Turner v Minister for Immigration and Ethnic Affairs

[1981] FCA 61

Re: SONYA GLORIA TURNER
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1981) 55 FLR 180
No. WAG 11 of 1981
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)

CATCHWORDS

Administrative Law - Decision to deport prohibited immigrant - application for Judicial Review - Improper exercise of power - Scope for Review

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

Migration Act 1958 (Cth.) ss. 8, 18

Administrative Law - Review of decision to deport prohibited immigrant - Nature of review - Whether improper exercise of power by Minister - Whether Minister acted in accordance with stated government policy - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 3 (1), 5(1) (e), (2) (b), (f), 13 - Migration Act 1958 (Cth), ss. 8 (2), (3), 18.

HEADNOTE

On 10th March, 1981, the Minister for Immigration and Ethnic Affairs declared that pursuant to s. 8 (2) of the Migration Act 1958 it was undesiralbe that the applicant be permitted to remain in Australia and in reliance upon s. 18 of the Migration Act 1958 he ordered that the applicant be deported from Australia. The applicant sought an order of review in respect of these decisions pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977.

Held: (1) Unlike the Administrative Appeals Tribunal, which is empowered to review a decision on the merits and to place itself in the position of the decision maker exercising all the powers and discretions available to that person, the Administrative Decisions (Judicial Review) Act does not create any such general right of review.

(2) The Administrative Decisions (Judicial Review) Act does not empower the court to substitute its decision for that of the decision maker.

Hamblin v. Duffy (1981), 50 FLR 308, referred to.
(3) It is not part of the function of the court under s. 5(2)(f) of the Administrative Decisions (Judicial Review) Act to review the policy of the Government. The court's concern is whether the Minister paid regard to the merits of the particular case when applying that policy.

HEARING

Darwin, 1981, May 18, 27. #DATE 27:5:1981

APPLICATION.

Application for an order of review in respect of a deportation order.

J. Mazza (solicitor), for the applicant.

M. C. Lee, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: James Mazza & Co.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

J. ISLES

ORDER

Orders accordingly.

JUDGE1

After a few entanglements this matter has emerged as an application pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977. It seeks to review two decisions of the Minister for Immigration and Ethnic Affairs, each made 10 March 1981.

Both decisions were made under the Migration Act 1958. The first declared pursuant to s.8(2) that it was undesirable that the applicant "be permitted to remain in Australia". The consequence of such a declaration was that the applicant who, as a citizen of New Zealand was exempt from the obligation to hold an entry permit required by Division 1 of Part II of the Act, by reason of an instrument of exemption made by the Minister on 14 February 1980, became a prohibited immigrant.

The second declaration, having recited that the applicant was a prohibited immigrant by virtue of s.8 in that, having entered Australia in circumstances in which Division 1 of Part II did not apply in relation to her entry she became a prohibited immigrant by virtue of s.8(3) and an entry permit having not been granted to her since becoming a prohibited immigrant, in reliance upon s.18 of the Act the Minister ordered that she be deported from Australia.

The applicant has not challenged the power of the Minister to make either of these decisions. Until recently there was little that a person in the applicant's position could do in relation to such decisions. There was strong if not unanimous authority that the Minister might issue a deportation order under s.18 without first giving the person affected an opportunity be be heard (Salemi v. MacKellar (No.2) (1977) 137 CLR 396) or, more broadly, without observing the principles of natural justice (R. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461.

The Administrative Appeals Tribunal Act 1975 established an Administrative Appeals Tribunal with wide powers to review decisions made in the exercise of powers conferred by an enactment which itself made provision for application to the Tribunal and decisions mentioned in the Schedule to the Act. That Act was not available to the applicant since in accordance with C1.22 of the Schedule, applications may be made to the Tribunal only for the review of decisions made under ss.12, 13 or 48. Thus the applicant was driven to seek relief under the Administrative Decisions (Judicial Review) Act 1977, there being no argument that each declaration made by the Minister was a "decision to which this Act applies", as that expression is defined in s.3(1). This has important consequences for the applicant as the scope for review under each of the statutes is markedly different.

The Administrative Appeals Tribunal "is empowered, as a court is not empowered, to review a decision on the merits . . . and the merits of a decision include not only the facts of the case but also any policy which has been applied or which ought to be applied to the facts in reaching the decision" (Re Becker (1977) 15 ALR 696 per Brennan J. at p.700). The Tribunal may place itself in the position of the decision maker, exercising all the powers and discretions available to that person, and not confining itself to the material that was before him.

