Znaty v Minister for Immigration - [1972] HCA 14

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Windeyer, Owen and Walsh JJ.

ZNATY v. MINISTER FOR IMMIGRATION

(1972) 126 CLR 1

25 February 1972

Immigration and Aliens—Constitutional Law (Cth)

Immigration and Aliens—Deportation—Power of Minister to choose vessel on &hich deportee to leave Australia—Power to require conveyance to particular place—Intention of Minister to secure arrival of deportee in particular place—Whether deportation valid—Migration Act 1958-1966 (Cth), ss. 18, 20, 22, 39. Constitutional Law (Cth)—Immigration and emigration—Deportation—Power of Minister to require deportee to be taken to particular place—Migration Act 1958-1966 (Cth), ss. 18, 20, 22, 39—The Constitution (63 &64 Vict. c. 12), s. 51 (xxvii.).

Decisions

1972, February 25.
The following written judgments were delivered : -
BARWICK C.J. I have read the reasons given by my brother Windeyer for thinking that the Commonwealth lacks power under s. 5 (xxvii.) of the Constitution when deporting a person to insist that the carrier who carries that person should carry him or her to some specific place. I agree with my brother's conclusion. I am unable to see any need in order to give full amplitude to the constitutional power to include in it the power to determine the place to which the deportee must go. However, as others have been of a different opinion and the Court has made an order conformable thereto it seems unnecessary for me to develop the matter further. (at p3)

McTIERNAN J. I agree in the reasons for judgment of Walsh J. As I stated upon the conclusion of the argument I am of opinion that the application was rightly dismissed. I think there is no question that s. 18 and s. 20 of the Migration Act 1958-1966 (Cth) are valid laws and that the order for deportation here in question is wholly within the power conferred upon the Minister by those sections and enforceable. (at p3)

WINDEYER J. When the Court, in December 1970, dismissed the application in this case it was said that it did so by a majority and that the reasons for the decision would be given later. I was one of the minority. There would now be no purpose in my elaborating the reasons why I considered, and still consider, that the injunction that was sought ought to have been granted. It suffices to say that the evidence disclosed - sufficiently at all events to found an interlocutory injunction - that the Minister chose the aircraft by which the plaintiff was to be deported and made the arrangements for his travel and with a view to ensuring that he was taken to Morocco. Why the Minister should have insisted on his being taken there, when he did not wish to go there and was willing to go elsewhere, does not appear. The reasonableness or fairness of the Minister's decision did not arise for consideration if it were lawful. But I thought that it was not lawful. We were not concerned with the meaning in the abstract of the words "deport" or "deportation"…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1972] HCA 14
Decision Date: 25 February 1972

CaseChat Overview and Summary

The applicant, Znaty, sought judicial review of a decision by the Minister for Immigration to refuse to grant him a visa. The dispute concerned the Minister's assessment of Znaty's character for the purposes of the *Migration Act 1958* (Cth). The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister, in forming the opinion that Znaty did not pass the character test, had failed to take into account relevant considerations or had taken into account irrelevant considerations. This involved an examination of the scope of the Minister's discretion under the *Migration Act* and the principles of administrative law concerning the proper exercise of such discretion.

The Court considered the provisions of the *Migration Act* relating to the character test and the Minister's power to refuse a visa on character grounds. The judges analysed the evidence before the Minister, including Znaty's criminal record and other background information. The Court affirmed that the Minister's decision must be based on a proper consideration of the facts and the relevant criteria established by the Act. The Court found that the Minister had not acted unlawfully in reaching his decision.

The High Court dismissed the application for judicial review.

Orders