Re Brett Anthony Collins and Patricia Irene Dunn v Minister of Immigration and Ethnic Affairs [1982] FCA 259 (16 December 1982)

FEDERAL COURT OF AUSTRALIA

Re: BRETT ANTHONY COLLINS AND PATRICIA IRENE DUNN
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G 216 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

Administrative Law - deportation order - application for declaration pursuant to para. 13 (4A) (b) Administrative Decisions (Judicial Review) Act 1977 - whether applicant entitled to request Minister's reasons for decision - whether Minister's decision within para. (f) of Schedule 2 to the Act.

Administrative Decisions (Judicial Review) Act 1977 s. 13

Migration Act 1958 ss. 13, 66E

HEARING

SYDNEY
16:12:1982

ORDER

THE COURT ORDERS THAT:

1. It be declared that the applicants were entitled to request the respondent to furnish them 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 of the Minister made on 16 August 1982 and notified to the applicants by telex addressed to their solicitor, received by him on 21 September 1982.

2. The respondent pay to the applicants their costs of this application.

DECISION

This application before me is one of a bewildering array of applications made by Brett Anthony Collins and Patricia Irene Dunn ("the applicants"). They are husband and wife. The applications are in one way or another all designed to induce the respondent, the Minister for Immigration and Ethnic Affairs ("the Minister"), to revoke a deportation order made against the first applicant on 4 July 1980 and to allow him to remain in this country. I heard the application two days ago and reached a conclusion then on the argument advanced as to the outcome of the application, but I raised certain questions which seemed to me basic to the application and yet were not argued by any party, so I decided to consider the matter for a short time.

A statement of the curial history of the matter is necessary to understand the present application. The first applicant is a New Zealand citizen who entered Australia on 13 January 1969. On 21 December 1971 he was convicted in the Supreme Court of New South Wales of offences of armed robbery and assault committed on 8 April 1971 and was sentenced to 17 years imprisonment with a non-parole period of 8 1/2 years. He was released on parole on 11 June 1980.

On 4 July 1980 the Minister, pursuant to s. 13 of the Migration Act 1958, ordered that the first applicant be deported from Australia. On 27 August 1980 the first applicant applied to the Administrative Appeals Tribunal for a review of the Minister's decision to deport him. On 22 January 1981 the Tribunal affirmed the Minister's decision. On 23 January 1981 the first applicant lodged a notice of appeal against the Tribunal's decision. On 1 October 1981 this Court set aside the Tribunal's decision and remitted the matter to it to be heard and decided again.

The Tribunal reheard the matter and, on 29 April 1982, affirmed the Minister's decision that the first applicant be deported from Australia. On 20 May 1982 the first applicant lodged a notice of appeal to this Court against that decision. On 17 November 1982 this Court dismissed the appeal. Meanwhile, on 21 September 1982, the solicitor for the applicants received a telex from the Department of Immigration and Ethnic Affairs ("the Department") in these terms:

'REFERENCE APPEAL TO FEDERAL COURT BY MR BRETT ANTHONY COLLINS STOP I AM DIRECTED TO INFIRM' (SIC) 'YOU THAT THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS HAS TAKEN INTO CONSIDERATION VARIOUS REPRESENTATIONS MADE BY AND ON BEHALF OF MR. COLLINS BUT HAS DECIDED NOTWITHSTANDING THE NUMBER AND STRENGTH OF THOSE REPRESENTATIONS TO LET THE DEPORTATION ORDER STAND STOP

DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS CANBERRA'

On 20 October 1982 a document was filed on behalf of the applicants with the Administrative Appeals Tribunal stating that the applicants applied pursuant to sub-s. 29 (1) of the Administrative Appeals Tribunal Act 1975 for a review of the Minister's 'decision to deport'.

On 28 October 1982 the Tribunal held that the terms of the telex of 21 September 1982 constituted a decision of the Minister not to revoke the deportation order of July 1980, but that this decision was not one that could be reviewed pursuant to s. 66E of the Migration Act 1958.

On 15 November 1982 the applicants appealed to this Court from the Tribunal's decision. On 17 November 1982 the first applicant filed an application for a stay of execution of the deportation order of July 1980, pending the determination of the appeal from the Tribunal's decision. On 17 November 1982 this Court dismissed that application. On 23 November 1982 the applicants filed an application in this Court for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of what is said to be the Minister's decision of 16 August 1982 and which was notified to the applicants on 21 September 1982 by the telex to which I have referred.

The decision which is said to be reviewable is:-

'Notwithstanding the number and strength of various representations made by and on behalf of the applicants the deportation order made in respect of the first applicant on the 4 July 1980 should stand.'