"The question for the determination of that Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal" (Nevistic v. Minister for Immigration and Ethnic Affairs, unreported decision of Full Court of Federal Court delivered 16 April 1981).

The jurisdiction and powers entrusted to the Federal Court by the Administrative Decisions (Judicial Review) Act 1977 proceed on a different footing. They make susceptible to judicial review decisions of an administrative character made under an enactment other than a decision by the Governor-General or a decision included in any of the classes set out in Schedule 1. Section 13 enables an applicant to request the decision maker to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. This obligation is excluded in the classes of decision set out in Schedule 2 to the Act. Certain decisions made under the Migration Act fall within those classes of decision but neither of those presently under challenge does so.

The Administrative Decisions (Judicial Review) Act does not create any general right of review. Section 5 identifies the grounds upon which a decision may be reviewed. They were referred to compendiously by counsel as "errors of law". They include a breach of the rules of natural justice, failure to observe required procedures, lack of jurisdiction, lack of evidence to justify the making of the decision and improper exercise of a power. The expression "improper exercise of a power" is elaborated by sub-s. (2) which construes it to include such matters as taking an irrelevant consideration into account, failing to take a relevant consideration into account, exercising a discretionary power in bad faith, exercising a power in a way that constitutes abuse of the power and exercising a power so unreasonably that no reasonable person could have so exercised it.

The applicant relies quite specifically upon s.5(1)(e) namely that the making of each decision was an improper exercise of the power conferred upon the Minister by the Migration Act. Equally specifically, she relies upon two paragraphs of sub-s.(2), para.(b) in failing to take relevant considerations into account and para.(f) in exercising a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

This Court is not empowered to substitute its decision for that of the decision maker. I agree with the comments of Lockhart J. in Hamblin v. Duffy and Others (unreported decision delivered 15 April 1981).
"The question for the Court generally is whether the action is lawful in the sense that it is within the power conferred on the relevant minister, official or statutory body; or that the prescribed procedures have been followed; or that the general rules of law, including adherence to the principles of natural justice, have been observed."
Section 16 of the Judicial Review Act enables the Court to quash or set aside a decision, refer the matter to the decision maker for further consideration with such directions as the Court thinks fit, declare the rights of the parties in respect of any matter to which the decision relates, direct the parties to do or refrain from doing something which the Court considers necessary to do justice between the parties and where appropriate direct that a decision be made.

The applicant is a New Zealand citizen, about 30 years of age. Since 1969 she has made a number of journeys to and from Australia. On 25 October 1977 she was convicted in the District Court, Perth, of importing prohibited imports namely cannabis, possessing prohibited imports, the same cannabis, and later of making false statements, forgery and uttering. On the charge of importation she was sentenced to five years imprisonment with a minimum of two years and four months before parole. On the charge of possession she was sentenced to three years imprisonment concurrent with the larger term. On the charges of making false statements she was fined and on the two charges of forgery and one of uttering she was sentenced to twelve months imprisonment on each charge, to be served concurrently with one another but cumulative to the sentence already being served. The applicant had been arrested on 30 January 1977 when she and two associates arrived at Shark Bay in a yacht sailed from Bangkok. She was released on bail of $20,000 but absconded and flew by Qantas to Thailand under an assumed name. After some days there she intended to resume her flight to London but was detained by customs authorities of the Thai Government. About a week later she was driven to the Bangkok Airport and boarded a Qantas plane in the belief that she was continuing her journey to London. After the plane had taken off she discovered that it was in fact flying to Perth and on her arrival she was arrested and later appeared before the District Court. The charges of making false statements, forgery and uttering related to her application for a passport in order to leave Western Australia for Thailand after she absconded from bail.

The applicant was released on parole on 29 September 1980. Before this she had been given study leave from prison which enabled her to complete a graphic design course. She then enrolled at the Perth Technical College as a student for a Diploma in Business Administration and has completed her first term. The prison authorities reported favourably on her conduct and there have been no allegations against her since she was released on parole. She is an asthmatic and finds the climate of Australia more congenial than that of New Zealand.

Clearly she has the support of her family. Her parents, three sisters and two brothers are presently living in Western Australia; one brother still lives in New Zealand. Her parents have had business contacts with this country over 11 years. The applicant's affidavit says that they are contemplating living here permanently if she is permitted to stay. They are living at City Beach but it does not appear whether they have bought a home or taken any positive steps towards permanent residence.

