Re Lee Georgina Gillespie v Minister of Immigration and Ethnic Affairs [1984] FCA 189 (17 July 1984)

FEDERAL COURT OF AUSTRALIA

Re: LEE GEORGINA GILLESPIE
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G.208 of 1984
Administrative Law

COURT

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

CATCHWORDS

Administrative Law - Immigration - Deportation of non-citizen following criminal convictions - Decision of Administrative Appeals Tribunal to affirm Minister - Appeal to Federal Court - Application to stay operation of order.

HEARING

SYDNEY
17:7:1984

DECISION

The application before the court today is for an order pursuant to section 44A(2) of the Administrative Appeals Tribunal Act to stay the operation of an order made by the respondent, the Minister for Immigration and Ethnic Affairs, whereby he ordered the deportation of the applicant, Lee Georgina Gillespie, from Australia to New Zealand.

2. The deportation order was made by the Minister pursuant to the terms of section 12 of the Migration Act 1958, as it then stood, and was based upon the fact that the applicant had been sentenced to a term of imprisonment exceeding 12 months. The applicant appealed to the Administrative Appeals Tribunal which was constitued by Mr Deputy President, I R Thompson. Mr Thompson delivered his decision and the reasons therefor on 1 June last.

3. He affirmed the decision of the Minister to deport the applicant, and in his reasons he canvassed the circumstances surrounding the applicant's life in Australia since she arrived in November 1976 up until the hearing before him. I do not propose to go to the facts determined by the Deputy President, because it is not necessary for my conclusion in relation to the current application.

4. The applicant has appealed to this Court against the decision of the Deputy President, and it would be necessary for that matter to be determined by a full bench of this Court. The appeal to this Court from a decision of the Administrative Appeals Tribunal is, of course, limited to a question of law (see section 44 of the Administrative Appeals Tribunal Act 1975). The question therefore arises as to whether there is disclosed an arguable case that the learned Deputy President erred in law in the conclusion which he reached.

5. The court is in no way concerned with the views formed by the tribunal on matters of fact, or as to the weight which he gave to particular factors in his ultimate conclusion, and it is not for the court to form a view as to whether, in the end, it would be desirable or undesirable for Miss Gillespie to be deported. The only question is whether the Deputy President has arguably erred in law.

6. I take the view that if the applicant can satisfy me on this application that there is a reasonably arguable case that the Deputy President erred in law, then this would supply a sufficient justification for staying the operation of the Minister's decision until the matter can be dealt with by a full court. If, on the other hand, there is no arguable case, then it would be an incorrect exercise of discretion to stay the operation of the order.

7. For this reason I have invited Mr Purves to address me on the points of law which his client seeks to raise in the appeal so as to ensure that I understand their nature and strength. Although the notice of appeal refers to six grounds of appeal, they really boil down to two matters which I will discuss separately. Each is within a small compass.

8. In paragraph 26 of his reasons the Deputy President expressed the view that the risk of recidivism by the applicant "is low". He gave reasons for this and in particular referred to evidence given on behalf of the applicant as to her non-involvement in drug-related offences, or indeed any other criminal offences, since September 1980 and this includes of course the period since she was released from prison. He made a finding, which was at least partly based upon psychiatric evidence, which he accepted, that the applicant has now matured and that in doing so she has come to realise the self-destructive nature of her previous lifestyle and has foresworn it.

9. He pointed out that the period since her release from prison has been short and that during that time the applicant has known that it is necessary for her to behave in an exemplary manner if she is to stand any chance of not being deported. He concluded this discussion by the following sentence:

"So, although it is likely that she has

genuinely resolved never to resume her old
lifestyle, it is not possible to say that
there is no risk whatsoever of her doing so".

10. I asked Mr Purves to give me his submission as to what was meant by the term "her old lifestyle". He indicated that this term at least includes contact with people in the drug trade, from which contact in the past it appears the offences had arisen. I agree with this construction of the reasons for decision. I think it follows that the Deputy President did accept the evidence of the applicant, supported as it was by other witnesses called on her behalf, that she had resolved not to be involved in drug offences in the future or to be in such contact as was likely to cause her involvement in offences.

11. However, the Deputy President went on to make the statement that it is not possible to say that there is no risk whatsoever of such a resumption. Mr Purves does not complain of this statement because he says that it is a statement which is true of anybody. His complaint, as I understand it, is that the Deputy President set for himself the test of whether it was possible to say that there was no risk whatever of the applicant resuming her old lifestyle and that having found that he could not be so satisfied, that this was a conclusion to her detriment. Perhaps another way of putting it is that he tested the matter of recidivism against a standard of total certainty, and having held, as was inevitable, that there could never be total certainty, he determined that question against her.

