Tagle v. Minister for Immigration and Ethnic Affairs

(1983) 46 ALR 379

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(Judgment by: Keely J)

Between: Emma Estrada Tagle
And: Minister for Immigration and Ethnic Affairs

Court:

Judge:
Keely J

Subject References:
Administrative Law

Judgment date: 22 March 1983

Melbourne

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Judgment by:
Keely J

1. On 17 December, 1982 a delegate of the respondent Minister for Immigration and Ethnic Affairs (the delegate) made a decision to order the deportation of Emma Estrada Tagle (the applicant) under s. 18 of the Migration Act 1958. The applicant challenged the decision in proceedings brought under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) by application filed 23 December, 1982. At the end of the hearing on Thursday last, 17 March, 1983, I made an order setting aside the delegate's decision, without waiting for the preparation of these reasons for judgment. I followed that unusual course because the applicant, who had been arrested on 7 December, 1982, was still being detained in custody at Pentridge Gaol and the respondent's counsel informed the court that, if the court made an order setting aside the delegate's decision, the applicant would be released - subject to certain conditions.

2. The attack upon the deportation order was made on a number of grounds. One was that there had been a breach of the rules of natural justice in connection with the making of the order to deport the applicant. The submission advanced in support of this ground was very brief. Reference was made to the judgment of the Full Court in Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 40 A.L.R. 341. In that case Bowen C.J. and Franki J. said:

(at pp. 347-8)

"It may be argued that a majority of the High Court comprising Barwick CJ, Stephen, Jacobs and Murphy JJ concluded that at least in some circumstances there could be an obligation upon the Minister to apply the principles of natural justice in exercising his power under s 18.

....

Whether or not there is any room for contending that in some exceptional case, which has not yet emerged, there would arise an obligation, when exercising the power conferred by s 18, to observe the rules of natural justice, remains to be finally determined. It may be noted that since those two cases, s 27 of the Migration Act has been amended to make it a criminal offence to remain in Australia upon the expiration of a temporary entry permit."

Another ground was that the "procedures required by the Migration Act 1958 to be observed in connection with the making of the decision were not observed" in that the applicant was detained in custody for more than seven days, contrary to s. 38(3A) of the Migration Act and as a consequence was not able to obtain legal assistance; further that whilst in custody she was not provided with all reasonable facilities for obtaining legal advice or taking legal proceedings in relation to her custody contrary to s. 41 of the Migration Act. As to this ground the respondent contended that any failure to observe "procedures required by the Migration Act 1958 to be observed" did not fall within the category of "procedures ... in connection with the making of the decision" to deport the applicant. I am inclined to the view that neither of these two grounds has been made out but I do not find it necessary to decide upon either of those matters because of the opinion which I have formed as to the ground upon which most reliance was placed by the applicant.

3. During the hearing objection was taken by Mr. Santamaria, of counsel, on behalf of the respondent Minister, to the relevance of a number of statements in the various affidavits filed in support of the application and also to a substantial amount of the oral evidence given in support of the application - making what was called a "blanket objection". Although I had doubts at the time as to the relevance of the material to which objection was taken, after hearing argument by Mr. Heaton, of counsel, on behalf of the applicant, I decided to admit the evidence subject to objection. Having now considered the matter further I uphold the respondent's objection and reject as irrelevant all of the evidence to which objection was taken.

4. The applicant's main ground, as set out in the application, was that the decision was an improper exercise of the power conferred by the Migration Act in that the respondent had failed to take into account relevant considerations in the exercise of his power and had failed to have regard or any proper regard to the merits of the applicant's case. In further and better particulars of that ground, supplied in answer to a request by the respondent, the applicant listed a number of matters which her counsel contended the Minister's delegate had failed to take into account.

