Paull v Minister for Immigration and Multicultural Affairs

[1999] FCA 260

FEDERAL COURT OF AUSTRALIA

Paull v Minister for Immigration & Multicultural Affairs [1999] FCA 260

MIGRATION – appeal against decision of trial judge and Tribunal upholding deportation order pursuant to s 200 of the Migration Act1958 (Cth) – whether decision that appellant had less than 10 years’ permanent residence at the time of conviction involved an error of law – role of the Court in reviewing decisions of the Tribunal

Migration Act1958 (Cth): s 200, s 201

DAVID PAULL v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
WG 170 OF 1998

JUDGES: BLACK CJ, LEE & MERKEL JJ
DATE: 5 MARCH 1999

PLACE: PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 170 OF 1998

BETWEEN:	DAVID PAULL Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	BLACK CJ, LEE & MERKEL JJ
DATE OF ORDER:	5 MARCH 1999
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed

1. The Appellant 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 170 OF 1998

BETWEEN:	DAVID PAULL Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES:	BLACK CJ, LEE & MERKEL JJ
DATE:	5 MARCH 1999
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:  

1. This is an appeal from a decision of Carr J dismissing an appeal from a decision of the Administrative Appeals Tribunal (the “Tribunal”) which affirmed the decision of the delegate of the Minister for Immigration & Multicultural Affairs to deport the appellant, Mr Paull, pursuant to s 200 of the Migration Act1958 (Cth). The relevant facts are set out in the reasons for judgment of Carr J and it is not necessary for us to repeat them here.

2. It must be said at the outset that the Court's function in cases on appeal from the Tribunal is a strictly limited one.  The review of a deportation decision is made by the Tribunal and it is the Tribunal that has the function of finding the facts and, having found the facts, of exercising the discretion that the Migration Act provides for.  An appeal lies to this Court from the Tribunal’s decision on a question of law only.  This Court does not review the merits of the decision to deport, and nor, of course, does it exercise the discretion that it is the function of the Tribunal to exercise.

3. We have read with care the decision of Carr J and are not persuaded that his decision is attended by any error of law.  We consider that for the reasons that his Honour gave he was correct in dismissing the appeal to this Court.  We have ourselves examined the evidence about the length of Mr Paull's period of permanent residence in Australia and we do not consider that there was any basis upon which it can be said that the Tribunal’s finding that he had less than 10 years' permanent residence, even taking the most favourable view of the matter, was attended by any error of law.

4. Understandably, Mr Paull placed emphasis on a letter dated 2 February 1993 from the Department of Immigration to the Attorney-General's Department.  That letter stated unequivocally that Mr Paull had been assessed as not liable for deportation.  On the evidence before it, however, the Tribunal decided, as in our view it was entitled to do, that the opinion expressed in that letter, for it was no more than an opinion, was not well-founded.

5. While we certainly do not suggest that any material was withheld from the AAT, in the light of the quite categoric nature of the statement in the letter of 2 February 1993 and the apparent authority with which it was written, it might be thought prudent, before any actual deportation is effected, that the Minister or his delegate satisfy himself, or herself in the case of the delegate, that there was no material that was relied upon in the letter that somehow did not get placed before the Administrative Appeals Tribunal. 

6. The appeal must be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the reasons for judgment herein of the Court.

Associate:

Dated:             5 March 1999

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 March 1999
Date of Judgment:	5 March 1999