Re David John Wiggan v the Minister of Immigration and Ethnic Affairs [1988] FCA 79 (24 March 1988)

FEDERAL COURT OF AUSTRALIA

Re: DAVID JOHN WIGGAN
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WAG 102 of 1987
Constitutional Law - Administrative Law

COURT

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

CATCHWORDS

Constitutional Law - constitutional validity of s.12 of the Migration Act - powers with respect to aliens and immigration - deportation of "non-citizens" - meaning of "alien" - relevance of Australian Citizenship Act.

Administrative Law - recommendation of the Administrative Appeals Tribunal not followed - ultimate decision for the Minister's discretion - no breach of natural justice or procedural fairness - no irrelevant considerations taken into account - no relevant considerations omitted - no basis for review.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958

Judiciary Act 1903

Australian Citizenship Act 1948

Australian Constitution Act 1901

Acts Interpretation Act 1901

HEARING

ADELAIDE
24:3:1988

Counsel for the applicant: Mr C.J.L. Pullin

Solicitors for the applicant: Legal Aid Commission of Western Australia

Counsel for the respondent: Ms C. Francas

Solicitors 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 under the Administrative Decisions (Judicial Review) Act 1977 to review two decisions. The first was a decision made by the respondent by his delegate on 26 August 1985 to deport the applicant and the second was a decision made by the respondent on 22 June 1987 not to revoke the decision to deport after the Administrative Appeals Tribunal constituted by a Deputy President had by a decision dated 20 February 1987 remitted the matter to the respondent with a recommendation that the deportation order be revoked.

2. The grounds of the application after some amendments and deletions are as follows:

"1. (a) Section 12 of the Migration Act 1958 being
invalid, the Respondent or his delegate
Lionel Barrie WOODWARD did not have
jurisdiction to make the Deportation
Order.

(b) The Respondent or his delegate Lionel
Barrie WOODWARD had no power to make the
Deportation Order, the Applicant being no
longer subject to the Commonwealth powers
concerning migration.

(c) The respondent or his delegate failed to
take into account a relevant
consideration, namely, whether the
applicant had been absorbed into the
Australian community.

2. That a breach of the rules of natural justice
occurred in connection with the making of the
decision not to revoke the Deportation Order,
namely:

(a) The Respondent having determined to depart
from the recommendation of the
Administrative Appeals Tribunal, made on
20 February 1987, failed to afford the
Applicant with a further hearing in person
or an opportunity to make submissions as
to the matters and evidence to be
considered by the Respondent in reaching
his decision whether or not to affirm or
revoke the Deportation Order.

3. That the making of the decision not to revoke
the Deportation Order was an improper exercise
of the power conferred by the Migration Act,
in that the Respondent:

(a) Failed to take relevant considerations
into
account in the exercise of the power,
namely -

(i) The evidence adduced and the
submissions made by or on behalf of
the Applicant to the Administrative
Appeals Tribunal at the hearing on
27 and 28 January 1987, as
contained in the transcript of that
hearing, and the documents tendered
at that hearing.

(viii) That the Applicant had been
absorbed into the Australian
community.

(b) Took an irrelevant consideration into
account in the exercise of the power,
namely, that '... the Applicant committed
a savage and sustained attack on a victim
who, for the larger part of the time, was
unable to offer any resistance' - which is
not a fair and accurate summary of the
Applicant's crime, having regard to the
evidence given at the Applicant's trial
for murder and at the hearing before the
Tribunal."

Section 12 of the Migration Act 1958 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."

3. Since it was claimed in para. 1(a) of the grounds of application that s.12 was invalid as being beyond constitutional power it was ordered by French J. on 1 December 1987 that the applicant's solicitors give notice under s.78B of the Judiciary Act 1903 to the Attorneys-General of the States of Australia and of the Commonwealth and of the Northern Territory. It is proved by affidavit and exhibits that such notices were given on 4 December 1987 and that all the Attorneys-General responded to the letters and none wished to intervene.

4. It is conceded that the two decisions of which review is sought are administrative decisions made under an enactment and are susceptible to review under the Administrative Decisions (Judicial Review) Act.

5. The principal argument is the constitutional one. This is somewhat complicated by the fact that in 1984 the Australian Citizenship Act 1948 was amended but some of the amendments including the repeal of the definition of "alien" were not brought into force by proclamation until 1 May 1987. Something was made of this in argument but as will appear it is my view that the Australian Citizenship Act is for the purposes of this case irrelevant.