In response to the applicant's request made pursuant to s.13 of the Judicial Review Act, the Minister furnished a detailed statement of the reasons for his decisions. They begin with findings on material questions of fact, setting out in some detail the applicant's history, then refer to written material of a wide nature upon which his findings were based and conclude with detailed reasons for his decision. It is a comprehensive document and the applicant does not challenge the accuracy of any of its contents.

But the applicant does say that the Minister failed to take into account three relevant considerations, her previous good conduct, the fact that she was on parole and so subject to supervision and the fact that she was not the prime mover in the events that gave rise to her conviction. In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision or indeed from the decision itself that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was.

The matter of the degree and circumstances of the applicant's involvement in the principal offences of which she was convicted can be disposed of quite shortly. Paragraphs 7, 8 and 9 of the Minister's reasons recite verbatim comments by the trial judge on this aspect, the applicant's own explanation when interviewed and the Minister's acceptance and adoption of the remarks of the trial judge. Likewise para.10 of the reasons read with para.16 puts beyond doubt that the Minister was aware of and gave consideration to the favourable prison and parole reports "which indicate that she has been rehabilitated since her incarceration" (para.10).

The reasons contain no express reference to the applicant's good conduct before her involvement in the importation of drugs. Paragraph 15 sets out the documentary evidence upon which the Minister relied. This includes reports from the Commonwealth Police and the applicant's parole officer, a report from the parole authorities, letters from the applicant's father and her solicitors coupled with submissions on behalf of the applicant and other material. The applicant's counsel did not suggest that any of this material contained express reference to her previous good conduct and I do not think, at least in the present case where the applicant had the benefit of family and legal advisers in making submissions to the Minister that it was the Minister's obligation to go beyond that material. If by "previous good conduct" was meant the absence of prior convictions, that was clear enough from the information before the Minister and the whole tenor of this reasons shows that he approached the matter on the basis that the applicant had not before her arrest in 1977 been convicted of any criminal offence or involved in any situation which might have given rise to a criminal charge. If by "previous good conduct" is meant general good behaviour, there is nothing to indicate that that matter was expressly put for the consideration of the Minister. But in any event it seems to me that a fair reading of the statement of reasons shows that the Minister proceeded on the assumption that there was nothing against the applicant's character before 1977.

Paragraph (f) of s.5(2) of the Judicial Review Act identifies as an improper exercise of a power "an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case". Again it is necessary to keep in mind the distinction between the sort of review contemplated by the Judicial Review Act and that envisaged by the Administrative Appeals Tribunal Act. In my view para.(f) must be read so that if it does appear that the decision maker has paid regard to the merits of the particular case when applying a rule or policy, it is not for this Court to say that it would have taken a different view. While the particular words used by the decision maker in his statement of reasons are important, they do not necessarily conclude the matter one way or another.

The policy of the Government relating to the deportation of persons convicted of criminal offences appears in exhibit 5, a policy statement originally issued as a news release but which, I was told, had been tabled in Parliament and so made subject to parliamentary review. See Re Becker, supra at p.701, although in a different context. Paragraph 11 of the statement of policy seeks to point out, without defining exhaustively, what the government regards as "compelling circumstances" in regard to drug offences. It continues
"All relevant factors are taken into account, but the weight given to drug offences of the kind referred to in this statement is such that the considerations in favour of deportation must almost always outweigh the considerations against deportation".

It is not part of the function of this Court to review the policy of the government; the question in the present case is whether the Minister acted in accordance with that policy without regard to the merits of the particular case. I am unable to conclude that he did. Paragraph 16 of his reasons shows the importance that he attached to the applicant's conduct since her imprisonment, the assessment that she is unlikely to commit further serious offences, and the presence of herself and her family in Australia. He then proceeded to balance that against her knowing involvement in the importation of drugs on a large scale, the substantial prison sentence that she received, her absconding from bail and forging documents to obtain a passport, and the need for any "compassionate circumstances" to be "very substantial" before they outweigh the interests of the Australian community in effecting deportation.

It is difficult then to say that the Minister failed to give regard to the merits of the applicant's case when exercising what was a discretionary power in accordance with a policy of government. If this matter were before the Administrative Appeals Tribunal a much broader approach would be warranted. But it is not and decisions from that jurisdiction will often be of little assistance.

In my view the application should be refused.