Skaf, S.S. v Minister for Immigration Local Government & Ethnic Affairs

[1990] FCA 538

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JUDGMENT No. ......--.. /- 53E: 70

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LIMITED DISTRIBUTION I

IN THE FEDERAL COURT OF AUSTRALIA) i

No. NG531 of 1990

NEW SOUTH WALES DISTRICT REGISTRY~

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GENERAL DIVISION 1

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BETWEEN: SAEIIRA SAID S W I

Appellant

1.

AND :  M I N I S T E R F O R

IMMIGRATION. LOCAL	l
GOVERNMENT AND ETHNIC
AFFAIRS	I ,
1 ~
Respondent	l -

CORAM:	WILCOX, GUMMOW & FOSTER JJ
PLACE :	SYDNEY
DATE :	14 SEPTEMBER 1990

MINUTES OF ORDER

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THE COURT ORDERS THAT:

1.	The appeal be dismissed.	I ,
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2.	The appellant pay to the respondent his costs of the	;
appeal.	i
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Note:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. [See also Order 37 rule 2(3)].

REQISTRY

RECEIVED

FEDERAL COURT OF

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

No. G531 of 1990

NEW SOUTH WALES DISTRICT REGISTRY )	1
1
GENERAL DIVISION	1

BETWEEN:	SAMIRA SAID SKAF Appellant
AND :	MINISTER FOR
Respondent

CORAM:	WILCOX, GUMMOW, FOSTER JJ
PLACE :	SYDNEY
DATE :	14 SEPTEMBER 1990

WILCOX, GUMMOW h POSTER JJ:

This is an appeal from a decision of a single Judge

of the Court dismissing an appeal brought to the Court from a

decision of the Administrative Appeals Tribunal. The

Administrative Appeals Tribunal was called upon to review a decision made by the respondent to deport the appellant from

Australia. It is not necessary to set out the facts of the

matter. They are adequately summarised in the decision

appealed against.

On behalf of the appellant, three submissions have

been put today. Firstly, it was said that the Tribunal

incorrectly stated in its reasons for decision that there was

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no evidence that any hardship would be occasioned by the

I	proposed deportation.
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It seems to us that this is not a correct

!	understanding of what was said by the Tribunal. The reference
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i	is to para.34 of the reasons for decision. In that paragraph the Tribunal dealt with the position of the child of the appellant, and also of Mr Mousallem, in the event of the deportation occurring. Toward the end of the paragraph the
Tribunal said:  "There is no evidence of any other hardship to
any other person."

The Tribunal then went on to refer to the attitude

of various other people; namely, the husband of the appellant,
the appellant's mother, the appellant's son by her first
marriage and the appellant's father. It was in relation to

those four people that the Tribunal used the words "there is

no evidence of any other hardship". It is not suggested on

behalf of the appellant that there was evidence of any

hardship to any of those persons.

There was certainly material before the Tribunal

indicating a considerable degree of disturbance to the lives

of both the child, Dib, and Mr Mousallem if the deportation

was carried out. The Tribunal could not but have been acutely

aware of that matter, as both the appellant and M r Mousallem

gave evidence before it. ~urthermore,	para. 34 deals with that
matter.	It might fairly be said, as indeed the primary Judge
d i d say,	t h a t t he trcatment of those mat ters i n t h e reasons

f o r decis ion was scanty and t h a t , as f indings of f a c t , t h e

Tribunal 's	statements a r e open	t o t h e c r i t i c i s m t h a t they
unders ta te t h e e f f e c t of	t h e depor ta t ion on those two	people.

W e would r e spec t fu l ly adopt those c r i t i c i s m s of t h e primary

Judge.	But t h e problem confront ing t h e appel lant i s t h a t t he
only r i g h t of appeal which she has from t h e decision of	t h e

Tribunal i s on a question of l a w . She has t o show t h a t , i n

reaching t h e conclusions it did, t h e Tribunal f e l l i n t o an

e r r o r of law, a s d i s t i n c t from an e r r o r of f a c t . Once it is

conceded t h a t these matters w e r e considered, t he weight t o be

given t o them a r e matters of f a c t f o r t h e Tribunal. However

v a l i d t h e c r i t i c i s m s t h a t were made by t h e primary Judge, and

with which w e associa te ourselves,	t h e y do not demonstrate any
e r r o r of	law.

The second proposi t ion pu t -on behalf of t h e

appe l lan t was t h a t t h e decis ion reached by t h e Tribunal was

unreasonable, i n t h e Wednesburv sense; t h a t i s t o say, t h a t it

was a conclusion which no reasonable decis ion maker could have

made. The appel lant d id not a t t a c k t h e ul t imate decision m

=, i n t h e sense t h a t her counsel d i d not submit t h a t no

reasonable person could have reached a decision adverse t o

her. What was submitted was t h a t t h e ul t imate decision was

unreasonable because, i n the course of making it, t h e Tribunal
f a i l e d t o give an appropriate degree of weight t o matters i n
her favour, namely the matters of hardship.

It seems to us that this is simply a submission that

the Tribunal erred in not giving enough weight to hardship. decision is unreasonable, in the Wednesburv sense, because of the lack of weight given to one element of the evidentiary material by the decision maker. To so hold would be to blur significantly the distinction between an error of law and an

error of fact; and, in effect, to put the courts in the -

position of reviewing factual findings under the guise of
considering whether there is an error of law. We do not think
that the Wednesburv principle sanctions that course.

The third submission which was made on behalf of the appellant was that the Tribunal misused the Ministerial policy regarding criminal deportation. We refer to a policy which

was announced by the then Minister on 4 May 1983. It was accepted on behalf of the appellant that the Tribunal was

entitled to have regard to the policy. But the complaint was

that, in considering the matter of the appellant's family ties

and the effect of her deportation on those ties, the Tribunal

bound itself entirely to the language of the policy. the Tribunal's decision which is in this form:

"The fact that she has lived with an Australian
citizen for 12 months is hardly sufficient to
establish significant family ties in this
country as that concept is understood in
Ministerial policy." .

This sentence was criticised by the primary Judge as

understating the position and, once again, we are willing to adopt that criticism. But it seems to us to be erroneous to say that the Tribunal considered the extent of the appellant's

family ties only in the straight-jacket, as it were, of the

criminal deportation policy. The matter was discussed at

large, and at some length, in the reasons for the decision. the elements in the policy as a guide to the matters relevant for its consideration. However, when one reads the reasons as a whole, it cannot be said that the Tribunal was unaware of the nature of the appellant's family ties and their significance to her life, both her ties in Australia and those which were in Lebanon.

In our view, none of the matters argued on behalf of the appellant were made out. We do not see any error of law

in the way in which the Tribunal approached its task.	The
appeal ought to be dismissed with costs.
I certify this and the four (4)

preceding pages to be a true copy of
the Reasons for Judgment of

their Honours Justices Wilcox, Gummow and Foster.

Associate: //	,M #GJ&~ .
Date:	14 September 19 0
Counsel for the Appellant:	M J Neil, QC and
S Burchett
Solicitors for the Appellant:	John Sarroff & Company
Counsel for the Respondent:	G A Flick (Dr)
Solicitors for the Respondent:	Australian Government Solicitor
Date(s) of hearing:	14 September 1990