Re Majed Mahmoud Haoucher v the Minister of Immigration and Ethnic Affairs [1988] FCA 21 (9 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: MAJED MAHMOUD HAOUCHER
And: THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WAG76 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Forster J.(1)

CATCHWORDS

Administrative Law - Application to review decision of the Minister to affirm deportation order subsequent to recommendation of the Administrative Appeals Tribunal that the deportation order be revoked - interaction of the Migration Act and the stated Government criminal deportation policy - ultimate decision in the hands of the Minister - no breach of natural justice or procedural fairness - no irrelevant considerations taken into account - no failure to take into account considerations which the Minister was bound to consider - decision not patently unreasonable - no error of law.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958

HEARING

ADELAIDE
9:2:1988

Counsel for the applicant : Mr S. Owen-Conway

Solicitor for the applicant : Mazza McCallum & Robinson

Counsel for the respondent : Mrs P. Flemming Q.C. with Ms C. Francas

Solicitor for the respondent : Australian Government Solicitor

ORDER

The application be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an application made pursuant to the Administrative Decisions (Judicial Review) Act 1977 to review the decision of the respondent made on 12 May 1987 by which he affirmed an order for the deportation of the applicant made by the respondent's delegate one Harris on 19 August 1986. The applicant applied in the first instance to the Administrative Appeals Tribunal ("the Tribunal") for a review of the original decision to deport of 19 August 1986. On 29 January 1987 the tribunal remitted the matter to the respondent with a recommendation that the deportation order be revoked. The respondent Minister did not accept that recommendation and by his decision of 12 May 1987 affirmed the original decision to deport which had been made in the first instance on his behalf by his delegate Harris. The deportation order was made under s.12 of the Migration Act 1958 which is as follows :

"12. Where -

(a) a person who is a non-citizen has, either
before or after the commencement of this
section, been convicted in Australia of an
offence;

(b) at the time of the commission of the offence
the person -

(i) was not an Australian citizen; and

(ii) had been present in Australia as a
permanent resident for a period of less
than 10 years or for periods that, in
the aggregate, do not amount to a period
of 10 years; and

(c) the offence is an offence for which the
person was sentenced to death or to
imprisonment for life or for a period of not
less than one year,

the Minister may order the deportation of the
person."

2. The applicant, a non-citizen of Lebanese origin, was convicted on 29 May 1985 at the Perth District Court for possession of cannabis resin with intent to sell or supply. He was sentenced to five years imprisonment with a minimum to be served of two and a half years. This sentence was reduced on appeal to the Supreme Court to three years imprisonment with a minimum of eighteen months. This conviction formed the basis of the original decision to deport.

3. In his application for review the applicant raised six of the grounds set out in s.5(1) of the Administrative Decisions (Judicial Review) Act pleaded as follows :

"1. That in making the decision to affirm an
order for the Applicant's deportation, the
Minister failed to observe the rules of natural
justice;

2. The procedures that were required by Law to
be observed in the connection with the making of
the decision were not observed;

3. That the making of the decision was an
improper exercise of the power conferred by the
enactment in pursuance of which it was purported
to be made;

4. That the decision involved an error of Law;

5. That there was no evidence or other material
to justify the making of the decision;

6. That the decision was otherwise contrary to
Law."

Particulars were later given of grounds 2, 3, 4, 5 and 6.

4. The principal ground argued was ground 1. The basis of the argument was that for the respondent Minister to act contrary to the recommendation of the Tribunal without giving the applicant a further opportunity to be heard involved a denial of natural justice to the applicant. It is pointed out that the present Government's criminal deportation policy tabled in Parliament on 4 May 1983 provides that "recommendations of the Administrative Appeals Tribunal should be overturned by the Minister only in exceptional circumstances and only when strong evidence can be produced to justify the decision". It is argued that this policy and the fact that very few recommendations of the Tribunal have been overturned since 1983 give rise to a reasonable expectation in persons such as the applicant that the recommendation of the tribunal will be followed. The argument goes on that in the rare case in which the Minister decides not to accept and act upon the recommendation of the Tribunal natural justice or "procedural fairness" demands that the applicant be warned of the possibility of such a decision and the reasons for it and be given an opportunity to make further submissions to the Minister in an endeavour to persuade him not to reject the recommendation of the Tribunal.