Those matters were:

"(i)

the effect and/or hardship of the decision to the Applicant;

(ii)

the effect and/or the hardship of the decision to Mr. Shearwood;

(iii)

that the intended marriage of the Applicant and Mr. Shearwood was and is genuine and not a marriage of convenience;

(iv)

that the Applicant could if she had wished been married in a civil ceremony of marriage prior to the 7th of December 1982;

(v)

that the Applicant had and has significant family ties in Australia;

(vi)

that the Applicant's sister Norma was in an identical or almost identical situation at the time of the arrest of the Applicant;

(vii)

that the Applicant's conduct in Australia was unexceptional, and

(viii)

that despite the Applicant's further stay in Australia not having been regularised, her continued stay in Australia could be countenanced."

5. In the further and better particulars of that ground it was also contended that the delegate

"wrongly took into account that as the applicant's further stay had not been regularized her continued stay in Australia could not be countenanced" and that he had exercised his discretion "in accordance with a policy or rule that where a further stay had not been regularized he could not countenance her continued stay in Australia without regard to the merits of the applicant's case".

6. The argument for the respondent was put in the alternative. It was contended that the Minister's delegate was not bound to have any regard to any of the particular circumstances of the applicant including the matters listed in (i) to (viii) inclusive of the further and better particulars set out above. It was made clear (transcript 122) that the respondent Minister contended that, in the course of exercising his discretion as to whether to order deportation under s. 18, the delegate was not only entitled to decide to give little or no weight to any or all of such matters (which in my opinion is correct) but that he was entitled to totally ignore the particular circumstances of the applicant, including the matters listed in the further and better particulars and other matters such as the age and health of the proposed deportee. Alternatively, it was contended that in any event the delegate, in reaching his decision, had in fact had regard to those matters.

7. As to the first of those contentions reliance was placed upon the following passage from the judgment of Deane J. in Sean Investments Pty. Ltd. v MacKellar 38 A.L.R. 363: (at pp. 374-5)

"As has been seen, a failure to take a relevant consideration into account in the exercise of a power is, under s 5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. In this regard, I consider that the following comments of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane L JJ) in Elliott v Southwark London Borough Council (1976) 2 All E.R. 781; (1976) W.L.R. 499 at 507, in relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case:

'It is clear that the matters which the local authority should consider ... vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.'

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

8. I agree with respect with that statement of the law. However in my opinion it does not follow that the respondent's contention is correct, namely, that the delegate was not bound to give any consideration to the particular circumstances of the applicant. In this connexion Smithers J. in Ates v The Minister (unreported judgment delivered 3 March, 1983), in dealing with an order for deportation under s. 18 of the Migration Act, said:

"I do conclude, however, that just as it is presumed that Parliament does not intend injustice or authorise it (per Barwick C.J. in Salemi's Case, (14 A.L.R. 1 at p. 5), it does intend that the Minister shall consider, in relation to the immigrant, his particular circumstances in so far as they may be affected by making or deciding not to make an order for deportation. Such a minimum requirement appears to me to be inherent in the conferring of the discretion in the context of the Act."

Although, as Deane J. said in the passage quoted from Sean Investments Pty. Ltd. v MacKellar (supra), the question of what considerations are to be taken into account is "largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant", in my opinion the delegate is nonetheless bound, in the exercise of his discretion under s. 18 of the Migration Act, to give some consideration to the particular circumstances of the proposed deportee. It is a matter for the delegate to determine whether any and what weight is to be attached to those circumstances. However, if the delegate fails to give any consideration at all to those circumstances, then in my opinion, he fails to carry out his task of considering whether to deport the applicant.

9. Reliance was placed by the respondent Minister upon certain dicta from the judgment of Barwick C.J. in Salemi v MacKellar (1977) 137 C.L.R. 396 including the following:

(at p. 406)

"... the presence of the prohibited immigrant in Australia is unlawful. Deportation is the consequence prescribed: and the Minister has the power to order it. The provisions in s. 18 are in reality merely the method by which the process of deportation may be initiated.

The Minister can, of course, decide to end the status of prohibited immigrant by the grant of the requisite permit: see s. 10 but unless the Minister does cause the status of the prohibited immigrant thus to be altered, he would be obliged, in my opinion, to make the order for deportation. He has, in my opinion, no discretion to allow a prohibited immigrant to remain as such at large.

His discretion, again dominated by government policy, is to alter that status by appropriate action under the Act."

