Smith, Richard Wayne v Minister of State for the Department of Immigration and Ethnic Affairs

[1984] FCA 104

Re: RICHARD WAYNE SMITH; KATHLEEN SMITH; ASHLEY CAROLINE SMITH, an infant who
brings this claim through her next friend and mother
And: THE HONOURABLE JOHN STEWART WEST, Minister of State for the Department of
Immigration and Ethnic Affairs and THE COMMONWEALTH OF AUSTRALIA
No. G91 of 1984
53 ALR 551
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Lockhart J.
Sheppard J.

CATCHWORDS

Administrative Law - application for judicial review - prohibited immigrants - decision to deport taken by Delegate to Minister - whether breach of rules of natural justice - whether rules of natural justice apply to decisions of this nature - whether Delegate took into account all the relevant facts - whether para. 5(1)(a) of Administrative Decisions (Judicial Review) Act imports a legal obligation to observe the rules of natural justice into Commonwealth law.

Administrative Decisions (Judicial Review) Act 1977 para. 5(1)(a)

Migration Act 1958, s. 18

HEARING

SYDNEY

#DATE 4:4:1984

ORDER

1. The appeal be dismissed.

2. The appellants pay to the respondents their costs of the appeal.

3. The stay granted by the Hon. Mr Justice Morling on 19 March 1984 terminate on 13 April 1984.

JUDGE1

I will ask Mr Justice Lockhart to give the first judgment.

JUDGE2

This is an appeal from a judgment of a judge of this Court (Morling J.) given on 14 March 1984 dismissing an application by the appellants, Richard Wayne Smith, Kathleen Smith and Ashley Caroline Smith under the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act") for orders of review of decisions made by the Delegate of the Minister for Immigration and Ethnic Affairs to deport Mr. and Mrs. Smith.

Mr. and Mrs. Smith are husband and wife. They are United States citizens. They have three children, two of whom, a son, Brian, aged 9 and a daughter, Erin, aged six, are also United States citizens. The third child is the third appellant. She is a daughter, Ashley, who is five months old. Mr. and Mrs. Smith entered Australia with their two older children on 18 January 1983. Mr. and Mrs. Smith were granted temporary entry permits to remain here for a period of six months. No further entry permits were granted to them.

On the expiration of their entry permits they both became prohibited immigrants; sub-s. 7(3) of the Migration Act 1958. Soon after their arrival in this country Mr. and Mrs. Smith committed criminal offences involving the fraudulent use of credit cards. Mr. Smith was arrested in Sydney on 3 February 1983, two weeks after entry into Australia, and charged with an offence involving deception. He was granted bail, but he breached bail by travelling to Melbourne where he and Mrs. Smith were convicted on 30 May 1983 of four charges involving deception, attempted deception, and the possession of false passports.

They were then extradited to Sydney where they were subsequently convicted of the offence of obtaining financial advantage by deception, and on 22 August 1983 each was sentenced to two years imprisonment.

If he remains in Australia, Mr. Smith may face proceedings for extradition to Queensland relating to the alleged passing of certain cheques and another matter. At least two criminal charges are pending against Mrs. Smith in the United States of America. She was indicted in December 1982 on a charge of grand larceny, and warrants for her arrest were issued that month. There is evidence that upon her return to the United States she may be arrested.

Whilst in custody Mrs. Smith gave birth to her daughter, Ashley. She was released from custody on 27 February 1984. The children, Brian and Erin, were kept at the Junior Red Cross home at Randwick. The Delegate of the Minister made orders for the deportation of Mr. and Mrs. Smith on 30 September 1983. Mrs. Smith was described in a recital to the deportation order made against her as:

"Kathleen Smith, also known as Karen Muller, also known as Karen Collison, also known as Karen Muller Doll, and by other aliases."

She asserted to the Department of Immigration and Ethnic Affairs that one of the recited aliases had never been used by her. To remove any doubt concerning the validity of the deportation order the Delegate of the Minister made a fresh deportation order against Mrs. Smith on 16 November 1983.

On 2 March 1984 Mr. and Mrs. Smith and their daughter Ashley, suing by Mrs. Smith as her next friend, commenced proceedings in this Court under the Judicial Review Act to review the Delegate's decision to deport Mr. and Mrs. Smith.

Two grounds were argued before the learned primary Judge to support the claim that the deportation orders are invalid.

The first ground was that a breach of the rules of natural justice was said to have occurred in connection with the making of the deportation orders. His Honour found that this ground of attack failed for two reasons. First, because in his view it is now settled law in Australia that the rules of natural justice do not apply to the exercise of the power under s. 18 of the Migration Act to deport a prohibited immigrant. His Honour discussed the judgments of the High Court in Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396; and The Queen v. MacKellar; Ex Parte Ratu (1977) 137 C.L.R. 461; and the judgment of a Full Court of this Court in Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 A.L.R. 341.

Secondly, his Honour found that, had he held a different view on the first question, he would have been of the opinion that the Minister's Delegate did in fact observe the rules of natural justice in this case. His Honour said, in his reasons for judgment:

"There is much authority for the proposition that what is required by rules of natural justice, when they are applicable, is that the decision-maker should act fairly. What is fair will vary from case to case."

After a reference to Salemi's Case, his Honour continued:

"On the facts of this case the Minister's delegate ensured that both applicants were interviewed before he made his decision. Not only were they interviewed, but statements were obtained from them. Further, a letter from their solicitor was before the delegate when he made his decision. In addition, yet another letter from the male applicant was before him, in which Mr. Smith pressed the Minister to deport him.

