Stone, G.M. v The Minister for Immigration & Ethnic Affairs

[1982] FCA 249

Re: GLENN MICHAEL STONE
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NSW G168 of 1982
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling, J.

CATCHWORDS

Administrative Law - deportation order - application for order of review - review by Administrative Appeals Tribunal - reconsideration by Minister for Immigration - applicant given opportunity to place material before Minister - final decision of Minister to deport applicant - whether Minister made error of law - whether applicant denied natural justice

Migration Act 1958, ss. 13 and 66E

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

HEARING

SYDNEY

#DATE 12:11:1982

ORDER

Application dismissed with costs.

JUDGE1

This is an application by Glenn Michael Stone ("the applicant") seeking review of a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Act"). It is conceded by the respondent that the decision in respect of which the order of review is sought is a decision to which the Act applies and that the applicant is aggrieved by it. The question for decision in the present case is whether the applicant has made out any one or more of the grounds referred to in s.5(1) of the Act.

The nature of the decision by which the applicant is aggrieved appears from the facts which I shall briefly state. The applicant was born in the United Kingdom and was taken by his parents to live in New Zealand when he was two years of age. In 1971 he moved from New Zealand to Australia but he returned to New Zealand after about a year. He returned to Australia in April 1973 and has since resided in this country. On 22 April 1977 he was sentenced to a term of eight years imprisonment having been convicted upon a charge of armed assault and robbery.

On 27 October 1980 the Minister of State for Immigration and Ethnic Affairs ("the Minister") made a decision under s.13 of the Migration Act 1958 (Cth) that the applicant be deported from Australia. The applicant sought a review by the Administrative Appeals Tribunal of the Minister's decision. The application for review was heard by Davies J. On 24 August 1981 his Honour gave his decision on the application and, after an elaborate statement of his reasons said:

"In the circumstances, I remit the matter to the Minister of State for Immigration and Ethnic Affairs with the recommendation that, if Glenn Michael Stone can be deported to New Zealand, he should be so deported. But if arrangements for his deportation to New Zealand cannot be made, the order for his deportation should be revoked."

After his Honour's decision was given, an approach was made by the Australian Government to the New Zealand Government seeking the applicant's readmission to New Zealand. The New Zealand Minister for Immigration expressed reluctance to readmit the applicant. It appears that the principal reason for this reluctance was that the New Zealand authorities took the view that the applicant, by moving to Australia, had abandoned his domicile in New Zealand. Apparently New Zealand does not deport people who have lived there for more than five years and the view was taken by the New Zealand authorities that the applicant, having lived in Australia for more than five years, should not be deported from Australia.

In spite of the New Zealand Government's reluctance to accept the applicant the Australian Government pressed its request that he be readmitted to New Zealand. However, on 8 February 1982 the Australian Government was formally advised that the New Zealand Minister had decided that Mr Stone was not to be readmitted to New Zealand.

Thereafter on 11 March 1982 a recommendation was made by Mr R.A. Henderson, of the Criminal Deportation Section of the Department of Immigration and Ethnic Affairs, that the deportation order against the applicant be revoked. It was stated in the recommendation that the alternative course of action would be to deport the applicant to his country of citizenship, i.e. the United Kingdom. In his recommendation Mr Henderson gave a number of reasons why he favoured the revocation of the deportation order.

Mr Henderson's recommendation was considered by the then Minister on 15 April 1982. In a written memorandum of that date he expressed the wish that the New Zealand Minister of Immigration be again written to and asked to review his decision. In due course this was done and eventually on 12 July 1982 the New Zealand Minister wrote to the Honourable John Hodges, the present Minister for Immigration and Ethnic Affairs, stating that he was prepared to readmit the applicant. In the same letter he raised the cases of two other persons who had migrated to Australia from places other than New Zealand, who had subsequently gone to live in New Zealand and who were the subjects of deportation orders issued by the New Zealand Government. Apparently these persons had been refused re-entry to Australia by the Australian Government.

After receipt of the New Zealand Minister's letter of 12 July 1982, Mr Henderson on 12 August 1982 made another recommendation to the Minister. After referring to the correspondence received from the New Zealand Minister he referred to the two other cases referred to by him and stated he would prepare a report on those cases. In respect of the applicant he said:

"Since the N.Z. Minister of Immigration has approved Stone's re-admission it would now be appropriate for Stone's deportation to New Zealand to proceed forthwith and I recommend accordingly. Such action would be in accordance with the AAT's recommendation and your predecessor's clear intention."

On 18 August 1982 the present Minister approved Mr Henderson's recommendation and in due course the applicant was orally informed that he would be deported. This information was confirmed to him in a letter dated 21 September 1982.

