Steed v Minister for Immigration and Ethnic Affairs

[1981] FCA 197

Re: IAN RAYMOND STEED
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G107 of 1981
Appeal from Administrative Appeals Tribunal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

N.S.W. DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
McGregor J.
Morling J.

CATCHWORDS

Appeal from Administrative Appeals Tribunal - Deportation Order - No Error of Law - Consideration of Ministerial Policy

Administrative Appeals Tribunal Act, 1975, s.44

Migration Act, 1958, s.13

Parole of Prisoners Act (NSW), 1966, s.6

HEARING

SYDNEY

#DATE 26:10:1981

JUDGE1

The reasons I am about to deliver are those of the Court. This is an appeal from a decision of a Presidential Member of the Administrative Appeals Tribunal confirming a deportation order made against the appellant by the Minister for Immigration and Ethnic Affairs. The appeal is brought pursuant to the provisions of s.44 of the Administrative Appeals Tribunal Act, 1975.

The deportation order was made on 8 January 1981 pursuant to s.13 of the Migration Act 1958.

On 10 February 1981 the appellant applied to the Tribunal for a review of that decision. The appellant has not contended that the deportation order was invalid or that the Minister had no jurisdiction to make the order.

Before this Court it was conceded, as it was conceded before the Tribunal, that the appellant had not been absorbed into the Australian community. We should observe that although this concession was made, and in our view correctly, to the learned Presidential Member of the Tribunal his Honour carefully examined for himself whether there was any basis for an argument that the appellant had not been absorbed into the Australian community and, therefore, is not or might not be an immigrant. That examination led his Honour to the view that the appellant had not been so absorbed.

The attack made in this Court on the decision of the Tribunal is narrow based. The appellant was sentenced on 25 June 1979 to a term of imprisonment of five years with a non-parole period due to expire on 8 January 1981. Pursuant to s.6(2)(a)(i) of the Parole of Prisoners Act (NSW) 1966 he was in fact released from prison on parole on 23 December 1980.

In effect the argument is that there is a ministerial policy not to deport a person while he is serving a sentence. It was put that a sentence included not only the time spent in custody but also any parole period thereafter. It was argued that there was a duty on the Tribunal to examine the appropriateness of that policy and its application to the particular facts of this case.

It was then submitted that the learned judge fell into error in that he neither considered the appropriateness of the policy nor its application to the circumstances of the appellant.

In our view no error of law is shown such as is necessary for an appeal to this Court.

A reading of his Honour's judgment discloses that he gave careful consideration to the whole of the facts, including the existence and terms of relevant ministerial policy. It also appears from his Honour's reference to a decision of his own on the subject that he was well acquainted with that policy.

It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention. It is not in anyone's interests that the judge or Tribunal be expected to set out every consideration which passes through his mind, although some, and usually the most significant, will be expressly dealt with.

We are in this case satisfied that his Honour did refer to the relevant parts of the Minister's policy on deportation and, in particular, the deportation of persons convicted of drug related offences. It was in no way incumbent upon his Honour to refer specifically to every item in the policy.

What he did was to identify the significant parts of the policy relevant to the appellant's situation, consider for himself the weight which should be given to this policy and apply it to the facts of the instant case. There is nothing to indicate that his Honour failed to apply to the facts of the case the principles laid down in Drake's case, (1979) 24 ALR 577; 2 ALD 60.

It was contended on behalf of the appellant that a sentence of imprisonment has a rehabilitative as well as a deterrent element. It was said that by failing to advert specifically to the fact that the appellant's parole period had not expired when the order was made the judge failed, or may have failed, to have taken into account a material matter which might have led him to a different conclusion.

It was in effect argued that had the appellant been able to serve out the full period of his sentence, including the parole period, he might then have been in a stronger position to avoid a deportation order by demonstrating that he had rehabilitated himself in the community. We do not think there is any substance in this submission.

The particular paragraph of the policy relied upon is paragraph 14. Although it is unnecessary for the determination of the present appeal to come to any concluded view as to the meaning of this paragraph we would say that we doubt whether the meaning contended for it by Mr. Coombs is correct.

We think there is much to be said for the view that paragraph 14 is more concerned with administrative arrangements for the actual physical deportation of persons from Australia. The paragraph is headed "Deportation Arrangements". It is true that it refers to "periods of imprisonment" imposed by the courts as punishment for crimes. It is also true that a parole period following time spent in custody is part of the sentence of imprisonment. Nevertheless we think that the sense of paragraph 14 is that the Minister is expressing the view that in general the period of time spent in custody should not be cut short by a deportation order. We think this view is strengthened by a reference to paragraph 15 which seems to be concerned with the arrangement of passages for deportees leaving the country. It could easily lead to strange and difficult results if an offender were to be at large in the community for some years after release from prison before his deportation could be considered and an order made.

We have said that this appeal did not involve a question of law. It was in fact an invitation to us to become involved in factual considerations, and this we must deprecate. The application of the Minister's policy was a factual consideration for the Tribunal. The proposition that failure to take into account a material consideration is an error of law must be properly understood and used in relation to that which is truly material. It cannot become an excuse for bringing questions of fact to this Court.

In our view the appeal should be dismissed with costs. The order of the Court is that the appeal be dismissed with costs.