6. Relevant events in historical sequence are as follows:

22 May 1963 Applicant born in England

6 May 1974 Applicant arrived in Australia for the first
time

15 January 1978 Applicant finally returned from United Kingdom

after two return journeys there

20 March 1982 Applicant assaulted male victim who died on

following day

6 August 1982 Applicant convicted of murder

15 January 1983 Period of five years from last entry of

applicant into Australia expired

13 December 1983 Migration Act Amendment Act assented to

26 August 1985 Order for deportation of applicant made under

s.12 of Migration Act

20 February 1987 Administrative Appeals Tribunal (Deputy

President Nicholson) remitted matter to
respondent with a recommendation that the
decision to deport be revoked

1 May 1987 Amendments to Australian Citizenship Act
proclaimed

22 June 1987 Respondent Minister decided not to revoke the

deportation order previously made.

7. The constitutional argument had two limbs. First it was said that the only constitutional powers enabling the Commonwealth Government to pass valid legislation dealing with deportation were contained in placita of s.51 of the Australian Constitution Act 1901 nos.(xix) dealing with naturalisation and aliens and (xxvii) dealing with immigration and emigration. It was argued that whereas these two placita were the sources of constitutional power to legislate to deport aliens and immigrants nowhere in the constitution was power given to deport "non-citizens" as referred to in s.12 of the Migration Act.

8. Prior to amendment in 1983 which came into operation on 2 April 1984 s.12 of the Migration Act dealt with the deportation of aliens convicted of crimes and s.13 dealt with the deportation of immigrants in respect of matters including crimes occurring within five years after entry into Australia. The Migration Act then contained a definition of alien which means a person who is not (a) a British subject; (b) an Irish citizen; or (c) a protected person.

9. It is said that whereas placitum (xix) no doubt provided constitutional power to pass s.12 of what I may call the old Act and placitum (xxvii) no doubt provided constitutional power to pass s.13 of the old Act power is nowhere given in the Constitution to deal with non-citizens defined in the Migration Act as "a person who is not an Australian citizen". It follows therefore, it is said, that s.12 is constitutionally invalid.

10. This argument is met in two ways. First it is said that all "non-citizens" are either aliens or immigrants and that the constitutional validity of s.12 is soundly based on either placitum (xix) or placitum (xxvii) or both. Whereas it is probably true that the vast majority of persons coming to Australia from elsewhere for the first time are either aliens or immigrants and that legislation to deport these persons is constitutionally valid it is pointed out that for the purposes of deportation at least immigrants do not always retain the status of immigrants but may lose that status by becoming members of the Australian community. See Ex Parte Walsh and Johnson in re Yates [1925] HCA 53; (1925) 37 CLR 36.

11. It is conceded on behalf of the respondent that there are three broad categories into which almost all recent arrivals into this country fall. They are either aliens, immigrants or persons who were once immigrants but have ceased to be so by reason of becoming absorbed into the Australian community. It is argued that there is no constitutional power to deport this last class of persons and with this argument I agree unless as will appear the person is also an alien.

12. This does not however in my view make s.12 constitutionally invalid as a whole. The power to deport aliens and immigrants is saved in my view by s.15A of the Acts Interpretation Act 1901 which is as follows:

"15A. Every Act shall be read and construed
subject to the Constitution, and so as not to
exceed the legislative power of the Commonwealth,
to the intent that where any enactment thereof
would, but for this section, have been construed
as being in excess of that power, it shall
nevertheless be a valid enactment to the extent to
which it is not in excess of that power."

13. Section 12 should be regarded as a valid enactment insofar as the power to deport is used with respect to aliens or immigrants.

14. The question which remains under this head is was the applicant an alien, an immigrant or an "absorbed" former immigrant?

15. The deportation order was made on 26 August 1985 under s.12 of the Migration Act set out above. The applicant is certainly a non-citizen who was convicted before the commencement of the section of a relevant crime. The previous Migration Act which was repealed in December 1983 contained definitions both of "alien" and of "immigrant" but it seems to me that these definitions are irrelevant for present purposes. The Australian Citizenship Act prior to 1 May 1987 contained a definition of "alien" but not of "immigrant". This definition is contained in s.5(1) of the Australian Citizenship Act as follows:

"5(1) In this Act, unless the contrary intention
appears -
'alien' means a person who does not have the
status of a British subject and is not an Irish
citizen or a protected person;"

16. This definition is however prefaced by the words "In this Act unless the contrary intention appears". I am not now considering the Australian Citizenship Act but rather the Migration Act and whether the constitutionality of a deportation order may be supported upon the ground that the deportee is an alien or an immigrant. It seems to me therefore that the definition of "alien" contained in the Australian Citizenship Act which was in force when the deportation was made but not when the decision not to revoke was made is also irrelevant for present purposes.