10. However that dictum must be read in the light of other judgments in the case which refer to the Minister considering whether to order deportation under s. 18. Gibbs J. (with whom Aickin J. agreed) referred (at p. 418) to the Minister "... when considering whether or not he will order the deportation of a person who is a prohibited immigrant, ...". Stephen J. (at p. 431) cited s. 38(3) of the Migration Act which referred to the Minister being enabled "to consider whether that person is a prohibited immigrant and whether a deportation order should be made in respect of him ...". Stephen J. concluded that:

(at p. 432) "... the Act recognizes that deportation will not be the automatic sequel to apprehension but that, on the contrary, there will be cases in which the Minister will decide not to deport, despite the existence of the status of prohibited immigrant. The Act requires that in each case the Minister should give consideration to whether or not in all the circumstances the prohibited immigrant should be deported ....

If, then, it be the task of the Minister to consider for himself the circumstances of the case and to form his own conclusion as to whether or not a deportation order should be made, it might be supposed that the Minister would not consciously deny himself access to information bearing upon that question which a prohibited immigrant was anxious to supply and of some at least of which the Minister might be unaware."

Murphy J. said:-

(at p. 457) "I do not read s. 18 as enabling a Minister to exercise his discretion (to order deportation) in bad faith, without regard to the interests of the person affected, and in a manner which denies natural justice."

(See also Jacobs J. - at p. 451). It may also be noted that in the passage quoted earlier from Minister for Immigration and Ethnic Affairs v Haj-Ismail Bowen C.J. and Franki J. referred to the possiblity that "in some circumstances there could be an obligation upon the Minister to apply the principles of natural justice in exercising his power under s. 18".

11. Having regard to those passages and to the express terms of s. 38(3) of the Migration Act, cited by Stephen J., I am unable, with great respect, to accept as a correct statement of the law the obiter dictum of Barwick C.J. in Salemi's case (at p. 406) set out earlier, that the Minister, unless he causes the status of the prohibited immigrant to be altered, "would be obliged, in my opinion, to make the order for deportation. He has, in my opinion, no discretion to allow a prohibited immigrant to remain as such at large.". As to this last matter it may be noted that Stephen J. said:

(at p. 432) "However one might suppose that if the Minister decides against deportation, he will usually then issue at least a temporary entry permit rather than leave the immigrant in question in the limbo represented by the status of an undeported but prohibited immigrant."

12. Since Salemi's case s. 27 of the Migration Act has been amended (in 1979) to provide that an immigrant who becomes a prohibited immigrant upon the expiration of a temporary entry permit "shall be deemed to be guilty of an offence against this Act punishable upon conviction by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months.". However, s. 7(4) of the Act provides that:

"(4) Notwithstanding section ten of this Act, a person who has become a prohibited immigrant by virtue of the last preceding sub-section ceases to be a prohibited immigrant at the expiration of a period of five years from the time at which he became a prohibited immigrant unless, at the expiration of that period, a deportation order in relation to him is in force."

That sub-section has been retained although the 1979 Act amended s. 7 by omitting s. 7(5).

13. The alternative argument of the respondent (that the delegate took into account the matters set out in the further and better particulars) leads to a consideration of the statement, dated 11 February 1983, furnished by the delegate in response to a request by the applicant under s. 13 of the Judicial Review Act.

The full text of that statement was as follows:

STATEMENT OF REASONS

I, ALLAN JOHN GOWARD, a Delegate of the Minister of State for Immigration and Ethnic Affairs for the purpose of Section 18 of the Migration Act 1958, having received notice of an application by Emma Estrada Tagle ("the applicant") dated 23 December 1982 requesting a statement of reasons for my decision of 17 December 1982 under Section 18 of the Migration Act 1958 to deport the said Emma Estrada Tagle from Australia, make the following statement setting out the findings on the material questions of fact; referring to the evidence or other material on which those findings were based and giving the reasons for my decision.

MY FINDINGS ON MATERIAL QUESTIONS OF FACT

2.

The applicant, a Filipino citizen, arrived in Australia as a visitor on 20 November 1981 at Melbourne and was granted a temporary entry permit with currency for 59 days.