In these circumstances it is difficult to see how any attack can be made on the fairness with which the Minister considered whether he should make the deportation orders. Therefore, even if I had been of the opinion that the rules of natural justice had applied, I would have found that those rules had been observed."

Notwithstanding the full and careful argument that we have heard from counsel for the appellants in this appeal, in my opinion the rules of natural justice were not required to be observed in relation to the deportation orders made by the Minister's Delegate against Mr. and Mrs. Smith under s. 18.

Even if I took the view, which I do not, that the rules of natural justice did apply in this case, I would agree with the conclusion of the primary Judge that they were in fact observed.

The second ground argued before Morling J. was that the making of the deportation orders was an improper exercise of the power conferred by s. 18 because the Minister's Delegate failed to take into account the fact that the child, Ashley, having been born in Australia, was an Australian citizen, and failed to take into account her welfare. His Honour rejected this argument and said:

"I have referred already to the contents of the report that the delegate had before him and to Mr. Terracini's able argument that the report did not in terms refer to the fact that the child had been born in Australia and was therefore an Australian citizen. But for the reasons which I have already given I am satisfied that the delegate did not ignore the fact that the child had been born in Australia. On the contrary, I am satisfied he must have taken that circumstance into consideration.

Further, I am not persuaded that the Minister's delegate failed to take into account the welfare of the child. Indeed, there is much to indicate that he was concerned about the welfare of both the five months old child and also the two older children. Reference is made in the departmental officer's report to steps taken to place the two elder children in the care of a charitable organization. No doubt the fact that no special reference is made to the care of the infant child was occasioned by a knowledge that she was only two weeks old and in the care of her mother. Indeed, it is said in the report that Mrs. Smith was in a half-way house, having been discharged from Mullawa Detention Centre prior to the birth of her child. It is clear to me that the delegate did have in front of him, and did consider, many matters concerning the welfare of the child."

Those findings of his Honour were challenged before us.

I am satisfied that his Honour did not fall into error in expressing those views and in rejecting this second ground of attack on the deportation orders. I agree with the primary Judge that the Minister's Delegate must have had regard to the fact that the child, Ashley, was born in Australia and that she is an Australian citizen. Although no specific reference is made in the Departmental report to the Delegate to the fact that she is an Australian citizen, reference is made twice to the fact that she was born here. I do not accept that the Delegate did not place any, or sufficient, emphasis on the fact that she was an Australian citizen and that he did not have regard to that fact when making his decision to deport.

As has been said by Judges of this Court more than once, it is not legitimate to scrutinise reasons for decisions of government officers too finely or precisely. Such reasons should be studied carefully but sensibly, and not zealously in the pursuit of error. I would add that I have, myself, taken into account, in considering this appeal, the fact that the child, Ashley, was born in this country and is an Australian citizen. Her rights, interests and prospects may be affected by the deportation of her parents, but I have no doubt that this consideration was present to the mind of the Delegate and his Honour. It is a matter which must be considered and weighed together with all other relevant considerations in the case, as I have no doubt it was.

Finally, I would refer to an argument advanced by counsel for the appellants based upon para. 5(1)(a) of the Judicial Review Act which relevantly provides:

"5(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:-
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision."

A similar provision exists in para. 6(1)(a) of the Judicial Review Act relating to the review of conduct itself related to the making of decisions. The submission was that para. 5(1)(a) itself imports into other Commonwealth law, including statutes, a requirement that the rules of natural justice must be observed in connection with the making of relevant decisions, and that the paragraph itself is a source of that legal obligation.

I reject this argument. A breach of the rules of natural justice is a condition precedent to the right of a person aggrieved by a decision to which the Judicial Review Act applies to seek an order of review from this Court. It does not import the far reaching requirement contended for by counsel for the appellants. The content of the rules of natural justice is to be found outside the Judicial Review Act. It is a statute designed to correct grievances arising from decisions made under Commonwealth enactments which are many and diverse. Generally, the rules of natural justice are found, not in Commonwealth legislation itself, but in the body of judgments of the courts developed over many years here and in the United Kingdom. Paragraph 5(1)(a) does not disturb the content of those rules; rather it assumes them and gives remedies to persons aggrieved if they are breached. I would dismiss the appeal with costs.

JUDGE3

I also agree. I only wish to add a word about natural justice. As I understood the argument for the appellants, it was that they were entitled to natural justice because they had a legitimate expectation that they would not be deported unless they were afforded an opportunity of being fully heard by the Minister. In my opinion, there is no evidence in this case which would warrant the conclusion that they were entitled to such a legitimate expectation.

The law in relation to that matter was recently discussed by a Full Court of this Court in Cole v. Cunningham (1983) 49 A.L.R. 123. In that case, both the Haj-Ismail Case, referred to by Lockhart J., and the decision of the Privy Council in Attorney-General of Hong Kong v. Ng Yuen Shiu (1983) 2 W.L.R. 735 were considered. Those cases were relied upon by counsel for the appellants in the present case; but in my view this case is a case of an entirely different kind. I agree that the appeal should be dismissed.

The order of the Court will be that the appeal be dismissed with costs. It is further ordered that the stay which was granted by Morling J. on 19 March 1984 will terminate on 13 April 1984.