17. As I have said prior to 2 April 1984 the Migration Act contained definitions of both "alien" and "immigrant". The Migration Act which came into operation on that date is described in the long title as "an Act relating to the entry into, and presence in, Australia of aliens and the departure or deportation from Australia of aliens and certain other persons". Since April 1984 the Act has contained no definition of "alien" or "immigrant" but simply of "non-citizen".

18. If, as I think, there is no constitutional power to deport "non-citizens" as such, power if it exists, must be found elsewhere. There is undoubted power to deport aliens and non-absorbed immigrants.

19. An alien remains an alien until he becomes a citizen and no amount of absorption into the Australian community will remove his alien status whatever effect it may have on his status as an immigrant (Pochi v. Macphee [1982] HCA 60; (1982) 151 CLR 101 per Gibbs C.J. at 111).

20. If an alien remains an alien until he becomes a citizen and if, as I think, his status as an immigrant whether absorbed or not is now irrelevant for the purposes of deportation, the only question remaining is whether or not the applicant was at relevant times and is an alien for the purposes of the Migration Act whatever his status may have been for the purposes of any other Act.

21. For the purposes of considering the meaning of the word "alien" when considering the Migration Act it is necessary to go to dictionaries. The Shorter Oxford English Dictionary (3rd Edition) has "1. a stranger, a foreigner 2. a resident foreign in origin and not naturalised". The Macquarie Dictionary has "1. one born in or belonging to another country who has not acquired citizenship by naturalisation and is not entitled to the privileges of a citizen".

22. Save for the fact that the applicant was no doubt entitled to some of the privileges of a citizen it seems to me that in accordance generally with these two definitions the applicant should be regarded at relevant times as an alien. This being so there was constitutional power to deport him pursuant to s.12 of the Migration Act.

23. The remaining grounds are less important but they were well and carefully argued by counsel on both sides and I discuss them briefly. I have already disposed of grounds 1(a) and 1(b).

24. Ground 1(c) has in my view no relevance. It would only be relevant if it were necessary to determine whether or not the power to deport the applicant depended upon him being an immigrant which he once most certainly was but which by the time of deportation he may well not have been.

25. Ground 2(a) is, as it seems to me, governed by my decision in Haoucher v. Minister of State for Immigration and Ethnic Affairs (unreported 9 February 1988). In the last paragraph of his reasons for decision which it may be said was not only against the recommendation of the Administrative Appeals Tribunal ("the Tribunal") but also against the recommendation of some at least of the departmental officers who dealt with the matter the Minister said "Although I would not disagree with the Tribunal in regard to its findings of fact, I took the view that the Tribunal gave excessive weight to the hardship which would be suffered by the applicant and his family if he were deported, and did not have sufficient regard to the interests of the Australian community which may be seriously harmed by allowing the applicant to remain in the community".

26. In Haoucher I said "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."

27. In the case at hand I can see no reason to depart from the view I then expressed. The ultimate decision is a matter for the Minister's discretion and save possibly in the case where he takes into account new facts unknown to the applicant I do not consider that the Minister has any obligation based on natural justice or otherwise to give the applicant another opportunity to be heard if he is considering not accepting the recommendation of the Tribunal.

28. This ground fails.

29. Ground 3(a)(i) complains that when considering the matter of the applicant's deportation in accordance with the recommendations of the Administrative Appeals Tribunal the respondent Minister did not apparently consider evidence heard by and the submissions made to the Tribunal. The only document to do with the hearing before the Tribunal considered by the respondent Minister when reconsidering the matter in accordance with the Tribunal's recommendations was that containing the decision and reasons of the Tribunal. In Haoucher (supra) I said that the obligation of the Minister was "seriously to consider the recommendations of the Tribunal and give them proper weight". I adhere to that view and am unable to find that there is any obligation upon the Minister either under the head of natural justice or any other head to read all the evidence before the Tribunal and the addresses to it in order, in effect, to check whether the Tribunal has done its work adequately. The Minister must consider seriously any recommendations of the Tribunal but is not required by law in my view to read the evidence or the submissions unless perhaps something in the reasons of the Tribunal requires amplification or explanation and nothing of the sort is suggested here. This ground also fails.

30. Ground 3(a)(viii) in the event must fail. If however it had been necessary to determine whether or not the applicant was an immigrant it would have been necessary for the Minister or his delegate to consider the question of the applicant's absorption into the Australian community which apparently was not done.

31. Ground 3(b) in my view lacks substance. One of the documents considered by the Minister was the summing up of the trial judge Olney J. of the Western Australian Supreme Court. It seems to me with respect that the quotation from the Minister's reasons for decision is a very fair description of what the trial judge at least considered the applicant had done. Even if it were not so it is an error to equate inaccuracy with irrelevancy. This ground also fails.

32. The application is dismissed with costs.