3.

In January 1982 the applicant applied for her temporary entry permit to be extended to 20 May 1982.

4.

This application was refused and Mr Raymond Eric Sparks acting on behalf of the applicant lodged an appeal to the Immigration Review Panel on 22 February 1982.

5.

This application proved to be incomplete. This, together with further lack of promptness by the applicant caused a delay of approximately two months. A further delay of 20 days is attributable to departmental processing (Ms Tagle for example, did not respond to invitations to attend the Department so that a temporary entry permit could be granted to cover the period of the review which she had sought.).

6.

Due to these delays the appeal did not come before the Immigration Review Panel until the requested period of further stay had expired and the applicant had achieved her object. Accordingly the Panel found the determination of the question to be no longer necessary.

7.

No further entry permit was granted to the applicant, since the expiry of the temporary entry permit on 20 January 1982.

8.

The Melbourne office of the Department of Immigration and Ethnic Affairs was unable to contact the applicant to advise her that she was required to depart Australia.

9.

On 7 December 1982, the applicant, as a prohibited immigrant under section 7(3) of the Migration Act 1958 was arrested and held in custody pursuant to the provisions of section 38 of the Migration Act 1958.

10.

After her apprehension a representation dated 8 December 1982 requesting permission to stay on the basis of an intended marriage was made by the applicant.

THE EVIDENCE OR OTHER MATERIAL ON WHICH MY FINDINGS ARE BASED

11.

In making the above findings, the material to which I had regard was: a submission to me from Mr G.A. Broom, Acting Director Prohibited Immigrants Section, Central Branch, Department of Immigration and Ethnic Affairs, dated 17 December 1982 and the annexure thereto.

This annexure comprises the representation by the applicant dated 8 December 1982.

THE REASONS FOR THE DECISION

12.

The applicant became a prohibited immigrant pursuant to section 7(3) of the Migration Act 1958 upon the expiration on 20 January 1982 of her temporary entry permit no other entry permit applicable to her having come into force.

13.

The presence of a fiance does not in itself detract from the applicant's status as a prohibited immigrant liable to deportation. If any person wishes to sponsor her back to Australia (after her departure) as his fiancee then that will be a matter for the appropriate area of the Department of Immigration and Ethnic Affairs to consider.

14.

As the applicant's further stay was not regularized by grant of an entry permit, temporary or permanent, her continued stay in Australia could not be countenanced. Accordingly on 17 December 1982 I ordered the applicant's deportation.

ALLAN JOHN GOWARD

Delegate of the Minister of State for Immigration and Ethnic Affairs 11 February 1983"

14. I agree with the dictum of Franki J. in the Full Court judgment in Commonwealth of Australia v Duncan (unreported, 15 October, 1982) that "... this court should not look over-critically at words used in decisions of members of administrative tribunals, many of whom are not lawyers.". However, notwithstanding the very able argument presented on behalf of the respondent, I am unable to reach the conclusion that the delegate, in making his decision, paid any regard to the particular circumstances of the applicant.

15. It will be noted that the delegate's statement, although headed "statement of reasons" dealt with three matters, as contemplated by s. 13 of the Judicial Review Act. Those matters, which were dealt with separately, were (a) his findings on material questions of fact; (b) the evidence or other material on which those findings were based, and (c) the reasons for the decision. The delegate's reasons for the decision were set out in paragraphs 12, 13 and 14 of the statement. In my opinion those reasons for the decision show that the delegate did not give any consideration at all to the question of possible hardship to the applicant, or to Mr. Shearwood nor to any of the other matters set out in paragraphs (i) to (viii) of the further and better particulars set out earlier.

16. A fair reading of his reasons for decision, in the context of the statement as a whole, shows that, instead of considering whether to deport the applicant, he treated that question as being one to which there could be only one answer because the applicant's further stay was not "regularized" by an entry permit. The delegate wrongly acted upon the view that he "could not" countenance her continued stay in Australia "as" (i.e. because) she did not have a current entry permit and in so doing misconceived his function. In my opinion the making of the decision to deport the applicant was an improper exercise of the power conferred by s. 18 of the Migration Act in that the delegate failed to "give consideration to whether or not in all the circumstances the prohibited immigrant should be deported" (per Stephen J. in Salemi's case - supra at p. 432) and accordingly his discretion miscarried.

