Smith, Richard Wayne v The Hon. Jogn Stewart West

[1984] FCA 43

Re: RICHARD WAYNE SMITH; KATHLEEN SMITH and ASHLEY CAROLINE SMITH
And: THE HONOURABLE JOHN STEWART WEST and THE COMMONWEALTH OF AUSTRALIA
No. G 76 of 1984
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.

CATCHWORDS

Administrative law - review of deportation orders - prohibited immigrants - whether Minister took into consideration the fact that a child had been born to immigrants in Australia and that child was an Australian citizen - whether rules of natural justice apply to the power to deport - whether Minister acted fairly - whether an improper exercise of power by Minister as he failed to take into account welfare of infant child.

Administrative Decisions (Judicial Review) Act 1977, s.5(1), (2)

Migration Act 1958, s.18

HEARING

SYDNEY

#DATE 14:3:1984

ORDER

1. The application is dismissed with costs.

JUDGE1

This is an application for orders of review in

respect of deportation orders made by the Minister for Immigration and Ethnic Affairs. The first two applicants are husband and wife and the third applicant is their five months old daughter. The applicants have two other children aged eight and six years who are American citizens, as are Mr and Mrs Smith. The decisions which are sought to be reviewed are decisions to deport Mr and Mrs Smith taken by the Minister under s.18 of the Migration Act 1958. That section provides that the Minister may order the deportation of a person who is a prohibited immigrant under any provision of the Act.

1. The grounds relied upon by the applicants' counsel, who argued every matter which could be urged in support of the applications, are those referred to in paragraphs (a) and (e) of sub-s. 5(1) of the Administrative Decisions (Judicial Review) Act 1977. Those provisions are in the following terms:
   
   

"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 connexion with the making of the decision;

(b) that procedures that were required by law to be observed in connexion with the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;"

Sub-section 5(2) provides that the reference in paragraph 1(e) to an improper exercise of a power shall be construed as including a reference to, inter alia, "failing to take a relevant consideration into account in the exercise of a power".

1. The facts of the matter are not in dispute. They disclose a very sad state of affairs. Mr and Mrs Smith entered Australia on 18 January 1983. They were granted temporary entry permits to remain in this country for a period of six months. No further entry permits were granted to them. On the expiration of their temporary entry permits they both became prohibited immigrants. Apparently very soon after they arrived in Australia they got into trouble with the law. No good purpose would be served by me reciting in these reasons the conduct which led to that result. It is sufficient to say that at some time prior to 12 August 1983 they were charged with offences involving alleged dishonesty.

2. Mr and Mrs Smith had an apprehension that they might well be sent to jail in respect of the offences. That apprehension proved to be justified. On 12 August they were interviewed by an officer of the Department for Immigration and Ethnic Affairs. They each signed statements which were prepared by the officer. There is no suggestion that the statements were obtained improperly, but counsel for the applicant pointed out that at the time Mr and Mrs Smith made the statements they were both facing the prospect of imprisonment and did not contemplate that there may have been an option open to them to elect to stay in Australia.

3. Mr Smith said in his statement that his wife was eight and a half months pregnant but that nevertheless he wished to return to America with his wife and children before the baby was born. He said that he would prefer the child to be born in the United States. He also said that he did not want the children to go back to the United States before he did as he feared that his brother could take legal action to take custody of them if his wife went back to the United States and was imprisoned. Apparently it is the fact that Mrs Smith has been either charged with or convicted of a charge of larceny in the United States.

4. In her statement, Mrs Smith said that she wished to remain in Australia until six weeks after her baby was born. She said she had been advised by her gynaecologist that it would be dangerous for her to travel at that time and for six weeks after the baby arrived. She said, "I would like to return to America with my children all at the same time".

5. Shortly after these statements were furnished to the departmental officer, a letter was sent to the Minister by Messrs. Bartier Perry & Purcell who acted for Mr Smith. The solicitors said that on 22 August Mr Smith had been sentenced in the District Court of New South Wales to imprisonment for a period of two years with a non-parole period expiring on 1 March 1984. The letter continued in the following terms:
   
   

"It is our understanding that the Commonwealth Department of Immigration desires to deport Mr Smith to the United States at the earliest opportunity. It is further our understanding that Queensland authorties wish to have him extradited to Queensland to face charges of false pretences in that state. It is also our understanding that N.S.W. authorities will not release Mr Smith on parole if there is the possibility of extradition or deportation upon his release as in that event compliance with the conditions of supervision will be impossible.

We seek the co-operation of all three authorities in attaining Mr Smith's earliest release and deportation to the United States. We have written to the Queensland Attorney General asking that the relevant authorities in that state drop the Queensland charges. We have written to the N.S.W. Department of Corrective Services asking that Mr Smith's release be arranged in co-ordination with deportation by your department. We now write to you asking that your department liaise with the other two authorities to ensure Mr Smith's earliest release and deportation.

Would you please let us know what can be done."

1. Thereafter on 1 September 1983 Mr Smith wrote to the Minister referring to the fact that his solicitor had written the letter to which I have just referred and imploring the Minister to repatriate him. He said, inter alia:
   
   

"In the name of God and for the sake of my two small children, I pray that your office, together with Corrective Services, can help me achieve my goal of repatriation. My children should not have to suffer any more for the sins of their parents and I feel that my family has been a burden on the pockets of N.S.W.

Could you please advise me of what, if anything, you can do to help me. I simply want to take my family home."