12. I cannot read the paragraph in the way contended for by Mr Purves. It seems to me that the Deputy President made it very clear that on the issue of recidivism he found for the appellant. He started the critical paragraph, paragraph 26, by a clear finding that the risk of recidivism was low. As one can never have 100 per cent certainty, this was as favourable a finding as one could hope to achieve. He then went on to give reasons for this which included not only reference to her way of life in recent years but also her increasing maturity and her own evidence as to a determination not to resume her old lifestyle in the future.

13. It seems to me that he accepted the appellant's case all the way on this issue. All that he did in the last part of the last sentence of paragraph 26 was to add the caveat that one could never be totally certain. I can see no error in law in making that observation. All that the Deputy President was doing was putting his finding into context and pointing out something which Mr Purves accepts was inevitable. I do not read the Deputy President as having set for himself the test as to whether there was total certainty and, having reached a conclusion against the appellant on that test, having taken that matter into account against her. On the contrary, it seems to me that on the issue of recidivism he was in favour of the appellant and he took that matter into account in her favour.

14. The second matter which is relied upon arises out of some words used in paragraph 25 of the reasons. In that paragraph the Deputy President referred to the role of the appellant in relation to the importation of drugs. He put her involvement in heroin importation into context by pointing out that she had played no active part in the importation of heroin. In contrast, she had played an active party in the importation of cannabis. He pointed out that her involvement was for financial gain and not because of any wish or need to obtain drugs for her own use. He then concluded his discussion with this sentence:

"Her offence must, therefore, be treated as
serious, so that deportation is appropriate
unless there are strong reasons why the
applicant should not be deported".

15. In paragraph 27 of his reasons the Deputy President referred to a passage in the decision of Davies J, sitting as President of the tribunal, in Re Winthrop and Smith v Minister for Immigration and Ethnic Affairs (1980) 2 ALD 873 at p 877.

16. In that passage his Honour discussed the matter of deterrent and concluded his discussion by referring to a view which he had taken in past cases in respect of immigrants from New Zealand who offended against the laws of this country, namely, they "should be deported unless there are quite strong reasons why the deportation order should not be made".

17. The Deputy President went on to observe that Davies J had stressed that each case must be considered on its merits and that the decision in each must be dependent on its own particular facts. The Deputy President followed that course and in his reasons he canvassed a number of matters, some of them favourable to the appellant and some of them unfavourable, which he thought ought to be taken into account in reaching an ultimate conclusion. In the result, as I have said, he reached a conclusion unfavourable to the appellant and therefore affirmed the Minister's decision. Also as I have said, the question of the weight to be ascribed to the various factors mentioned by the Deputy President is not a matter which arises for consideration in this Court.

18. The complaint made by the appellant in respect of paragraph 25 of the reasons is that the Deputy President used the words, "strong reasons" when posing the test as to the circumstances under which the applicant should not be deported whereas Davies J had used the words, "quite strong reasons". It was suggested that the term, "quite strong" is more limited than, "strong" so that the Deputy President set against the applicant a higher standard of demonstration of reasons than had been set by Davies J and that he thereby fell into an error of law.

19. It seems to me that it is not legitimate to take a phrase from a judgement and construe it as if it were a statute so that if, in a subsequent case, slightly different language is used, it follows that an error of law has occurred. I think that one has to look at the whole of the passage in the prior authority to see what is being said and one has to compare that with the approach taken in the instant case. I have considerable doubt as to whether in content the term, "quite strong" should be treated as meaning anything different from "strong". But whether or not in some contexts this may be so, in the present context I do not think that it can be said that the approach taken by the Deputy President differs from the course which was adopted by Davies J and in respect of which no complaint is now made in this Court.

20. In each case the Tribunal gave weight to the nature of the offences but went on to consider the whole of the circumstances of the applicant in order to determine whether the deportation order should be upheld. The nature of the offences and the risk of recidivism and the need to deter other immigrants from breaking the laws of this country were all matters properly to be taken into account in favour of deportation but they were by no means the end of the case.

21. It seems to me that the Deputy President in this case faithfully followed the course adopted by Davies J in Re Winthrop and Smith and, indeed, adopted by other members of the Tribunal in other cases. I see no error in law in the approach taken and I do not think that in its context it can reasonably be said that there was an error in law because of the omission of the word, "quite".

22. As I have said, I would be disposed to grant a stay of the order if I thought that there was a reasonably arguable case in favour of the proposition that the Tribunal had erred. My feeling in that regard is enhanced by the circumstance that it appears there would be no disadvantage to Australia if there was some delay in the deportation being effected. However, I do not think that it can be said that there is any reasonably arguable case on the appeal and in those circumstances the application should be refused.