5. In order that this submission may be properly understood it is necessary to emphasise the respective positions of the Tribunal and the Minister. Pursuant to s.66E(3) of the Migration Act the Tribunal "shall after reviewing a decision of the Minister under s.12 of the Act either affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the tribunal". The Tribunal lacks power to overrule the decision of the Minister but may only make recommendations if it is not disposed to affirm the decision. One must assume that it was as a matter of deliberate choice that the Parliament did not give the Tribunal power to overturn the Minister's decision but left the ultimate decision in the hands of the Minister. The Minister's obligation in the terms of the Migration Act is to reconsider the matter "in accordance with any recommendations of the Tribunal".

6. So far as the stated Government policy is concerned this in my view has not been drawn with the precision to be expected in an Act of Parliament and is directed only to the circumstance in which the Minister disagrees with the Tribunal on a matter of fact when the policy requires there to be strong evidence to justify the decision to overturn the decision on a matter of fact. The policy in this regard appears to be directed to the sort of situation which occurred in Barbaro v. Minister for Immigration and Ethnic Affairs [1982] FCA 269; (1982) 46 ALR 123. In the present case the Minister accepted the Tribunal's findings of fact and specifically said that he did so but he disagreed with certain opinions expressed by the Tribunal. Matters of opinion are just that and the Minister is entrusted by the Migration Act with the discretion to act in accordance with his opinion. The Government policy speaks of overturning decisions of the Triubnal "only when strong evidence can be produced to justify the decision". Unless the Minister's opinion is without basis and such that no reasonable person could hold it it is my view that it is inappropriate to speak of "strong evidence" being produced to justify what is a matter of opinion. Taking the matter thus far there has in my opinion been no breach of stated Government policy. It is also pointed out that para. 4 of the policy pamphlet says in the last sentence "Furthermore, it is the policy of the Government that when the Minister decides to deport a person contrary to a recommendation of the Tribunal, the Minister will table in the Parliament at the first opportunity a statement of his/her reasons for doing so". It is conceded that the Minister's reasons have not been so tabled in the Parliament. This is no doubt a breach of stated policy but it being something required to be done after the decision complained of was made is in my view irrelevant for present purposes.

7. It is my opinion therefore that there is no relevant breach of Government policy whether or not the applicant was entitled to have an expectation that it would be adhered to.

8. Government policy aside I do not consider that any considerations of natural justice or procedural fairness require the Minister when he decides not to accept the opinion of the Tribunal to give the applicant an opportunity to be heard except possibly when the Minister disagrees with the Tribunal on a matter of fact or finds some fresh fact to support his decision. The discretion as to whether to deport or not is given to the Minister, not to the Tribunal. The Minister has to make up his mind and form his opinion on the basis of the facts presented to him in submissions and reports and in this case in the reasons for judgment of the Tribunal also. In the absence of any departure by the Minister from these primary facts which in this case were all known to the applicant and in the absence of reliance on any other facts unknown to the applicant it is my view that no consideration of procedural fairness requires the Minister to give the applicant another opportunity to be heard simply because the Minister reaches an opinion different to that of the Tribunal.

9. Under the general heading of "natural justice" or "administrative fairness" it is also argued that pursuant to s.66E(3) of the Migration Act after a recommendation has been made by the Tribunal it is the obligation of the Minister to reconsider the matter in accordance with the recommendation of the Tribunal. This, it is said, requires the Minister to reconsider the decision in the light of the recommendation. No doubt this is so but all that it means is that the Minister must seriously consider the recommendation of the Tribunal and give it proper weight. There is considerable evidence from the statement of reasons that the Minister has done this.

10. I do not find it necessary to decide whether or not if the Minister took a different view of the facts from that taken by the Tribunal or took into account some fresh facts without in either case any opportunity being given to the applicant to make further submissions a denial of natural justice would occur. I incline to the view that it would and this view incidentally accords with the decision of Smithers J. in Barbaro (supra).