The applicants then sought a stay of execution of the deportation order of July 1980 under s. 15 of the Judicial Review Act. This application was dismissed by this Court on 26 November last. In the meantime the applicants' solicitor wrote a letter to the Minister on 22 September 1982 saying, omitting formal parts:-

'I advise that I act for Mr. Brett Anthony Collins on his appeal to the Federal Court concerning his deportation from this country.

My client has instructed me to write on his behalf to express his concern that he has not personally received from you a response to the representations made by him to you on 20th. May, 1982 and by others at later dates.

I advise that my client has received information that you have made a decision on his case and he wishes you to confirm this fact as well as advising the date of the decision and the reasons for such decision.'

On 15 October 1982 the Minister telexed the applicants' solicitor in these terms, omitting formal parts:-

'I REFER TO YOUR LETTER OF 22/9/82 REGARDING YOUR CLIENT MR BRETT ANTHONY COLLINS STOP I CONFIRM THAT I DECIDED ON 16/8/82 TO LET THE PRESENT LITIGATION WITH YOUR CLIENT RUN ITS COURSE STOP I DIRECTED THE DEPARTMENT TO HAVE THIS DECISION CONVEYED THROUGH COUNSEL TO YOUR CLIENT STOP IN SPITE OF THE NUMBER AND STRENGTH OF THE REPRESENTATIONS ON HIS BEHALF I BELIEVE YOUR CLIENT SHOULD LEAVE AUSTRALIA

JOHN HODGES

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS CANBERRA'

On 22 October 1982 the Department sent a telegram to the applicants'

solicitor in these terms, omitting formal parts:-

' I REFER TO YOUR LETTER OF 22 SEPT 1982 ADDRESSED TO THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS REGARDING YOUR CLIENT MR BRETT ANTHONY COLLINS STOP IT APPEARS FROM YESTERDAYS PROCEEDING IN THE FULL FEDERAL COURT THAT YOU REGARD THAT LETTER AS A REQUEST FOR A STATEMENT OF REASONS PURSUANT TO SECTION 13 OF ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 STOP ACCORDINGLY I GIVE YOU NOTICE ON BEHALF OF THE MINISTER AND IN ACCORDANCE WITH SECTION 13 (3) OF THAT ACT THAT YOU ARE NOT ENTITLED TO MAKE THAT REQUEST STOP

M J LAWLESS FOR SECRETARY DEPT OF IMMIGRATION AND ETHNIC AFFAIRS CANBERRA'

On 23 October 1982 the applicants' solicitor sent a telegram to the Minister as follows, omitting formal parts:-

'Re: Brett Anthony Collins Deportation Order. Application for Review filed today in Federal Court in respect of your decision under Section Five Administrative Decisions (Judicial Review) Act, 1977.

Please provide statutory reasons for your decision, together with material relevant to it under Section 13 of the said Act.'

The Minister then asked the applicants' solicitor to identify the decision referred to in the telegram. The applicants' solicitor replied by a telegram on 15 November 1982 identifying the decision as that of the Minister notified in his telexes of 21 September and 15 October 1982. On 1 December 1982 the Department sent a telex to the applicants' solicitor in these terms, omitting formal parts:-

'I REFER TO YR CABLE OF 25/11/82 TO THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS REQUESTING A STATEMENT OF REASONS FOR DECISION OF 16/8/82 IN RESPECT TO YR CLIENT MR COLLINS STOP ON 22/10/82, YOU WERE GIVEN STATUTORY NOTICE PURSUANT TO SECTION 13(3) OF THE ADJR ACT THAT YOU ARE NOT ENTITLED TO MAKE THAT REQUEST'

It is in these circumstances that the applicants seek an order that the Minister be ordered to provide his reasons, pursuant to s. 13 of the Judicial Review Act, for his decision of 16 August 1982 to which I have already referred.

Counsel for the applicants conceded that an order in the terms set out in the application could not be made and that the applicants were limited to seeking an order pursuant to para. 13 (4A) (b) of the Judicial Review Act declaring that the applicants were entitled to make the request made under sub-s. 13 (1) of that Act namely, a request 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 decisions.

The Minister was represented before me on the hearing of the s. 13 application by a solicitor who frankly told me that his instructions were to put one submission and one submission only to the Court namely, that the relevant decision of the Minister fell within the class of decisions referred to in para. (f) of Schedule 2 to the Judicial Review Act and was therefore not a decision to which s. 13 applied.

The class of decision mentioned in para. (f) is described in these terms:-

'(f) decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to, or may result in, the bringing of such proceedings for the recovery of pecuniary penalties arising from contraventions or enactments, and, in particular _

(i) decisions in connection with the investigation of persons for such contraventions;

(ii) decisions in connection with the appointment of investigators or inspectors for the purposes of such investigations;

(iii) decisions in connection with the issue of search warrants, Writs of Assistance or Customs Warrants under enactments; and

(iv) decisions under enactments requiring the production of documents, the giving of information or the summoning of persons as witnesses;'.

