection” is misplaced.  Khan is authority for the uncontroversial proposition that where the Secretary of State had undertaken to follow certain procedures in relation to an application for a foreign child to enter the United Kingdom for the purposes of adoption, a reasonable expectation arose that he would do so.  He could not apply different criteria without first giving any recipient of the circular containing that representation full opportunity of making representations why in his particular case different procedures ought not to be followed. 

Assuming (but without deciding) for present purposes, that the applicant had any legitimate expectation arising out of the 2 February 1993 letter, I am not persuaded that this would have given the applicant an entitlement to anything other than procedural fairness of the type reflected in Khan or in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291-292, 302 and 313. The applicant submitted that his case was different because here there was a specific representation to him that he would not be deported. I was not taken to any authority which would recognise such a distinction. As a matter of principle, I apply the principles explained in Khan and Teoh despite the diverse sources of the reasonable expectations in those cases.  In fact it can be seen that the applicant was accorded procedural fairness.  From the time when he received the deportation notice he was aware that the respondent no longer held the view expressed in the 2 February 1993 letter and intended to deport him.  He was given every opportunity in the Tribunal to persuade the decision-maker against taking that course.  There was no other allegation of procedural unfairness. 

The applicant relied (see para 60 of his outline of submissions) upon the Privy Council authority of Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, for his argument that a legitimate expectation gave rise to substantive rights as contrasted with merely procedural rights. In my view, that authority is relevantly to the same effect as the principle explained in Teoh.  In that case, the Board identified the respondent’s entitlement as being an opportunity to state his case.  An announcement by a senior immigration officer of a policy that each illegal entrant from Macau would be interviewed and his case “treated on its merits” was held to have given rise to a reasonable expectation of such a hearing.  The Privy Council’s advice was that a removal order made by the applicant should be quashed, without prejudice to the applicant’s right to make a fresh removal order after holding a fair inquiry at which the applicant would be given an opportunity to make such representations as he might see fit as to why he should not be removed. 

In any event, for the reasons which I have given above in relation to the estoppel argument, the Tribunal cannot be said to have erred in law in failing to consider this point.  It was simply not put to the Tribunal.  Furthermore, there was no factual foundation for the alleged specific representation having been made to the applicant.

Ground 4:  Relevant Considerations

In his notice of appeal, the applicant set out the following under the heading of this ground:

“The Respondent failed to take a relevant consideration into account in the exercise of its power.

Namely, the correspondence from the Department of Immigration, Local Government and Ethnic Affairs to the Attorney-General’s Department dated 2 February 1993.”

The authorities establish that this ground of review is not made out unless the relevant consideration is one which the decision-maker was bound to take into account.  No basis has been demonstrated, in my opinion, for the proposition that the 2 February 1993 letter was a factor which the Tribunal was bound to take into consideration.  This ground has not been made out.

Ground 5:

Ground 5 was expressed in these terms:

“The applicant believes that due consideration to the welfare of children under the age of 18 years was not given.”

In his written submissions the applicant contended that the Tribunal had failed to take into account the effect of the deportation order on any children, relying upon Teoh and the Convention on the Rights of the Child.  The applicant referred to both his son Ben (aged 24) and his daughter Sara (born on 23 July 1981 and now aged 17) as being the relevant children.  Paragraph 1 of Article 1 of the Convention defines children as being every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.  Accordingly the applicant’s son is no longer relevantly a child.  I think it should also be borne in mind (when assessing the Tribunal’s reasons in this regard) that the deportation order will not take effect until the completion of the applicant’s sentence on 25 April 2000 [the Tribunal took this date to be 1999].

The applicant relied on the fact that he would be eligible for work release in October 1998.  He said that unless the deportation order were set aside now he would not qualify for work release and would not be able to spend more time with his daughter.  This would, so it was put, deny her the first opportunity in six years to have contact with her father outside prison.  The applicant acknowledges that the Tribunal had regard to this submission, but said that it made an error when it concluded (at para 48 of its reasons) that if the deportation order were affirmed, it would not take effect before the completion of the applicant’s sentence in 1999, at which time Sara would be 18 years of age and no longer a child.  In terms of whether the Tribunal can be seen to have made its decision without treating the best interests of Sara as a primary consideration, I have regard to the following:

• it heard oral evidence from Sara (in addition to hearing oral evidence from her mother, the applicant and her brother);

• it had before it a written statement from Sara, her mother and her brother;

• at paragraph 30 of its reasons the Tribunal said:

“The applicant’s daughter, Sara, aged 16 years, also gave genuine and considered evidence expressing great love for her father and her emotional need to spend time with him, as her father, in natural home surroundings which she had not been able to do for a long time”;

• it referred specifically to the Convention on the Rights of the Child and to Teoh’s case and the work release point referred to above; and

• it said it was “impressed by this submission”.

If any obligation arose under the Convention, then it required the Tribunal either to approach the matter on the footing that the interests of Sara were a primary consideration which, as Toohey J pointed out in Teoh at 303, would not necessarily require a decision in favour of the applicant, or to give the applicant notice and an adequate opportunity of presenting a case against taking a course whereby Sara’s interests would not be a primary consideration.

My assessment is that the Tribunal did not approach the matter on the footing that the interests of Sara were a primary consideration.  What it did was to weigh up the impact of the denial of work release upon her and then discount that factor wholly on the basis that the deportation order would not take effect before Sara became 18 years of age.  In my view, it was entitled to approach the matter on that footing.

It must be borne in mind that the decision under review is the respondent’s decision to deport the applicant from Australia.  In terms of the respondent’s obligations under the Migration Act, that is, in my view, the scope of the relevant decision i.e. removal of the applicant from Australia at the expiry of his period in custody.  The decision by the Western Australian prison authorities on questions such as work release are matters which are consequential upon the service of the deportation order and precede the actual deportation.  The applicant’s complaint is, in effect, that the deportation order was made too early, not that it should never have been made at all.  This reflects still further reason why this ground should be rejected.  It relates to causation.  Taking a practical commonsense approach to causation, as discussed in March v Stramare(E. & M.H.) Pty Ltd (1991) 171 CLR 506, it is not the operation of the deportation order which denies the applicant work release, it is the decision to that effect by the Western Australian prison authorities, albeit that those authorities may take into account and attach weight to the fact that the applicant is to be deported at the end of his sentence.

In my view, there is no substance to this ground.

Conclusion

For the foregoing reasons the application will be dismissed with costs.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment of Justice Carr

Associate:

Dated:            23 October 1998

The Applicant appeared in person with assistance from his son, Mr B M Chuwen
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 September 1998
Date of Judgment:	23 October 1998