11. The ground based on a denial of natural justice fails.

12. The second ground in the application was absorbed in argument into the first ground with the exception of a complaint in the particulars that the Minister had before him when making his decision three submissions which the applicant did not know about and which he therefore had no opportunity to answer. The submissions referred to are -

(1) from Mr A.C. Harris dated 28 April 1987

(2) from Mr Daszczyk dated 16 April 1987

(3) from Mr A.E. Faubel dated 19 March 1987

13. These three men were officers of the Department of Immigration and Ethnic Affairs. The submissions of Daszczyk and Faubel recommended to the Minister that he should accept the recommendation of the Tribunal and quash the deportation order. I do not consider that for the Minister to "have regard" to these submissions without the applicant knowing of them constituted any sort of a denial of natural justice or procedural unfairness to the applicant. The submission of Mr Harris I consider next. A careful reading of this submission reveals that no recommendation one way or the other is made as to what the Minister might do with respect to the recommendation of the Tribunal. It merely sets out what Harris had put to the Minister before when he made a deportation order and contrasted it in a carefully balanced way with what the Tribunal had said in its judgment. No new facts are submitted to the Minister and no opinion or recommendation is expressed. Whether this matter be considered under the head of non observation of procedures or denial of natural justice it is my view that no reviewable error is revealed in the consideration by the Minister of these three reports.

14. In order to deal adequately with ground 3 it will be necessary to set out the particulars given -

"GROUND 3
The making of the decision was an improper
exercise of the power conferred by the enactment
in pursuance of which it was purported to be made

(a) the Minister took into account the following
irrelevant consideration:
(i) The fact that the Applicant was able and
willing to return to Lebanon in 1978 and
1980.

(b) The Minister failed to take into account or,
alternatively, to properly take into account
the following relevant considerations:

(i) There were no exceptional
circumstances present and no strong
evidence produced to justify his
decision to reject the recommendation
of the Administrative Appeals Tribunal
which decision was contrary to the
Australian Government's criminal
deportation policy announced on the
4th May 1983;

(ii) The offence of which the Applicant was
convicted was, properly construed, not
the most serious of its kind and did
not involve 'hard' drugs. The
Applicant was a small time distributor
of cannabis resin. The Minister's
characterisation of the offence as 'a
serious one' in the circumstances
suggests a degree of heinousness which
did not in fact exist notwithstanding
the sentencing remarks of the District
Court of Western Australia who
sentenced the applicant, which remarks
should have been read in the light of
the decision and reasons of the Court
of Criminal Appeal of the Supreme
Court of Western Australia which
reduced the sentence to which the
applicant was subjected;

(iii) The Applicant's conviction falls
outside the wording of the example of
serious drug offences in the
Ministerial statement of the
Australian Government's criminal
deportation policy announced on the
4th May 1983 and in the circumstances
the Minister was obliged in law to
have regard and not to ignore or
depart from such policy when making
his decision;

(iv) There was no evidence or,
alternatively, no sufficient evidence
to suggest that the Applicant was a
person with a serious risk of
recidivism and on the contrary there
was evidence which tended to establish
that the Applicant was unlikely to
become a recidivist;

(v) The changed situation in Lebanon today
and the serious risk to life and limb
to which the Applicant would be
exposed if deported to the Lebanon;

(vi) The fact that the Applicant's
contribution to the Australian
community cannot be measured only in
terms of his capacity to engage in
regular employment. The Minister
should have taken all relevant
considerations into account when
considering the Applicant's
contribution to the Australian
community but he failed to do so;

(vii) The fact that in the circumstances of
the case it was not proper to make a
decision to affirm the deportation
order in the absence of strong
evidence to justify such a decision;

(viii) The fact that there was no evidence of
the Applicant having seriously harmed
the Australian community in the past
or that the Applicant is likely to
seriously harm the Australian
community in the future;

(ix) The fact that the Applicant is likely
to suffer serious hardship by reason
of each of the matters pleaded in
paragraphs 1 to 5 inclusive at pages 1
and 2 of the Application for an Order
to Review.

(c) The exercise of the power was in the
circumstances so unreasonable that no
reasonable person could have so exercised the
same because on the material before him the
only reasonable decision open to the Minister
was to revoke the said deportation order.

(d) The power was exercised in such a way that it
constituted an abuse of the power by reason
of it being a discriminatory use thereof."

15. Dealing with para. 3(a) it cannot be said that the fact that the applicant was able and willing to return to Lebanon in 1978 and 1980 was an irrelevant consideration and the weight to be attached to it by the Minister was entirely a matter for him.