The decision in respect of which the applicant claims to be aggrieved was said to be the decision made by the present Minister on 18 August 1982 approving Mr Henderson's recommendation of 12 August 1982. As I have already said, it was conceded on behalf of the Minister that his decision of 18 August was a decision within the meaning of the Act. The principal ground relied upon by Mr Young who argued the matter on behalf of the applicant was that the Minister's decision of 18 August involved an error of law - vide s.5(1) (f) of the Act. Although the argument was put in a number of ways, in substance it amounted to a submission that so much time had elapsed between the giving of Davies J's decision on 24 August 1981 and the making on 18 August 1982 of the Minister's final decision to deport the applicant that it was an error of law for the Minister to give effect or have regard to the learned Judge's decision. A variation of the submission was that the Minister's decision involved an error of law in that it treated the decision of Davies J. as recommending that the applicant should be deported if, at any time in the future, arrangements could be made for his deportation to New Zealand. It was said that this was an erroneous construction of his Honour's decision, and that it should be construed as conveying the recommendation that the applicant should not be deported unless the New Zealand Government would, upon first request, re-admit him to New Zealand. A further variation of the submission was that, properly construed, Davies J's decision conveyed the recommendation that the applicant should not be deported unless he could be deported to New Zealand within a reasonable time. It was then argued that the Minister's decision of 18 August 1982 necessarily proceeded upon an erroneous construction of the learned judge's decision because it could not be said that the Minister's decision on 18 August was made within a reasonable time of the judge's decision. Mr Young frankly conceded that his argument was not easily identified, but I think that I have done justice to it by stating it in its various forms.

In spite of Mr Young's earnest arguments, I do not think it can be said of the Minister's decision that it was based upon any of the suggested errors of law. It is necessary to keep firmly in mind the nature of Mr Justice Davies' decision. It was a recommendation which was not binding upon the Minister. It is clear that the Minister was not bound to give effect to his Honour's recommendation. See Minister for Immigration and Ethnic Affairs v Pochi (1981) 36 ALR 561. Even if his Honour had recommended that the applicant be not deported if New Zealand would not agree to re-admit him within a specified time, such a recommendation would not have bound the Minister. All that the Minister decided to do on 18 August 1982 was to implement the decision already taken many months before to deport the applicant. It is not possible, in my opinion, to categorise that decision as having been based upon any error of law. The decision of the Minister was to carry into effect the deportation order already made. The fact that nearly twelve months elapsed after the giving of Mr Justice Davies' decision before the Minister took his decision of 18 August did not deprive the Minister of his power to decide to enforce the deportation order. Plainly he had regard to the learned judge's recommendation when he made his decision. The judge did not place any limitation upon the time within which the applicant should be deported to New Zealand. Even if he had it would not have been an error of law for the Minister to have made a decision contrary to such a recommendation. Nor did his Honour recommend that the applicant should not be deported unless the New Zealand Government would, upon first request, re-admit him to New Zealand. Again, even if he had, such a recommendation would not have bound the Minister and it would not have been an error of law for him not to adopt it.

I think there is some substance in a submission put by Mr Young that his Honour's reasons were intended to convey, and do convey, a recommendation to the Minister that the applicant should only be deported if he could be deported to New Zealand within a reasonable time. It cannot be supposed that his Honour intended to recommend to the Minister that the applicant should be deported at any time in the future, however remote, if the New Zealand Government would then accept him. I shall say something more on this matter at the conclusion of these reasons. However, accepting the submission that his Honour's recommendation was tantamount to a recommendation that the applicant should not be deported unless he could be deported to New Zealand within a reasonable time, it would not have been an error of law for the Minister not to adopt that recommendation. In any event, although the time which in fact elapsed was fairly lengthy, i.e. twelve months, I do not think it was so lengthy as to be unreasonable having regard to the necessity for inter-governmental negotiations to take place. Mr Young submitted that whilst twelve months might not have been an unreasonable delay in ordinary circumstances, it was unreasonable in the present case because of the fact that in February 1982 the New Zealand Government initally refused to accept the applicant. Even if the applicant had been informed of the New Zealand Government's initial decision (and the evidence does not establish this) such a refusal would not have made it unreasonable for the Australian Government to persist in its negotiations with the New Zealand Government, as in fact happened. For these reasons, I am of the opinion that the applicant's primary submission, in whatever form it is stated, must fail.