1. In due course, a report was prepared by a departmental officer for consideration by the Minister's delegate. The report referred to the history of the applicants in this country. It referred in terms to the fact that Mrs Smith had given birth to a female child on 15 September 1983. The officer annexed to the report the two statements made by Mr and Mrs Smith on 12 August to which I have already referred. It is to be remembered that the Minister's delegate would also have had in front of him not only the report but also the letters from Mr Smith and his solicitors strongly urging the Minister to deport Mr Smith. Included in the report which went to the Minister's delegate was the following note:
   
   

"Following the birth of their third child on 15.9.83, Mr and Mrs Smith were again queried on their desire to return to U.S.A.. Mr Smith stated he wished to be deported, in company with his 2 elder children. Mrs Smith opposed deportation and wished to remain in Australia with her young daughter."

1. I can readily understand that at that stage Mr Smith still wished to be deported because he was in prison. No doubt he thought that repatriation to his homeland was a better fate than spending the rest of the non-parole period of his sentence in prison. He cannot be criticized for later changing his mind but the fact is that when the deportation orders were made on 30 September 1983 he was still pressing the Minister that he should be deported.

2. In my opinion the recommendation which went to the Minister's delegate referred to all the relevant facts concerning the applicants. It is true, as Mr Terracini has argued, that the officer did not refer in terms to the fact that the child born in September was an Australian citizen. It is plain that the Minister's delegate had drawn to his attention the fact that the child had been born in Australia. I think it would be doing a grave injustice to him to assume that he ignored that fact or that he was unaware that her birth in Australia gave her the rights of an Australian citizen. I have no doubt that he must have had regard to the fact that the child had been born in Australia and that she was an Australian citizen. I also have no doubt that he was aware that there was indeed a grave problem about both her future welfare and that of her siblings.

3. On 16 November 1983 a fresh deportation order was made against Mrs Smith because of some assumed irregularity in the order made against her on 30 September. However, I do not think anything turns on this, as there is no suggest ion that there was any relevant change in circumstances after the making of the first order.

4. I must now return to the two grounds upon which it is argued that I can properly grant the relief sought. The first ground is, as I have already indicated, that a breach of the rules of natural justice occurred in connection with the making of the deportation orders. This ground must fail for two reasons. First, having regard to the present state of the authorities, I think it is now settled law that the rules of natural justice do not apply to the exercise of the power under s.18 to deport a prohibited immigrant. It is true that in Salemi v Mackellar (No 2) (1977) 137 C.L.R. 396 the High Court evenly divided on the question whether the rules of natural justice applied in such a situation. However I think the correct view of the High Court's decision in Queen v Mackellar Ex parte Ratu (1977) 137 CLR 461 is that the majority of the court there decided that the rules do not apply when the Minister exercised his power under s.18.

5. In Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 40 A.L.R. 341 a full court of this court considered the effect of the decision in Ratu's Case. At p.348 of their judgment Bowen C.J. and Franki J. seem to leave open the question of whether there is still room for contending that, in some exceptional case, which had not then emerged, there would arise an obligation on the Minister to afford natural justice when making an order under s.18. In my view the authorities show that on the facts of the present case there was no obligation on the Minister to observe the rules of natural justice.

6. However, had I been of a different view I would have been of the opinion that the Minister's delegate did in fact observe the rules of natural justice in this case. 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: see Salemi's Case (supra) per Stephen J. at p. 444 where his Honour said:
   
   

"It is, no doubt, now a truism that in cases in which the rules of natural justice are applicable the procedural consequences will not necessarily be uniform. On the contrary they will depend upon what Kitto J. describes, in Mobil Oil Australia Pty. Ltd. v Federal Commissioner of Taxation ((1963) 113 C.L.R. 475, at p. 504) as 'the particular statutory framework' within which they are to apply. But not only will their effect and application thus vary depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v Baldwin (1964) AC, at pp 65, 72), they may also vary from case to case although each be conducted before one and the same tribunal or person. Kitto J. gave recognition to this fact in the course of his reasoning in the Mobil Oil Case ((1963) 113 C.L.R., at p. 504) In Durayappah v Fernando their Lordships' reference to particular instances in which the existence of great urgency would require the limitation, 'timeously, perhaps severely', of the right to be heard, although never justifying a denial of that right ((1967) 2 A.C. at p.346), emphasizes how much the concept of fairness, inherent in the audi alteram partem rule, may require to be moulded to the particular circumstances of the case. In Furnell's Case

((1973) A.C., at p. 679), their Lordships cited with approval what was said by Tucker L.J. in Russell v Duke of Norfolk ((1949) 1 All E.R. 109, at p. 118), that 'the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration'."

1. 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.

2. 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.

3. I turn now to the second ground relied upon by the applicants, that is, the that the making of deportation orders was an improper exercise of the power conferred by s.18 because the Minister failed to take into account the welfare of the infant female child. 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.

4. 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.

5. I therefore do not think that any claim has been made out for the relief sought.

6. As I said on a previous occasion, I think it ought to be noted that this case has been competently prepared by solicitors and competently argued by counsel, at considerable sacrifice to themselves. The applicants are not legally aided. They have had the benefit of a little- known practice in the profession of providing free legal assistance to people unable to afford it and who are in dire need of it. This practice should not go unnoticed in these days when it is fashionable to critize lawyers for overcharging. I am indebted to Mr Terracini for the help he has given the Court.

7. In the circumstances the only order I need make is that the application is dismissed with costs.