The question for determination is therefore whether the decision of the Minister on 16 August 1982 and notified to the applicants on 21 September 1982 that the deportation order of 4 July 1980 should stand, notwithstanding various representations which had been made to him on behalf of the applicants, is within para (f) of Schedule 2.

The purpose of paragraph (f) is plain. Proceedings in civil courts necessarily involve the making of many and diverse decisions by public servants and others under statutes, regulations, ordinances and instruments referrable to those proceedings. Parliament obviously, and rightly, thought it undesirable that persons who make decisions of this kind should be obliged to state their reasons for those decisions and the facts on which they are based.

The Minister's decision of 16 August 1982 under challenge in these proceeding was to decline to interfere with the deportation order of 4 July 1980. That decision could not in my view be characterized as one in connection with the institution or conduct of proceedings in a civil court or otherwise as a decision of the kind referred to in paragraph (f). It is true that the decision was made whilst proceedings relating to the deportation of the first applicant were pending before this Court namely, the appeal from the second decision of the Administrative Appeals Tribunal affirming the Minister's decision that the first applicant be deported from Australia. But the nexus between those proceedings and the decision was essentially only temporal. As no other objection to the making of an order under para. 13 (4A) (b) of the Judicial Review Act was raised on the Minister's behalf and, as I find this objection untenable, I see no reason not to make the order sought.

However, before parting with this matter I shall make the following observations. During the course of argument I raised various questions including the following:-

(a) whether the decision of the Minister of 16 August 1982 was 'a decision of an administrative character' within the meaning of that expression in the Judicial Review Act when essentially it was a decision of a negative nature not to revoke the deportation order of 4 July 1980;

(b) whether the application under the Judicial Review Act concerning the decision of 16 August 1982 was out of time and, as no application has been made to extend time, whether the Court could deal with the matter including this aspect of it, namely, the application under s. 13. The Judicial Review Act requires that an application for review be lodged within 28 days after the decision unless the time is extended;

(c) whether the applicants' request that the Minister furnish the requisite statement under s. 13 was made by the letter of 22 September 1982 or the telegram of 23 November 1982;

(d) if the request was made by the telegram of 23 November 1982, whether it was made within the time provided by s. 13 (see para. 13 (5) (a) ); and

(e) whether the second applicant is entitled in law to join with the first applicant in bringing this application under the Judicial Review Act and to make the request of the Minister under s. 13 which is the subject of the application before me.

The solicitor for the Minister told me that he had no instructions to deal with these questions, that it was a matter for the Court and that his instructions were confined to submitting that the decision was excluded from s. 13 by para. (f) of Schedule 2.

In these circumstances it seems inappropriate for this Court to itself embark on an investigation of these questions when the assistance of the solicitor for the Minister was confined to the question of the application of para. (f), especially as an order under s. 13 results only in the obligation of the Minister to furnish the reasons for and other information concerning his decision relevant to this application. I would add that I regard these questions which I raised in argument as open questions upon which I have reached no conclusion one way or the other.

I propose to make a few final observations. A great deal of publicity has attended the actions of the applicants in relation to the deportation order of July 1980 and subsequent proceedings in the Administrative Appeals Tribunal and this Court. The deportation order made in respect of the first applicant still stands notwithstanding the challenges made to it in the subsequent litigation. The applicants requested this Court in November 1982 to stay the execution of that deportation order. The Court refused to grant that stay. In the result, the Minister is at liberty to execute the deportation order whenever he wishes.

Nothing that I have said is, in any way, an expression of opinion as to the prospects of success of the applicants in the application for an order of review. In the light of the manner in which the application under s. 13 was conducted before me it is inappropriate to form any view as to the applicants' ultimate prospect of success on the hearing of this application, and I have formed none. All I have done is to hold that the applicants were entitled to request the Minister that he furnish a written statement setting out certain matters including the reasons for his decision. I have held this on the assumptions that the Minister made a decision on 16 August 1982 which is subject to review under the Judicial Review Act and that the applicants duly requested the Minister to furnish them with the requisite statements under s. 13. I made these assumptions because no submissions to the contrary were made on behalf of the Minister and the instructions of the solicitor for the Minister apparently did not extend to challenging those assumptions.

The Court orders that it be declared that the applicants were entitled to request the Minister for Immigrations and Ethnic Affairs to furnish them 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 of the Minister made on 16 August 1982 and notified to the applicants by telex addressed to their solicitor, received by him on 21 September 1982.

It was agreed by counsel for the applicants and the solicitor for the Minister that the costs of this application should follow the event. As the applicants have succeeded, the Court orders that the Minister pay to the applicants their costs of this application.