It was also submitted that the decision taken by the Minister on 18 August was a fresh deportation order made pursuant to s.13 of the Migration Act. It was argued that the applicant should have been informed of the Minister's intention to make such a fresh order and also should have been informed, after the order was made, that it was a fresh order under s.13. Mr Young submitted that the Minister's failure to so inform the applicant amounted to a breach of the rules of natural justice and was a ground for relief under s.5(1)(a) of the Act. In my opinion, this argument has no substance, if only because the decision of 18 August 1982 did not amount to a fresh order under s.13 of the Migration Act. What the Minister decided to do was to approve a recommendation for executive action to enforce his predecessor's order. The facts in this respect are, for relevant purposes, indistinguishable from the facts in The Queen v Commissioner of Police; ex parte Ivusic (1973) 20 FLR 412 and I respectfully agree with the reasons of Connor J. in that case at p.425 where his Honour rejected a similar argument. Connor J's decision was upheld on appeal - see Ivusic v The Queen (1973) 127 CLR 348.

An alternative argument was presented that, even if the Minister's decision was not a decision to deport the applicant pursuant to s.13 of the Migration Act, the applicant should have been afforded the opportunity of being heard by the Minister before he made that decision. It was argued that no proper opportunity was afforded to the applicant to place in front of the Minister up-to-date material favourable to his case. This argument was rather faintly pressed. In my opinion, assuming in favour of the applicant that the rules of natural justice applied so as to require the Minister to afford the applicant an opportunity to be heard before he made his decision, those rules were not abrogated in the present case. As late as 15 February 1982 the applicant and his wife were interviewed by a senior officer at the Department of Immigration and a comprehensive memorandum was prepared recording the matters that they raised in support of their request that the applicant be not deported. This interview took place some six months after the conclusion of the proceedings before Davies J. in the Administrative Appeals Tribunal. It must have been apparent to the applicant in February 1982 and subsequently that his deportation was still under consideration. Whatever be the content of the rules of natural justice, I do not think they required the Minister to again approach the applicants after February 1982 to ascertain whether they wish to place yet further submissions before him. The precise content of applicable rules of natural justice or standards of fairness will depend upon the circumstances of the particular case. See Dixon v The Commonwealth (1981) 3 ALD 289 at 294.5 per Bowen C.J. and Deane J. and cases cited by them. In the circumstances of this case I am satisfied that no breach of the rules of natural justice has been established.

It was further submitted that the reference in Mr Henderson's memorandum of 12 August 1982 to the cases of the two other persons mentioned in the New Zealand Minister's correspondence establishes that the deportation of the applicant was in the nature of a "trade off". Neither the evidence nor the terms of the memorandum support this submission.

Mr Young also submitted that the reference in Mr Henderson's memorandum to the fact that the applicant married less than two months after his deportation was ordered gives rise to the inference that Mr Henderson was conveying the view to the Minister that the applicant's marriage was one of convenience only. I do not think that the words used are capable of giving rise to such an inference. In any event, it cannot be assumed that the Minister was not fully aware of the reasons given by Davies J. in which he dealt with this matter in a manner favourable to the applicant.

For all the above reasons I am of the opinion that the applicant has not made out any of the grounds enumerated in s.5(1) of the Act and that therefore the application must fail. It will now be for the Minister to determine finally whether or not the applicant should be deported. It is no part of the function of this court to make any recommendation in that regard. However, in fairness to the applicant, I think it is appropriate to draw attention to one aspect of his case that seems to me to be of considerable importance and may warrant reconsideration of it. It seems fairly clear from a reading of reasons given by Davies J. on 24 August 1981 that he would have attributed significance to evidence, had it been given, that the stance then adopted by the New Zealand Government was that it would not re-admit the applicant to New Zealand. His Honour probably did not contemplate that the applicant would be left in a state of uncertainty for a period as long as twelve months, not knowing his fate. The longer the applicant lived in this country with his newly acquired wife, the stronger became his case for being permitted to remain. It may be observed that the former Minister at one time contemplated the grant of Temporary Entry Permits to the applicant if New Zealand refused to accept him - vide his memorandum of 15 April 1982. He saw this as a procedure, short of deportation, which would protect the public interest. In fact New Zealand refused, for a considerable time, to accept the applicant and it would have been consistent with the former Minister's attitude for the applicant to then have been granted a Temporary Entry Permit and for the permit to have been extended should his conduct have proved exemplary. Evidence was tendered before me to show that, in fact, his conduct has been exemplary since his marriage to his Australian wife. This evidence is wholly irrelevant to any issue before me but it would be unfortunate if it were not considered by the Minister before his final decision is taken.

I have already observed that in his report of 11 March 1982 Mr Henderson recommended that the deportation order be revoked. The contrary recommendation made in his report of 12 August 1982 was made on the basis that deportation of the applicant would be in accordance with the Administrative Appeals Tribunal's recommendation. It is true that deportation would be in conformity with the Tribunal's recommendation but it is not necessarily the case that the Tribunal's decision would have been the same if it had known that the applicant would be permitted to remain in this country for a further 12 months in the course of which he would necessarily strengthen his ties with it.

The application is dismissed with costs.