17. It was contended by Mr. Santamaria, during final address (transcript pp. 130-134), that the delegate had taken into account the fact that the applicant was engaged to be married but that contention must be considered in the light of his earlier concession that the delegate had "assumed without deciding that the applicant was engaged to be married". In my opinion the concession was consistent with a fair reading of the statement setting out the delegate, findings on material questions of fact. There was no finding that the applicant was engaged to be married. Paragraph 10 of those findings referred to a letter written by the applicant but was not a finding that the applicant was engaged to be married. That letter was annexed to the statement as part of the material upon which the delegate based his findings on material questions of fact. Having regard to the other material referred to by the delegate and annexed to the statement (namely the four page submission to the delegate dated 17 December, 1982 by Mr. Broom, the then Acting Director Prohibited Immigrants Section) one could scarcely conclude that such a finding was implicit and had been inadvertently omitted from the explicit findings. I may add that the view that no such finding was made is consistent with paragraph 13 of the reasons for decision which includes the words "If any person wishes to sponsor her ... as his fiancee ...".

18. An alternative submission advanced by Mr. Santamaria was that the delegate took into account any hardship likely to affect the applicant or any fiance, even if he did not make a finding that she was engaged to be married, and that it was not necessary for him to make such a finding on that matter.

I have some difficulty in understanding how the delegate could have taken into account, as a consideration relevant to the exercise of his discretion, the hardship likely to flow to the applicant by reason of the fact that she was engaged to be married when the delegate did not make any finding as to whether she was engaged or not. In any event, on my reading of the statement, he did not take that factor into account. Parapraph 10 only referred to a representation having been made and paragraph 13 only referred to the question of a fiance for the purpose of making two points. Firstly, that even if the applicant were engaged to be married, she would nonetheless still be "a prohibited immigrant liable to deportation". Secondly, if she did have a fiance at some later stage then he could attempt to "sponsor her back to Australia" at some time after her deportation.

19. Mr. Santamaria also submitted that the delegate had taken into account, as a very important consideration in exercising his discretion as to whether to order the deportation of the applicant or not, the fact that, at the time of his consideration of the matter in December 1982, no application for an entry permit had been put forward for consideration. However, the delegate, findings on material questions of fact fail to support the contention. There is a finding (paragraph 6 of the statement) that the applicant on 22 February, 1982 lodged an appeal from a refusal to extend the original temporary entry permit. As that appeal "did not come before the Immigration Review Panel until the requested period of further stay had expired" the Panel "found the determination of the question to be no longer necessary". There was no finding of fact that any attempt was ever made by the Department to inform the applicant of the Panel's action in finding that it was unnecessary to determine her appeal although there was a finding that the Department was unable to contact the applicant to advise her that she was required to leave Australia (paragraph 8).

20. There was a finding (paragraph 7) that no further entry permit was granted to the applicant but there was no finding that the applicant never sought any such permit. Had the delegate considered it a relevant circumstance to consider whether the applicant had failed to seek a further entry permit, (as distinct from his finding that no such permit had been granted), then he might have given consideration to the question of why the applicant had failed to do so. There is nothing to suggest that he did so and it was obviously possible that the applicant was still waiting on notification from the Department as to the appeal which she had lodged in Feburary 1982 and which had never been determined. It is of course possible that the delegate, if he had considered all of those matters, would have reached the conclusion:

(a)

that she had not lodged an application for a further entry permit, and

(b)

that fact:

•

irrespective of the reasons for her failure

•

was a matter relevant to the exercise of his discretion.

However on the material before this court there is nothing to suggest that he ever applied his mind to that matter and in particular there is no relevant finding of fact on it.

21. For these reasons I reached the conclusion that the application should be granted and orders made setting aside the delegate's decision and for the respondent to pay the applicant's costs.