16. As to para. 3(b) it must be noted at the outset that "(t)he ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision". (Minister for Aboriginal Affairs and Another v. Peko Wallsend Ltd and Others [1986] HCA 40; (1986) 66 ALR 299 at 308 per Mason J.). I deal with the sub-paras of para. 3(b) seriatim.

(i) This matter has already been dealt with to some extent

above. Whether or not there were exceptional
circumstances sufficient to justify a departure from
Government policy, if indeed there were such a
departure, was a matter entirely for the Minister.

(ii) Whether or not the applicant's conviction should be

regarded as a serious one was once again a matter of
opinion. It was a matter for the Minister to decide
this. It cannot be said that the Minister failed to
take into account the degree of seriousness of the
offence.

(iii) The comment in (ii) above applies equally to this

sub-ground.

(iv) This contention is just not accurate. A formal warning

was given to the applicant on 9 June 1981 that further
convictions might lead to deportation. The applicant
acknowledged this warning in writing but was convicted
of six offences thereafter including the conviction
which formed the basis for the deportation order under
s.12 of the Migration Act. It is true that three of
these convictions are for offences which could be
regarded as trivial but it seems to me that the
applicant has already demonstrated that there is a
serious risk of recidivism.

(v) I do not consider that this is a matter which the

Minister was bound to consider. There was no evidence
that Lebanon would be any more dangerous for the
applicant than for any other Lebanese.

(vi) The applicant's contribution to the Australian community

up to the time he was ordered to be deported was, so far
as the evidence goes, negligible and to some extent
negative. The Minister considered the matter of the
applicant's contribution to the Australian community
during his residence in the country. I consider that
he correctly assessed it but even if he did not there is
not, in my view, a reviewable error.

(vii) This matter has already been dealt with.
(viii) This was not in my view something which the Minister was

bound to take into account even if the facts stated are
accurate which I rather doubt.

(ix) The matter of hardship to the applicant was considered

by the Minister. It was also referred to in the
submissions of Harris, Daszczyk and Faubel and the
reasons for the decision of the Tribunal to all of which
the Minister says that he had regard. The weight to be
given to this matter was a matter entirely for the
Minister.

17. As to para. 3(c) of the particulars this is simply another way of saying that the decision of the Minister was so wrong as to reveal its incorrectness on its face. I can only say that whereas there may be some room for argument as to the objective correctness of the Minister's decision it is plainly not so incorrect as to demonstrate a reviewable error under the ground stated or any other available ground. The decision of the Minister was in my view clearly within the proper bounds of his discretion and cannot be said to be so unreasonable that no reasonable person could have made it.

18. Counsel for the applicant explained para. 3(d) by saying that the decision was discriminatory because it totally disregards the recommendation of the Tribunal. I am not sure that I understand this but but in any event counsel conceded that the ground was simply another way of saying something which he had already said and I disregard this ground.

19. The particulars in support of ground 4 start with a short legal submission that wrong findings of fact may amount to errors of law. Six separate "findings of fact" by the Minister are said to be contrary to findings of fact made by the Tribunal notwithstanding the Minister's statement in his reasons that he adopted the findings of fact made by the Tribunal. It is said that there was no evidence to support such findings of fact or, alternatively, so far as such findings constituted inferences drawn from other facts found, there was no evidence to support the drawing of such inferences, or, alternatively, the inferences were in the circumstances unreasonable. In the circumstances it is said that each of the "findings" constituted an error of law.

20. The answer to all this is that each of the six "findings" referred to in the particulars are matters of opinion based on the findings of primary fact made by the Tribunal. In each case there is sufficient basis for the opinion to make them possible to be held by a reasonable person. This being so no error of law is demonstrated. The Migration Act gives the Minister a discretion as to whether or not to accept the Tribunal's recommendation and he may perfectly properly disagree with opinions expressed by the Tribunal provided his disagreement is not so unreasonable as to demonstrate error. In this case the Minister's disagreements with the opinion of the Tribunal are in my view not so unreasonable. I should emphasise, in case I need to, that I do not say whether the recommendation of the Tribunal or the decision of the Minister is in my view correct but simply whether or not any error in the making of the Minister's decision is demonstrated such as should lead to his decision being reviewed.

21. Ground 4 fails.

22. The particulars pleaded for grounds 5 and 6 go over old ground which has already been dealt with and I find it unnecessary to deal with the matters raised again.

23. For all of these reasons the application of the applicant fails and is dismissed with costs.