FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 485

MIGRATION – MIGRATION ACT – Deportation of non-citizens who have committed serious crimes – Minister made a deportation order under s 200 of the Act following the applicant’s conviction for supplying heroin – Minister also declared the applicant to be an excluded person under s 502 which excluded merits review of the deportation decision – the sentencing judge found that the applicant had been coerced into committing the offence– the constitutional validity of s 502 certificates – whether the Minister failed to take relevant considerations into account – whether the Minister took irrelevant considerations into account – whether the Minister applied departmental policy without regard to the merits of the case – Wednesbury unreasonableness.

Migration Act 1958 (Cth), ss 200, 201, 253, 502

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 13

Attorney-General (Cth) v Breckler (1999) 163 ALR 576 considered

The Queen v The Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 considered

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 followed

Harris v Caladine (1990) 172 CLR 84 considered

Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 followed

Ousley v The Queen (1997) 192 CLR 69 referred to

N44 v Minister for Immigration and Multicultural Affairs [1999] FCA 1127 referred to

Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415 referred to

Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19 referred to

Lu v Minister for Immigration and Multicultural Affairs [2000] FCA 40 referred to

Dietrich v The Queen (1992) 177 CLR 292 followed

Minogue v Williams [2000] FCA 125 referred to

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985) 162 CLR 24 followed

Croft v Minister for Health (1983) 45 ALR 449 referred to

Minister for Immigration and Ethnic Affairs v Tagle (1983) 48 ALR 566 referred to

Ahern v Deputy Commissioner of Taxation (1983) 50 ALR 177 referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 followed

Minister for Immigration and Multicultural Affairs v Gunner (1988) 84 FCR 400 followed

Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 considered

KARM SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 992 of 1999

MATHEWS J

18 APRIL 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks judicial review of a decision made by the respondent on 17 August 1999 to deport the applicant pursuant to s 200 of the Migration Act 1958 (Cth) (“the Act”) and declaring the applicant to be an excluded person under s 502(1) of the Act.  The deportation decision was based on the applicant’s conviction, on 22 December 1998, of four counts of supplying a prohibited drug.  The applicant was sentenced to a total of three years and four months imprisonment with a minimum term of two years and nine months.

Applicable Legislation

2                     The Minister’s decision to deport the applicant was made pursuant to ss 200 and 201 of the Act.  These sections, as relevant here, provide as follows:

“200 Deportation of certain non-citizens

The Minister may order the deportation of a non-citizen to whom this Division applies.

201 Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes

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)      when the offence was committed the person was a non-citizen who:

(i)                 had been in Australia as a permanent resident:

(A)  for a period of less than 10 years; or

(B)   for periods that, when added together, total less than 10 years; or

(ii)        ………

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

section 200 applies to the person.”

3                     The Minister’s decision to declare the applicant an excluded person was made pursuant to s 502 of the Act.  That section provides as follows:

“502 Minister may decide in the national interest that certain persons are to be excluded persons

(1)   If:

(a)   the Minister, acting personally, intends to make a decision:

(i)                 under section 200 because of circumstances specified in section 201; or

(ii)               ……; and

            in relation to a person; and

(b)   the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person;

the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person.

(2)   A decision under subsection (1) must be taken by the Minister personally.

(3)   If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made.”

4                     The effect of the Minister’s decision under s 502 was to remove the applicant’s right (which he would otherwise have had by virtue of s 500 of the Act) to apply to the Administrative Appeals Tribunal (“the AAT”) for review of the Minister’s decision under s 200 and s 201.  This means that the Minister’s decision cannot be subject to merits review.  The only course available to the applicant in these circumstances is to seek judicial review from this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).  Hence the present proceedings.  The Minister’s decisions are challenged on a number of grounds which I shall enumerate later.  In the meantime it is appropriate to describe the applicant’s background and the circumstances in which this matter arose for Ministerial decision.

Applicant’s Background

5                     The applicant was born on 1 March 1959 in the Punjab, India.  He lived with his family at Amritsae, a short distance from the Pakistan border.

6                     After completing his schooling the applicant obtained an electrician’s diploma.  He assisted his father on his farm and held various other forms of employment in the Punjab.

7                     The applicant’s father was an active supporter of the Sikh separatist movement.  This sometimes placed him and his family into conflict with the Indian authorities.  In about 1983 or 1984 the applicant’s brother disappeared.  It later transpired that he had been killed, probably murdered.  The applicant spent a great deal of time investigating his brother’s disappearance.  During this period he became the target of threats and harassment by local police and from other sources, apparently because of the inquiries he was making about his brother.  The harassment became so serious that in 1985 the applicant left the Punjab and went to Delhi.  In 1987 he flew to New Zealand where he remained for about six months.  Finally, on 15 May 1988, he came to Australia from New Zealand.  He found employment almost immediately and remained in work until 1994 when his employment was terminated after he suffered a back injury at work.

8                     In 1979 the applicant had married Harjeet Kaur in India.  They had two sons, Jagmohan born in 1981 and Manpreet born in 1984.  The applicant and his wife were separated in 1985 when he left the Punjab, and they were later divorced.  In the meantime, from 1985 until they came to Australia, the two boys lived with the applicant’s parents in Amritsae.  In about 1990 the applicant met Penelope Austin, an Australian citizen who was a nurse at the Royal North Shore Hospital.  They were married on 20 October 1990.

9                     On 12 December 1994 the applicant received a permanent resident visa.  Since then he has returned to India on two occasions.  The first was between January and March 1995, and the second between December 1995 and April 1996.  The purpose of both trips was to arrange for his sons to come and live in Australia.  On both occasions he remained in Delhi.  He was not prepared to return to the Punjab, which he continued to regard as too dangerous for him.

10                  In about 1990 the applicant met a man called D Singh (no relation) who also came from Amritsae.  Not long afterwards D Singh returned to India.  He and the applicant remained in touch, although the applicant said they were not close friends.  The applicant described the course of their acquaintanceship in a statement that was later made available to the Minister.  He described meeting Mr Singh in India in 1996.  Mr Singh told him that he would assist in obtaining Australian visas for the applicant’s sons.  At Mr Singh’s insistence they played cards together one night.  The applicant got drunk during this game and had to be taken home by his nephew.  Some time later the applicant’s father told him that he understood Mr Singh to be a criminal.  The next time the applicant saw Mr Singh was in Australia.  The applicant told him that he wanted nothing further to do with him.  Mr Singh responded that the applicant owed him a great deal of money as a result of their card game.  The applicant quoted Mr Singh as saying, “If you think wisely and help me to set up my business here in Sydney then I will not pursue you for the money you owe me, otherwise it may result in your sons being harmed.  I do not need to remind you about your friends Master and Kashmir.  Just keep in mind what happened to them or that will happen to your sons”.  Mr Singh’s reference to “Master” and “Kashmir” referred to Master Singh and Kashmir Singh who had both been shot dead in an execution-style murder near the applicant’s home in the Punjab. 

11                  The applicant’s children at that time were still in India and the applicant took Mr Singh’s threats seriously.  Not long afterwards, he did as Mr Singh demanded and started to sell heroin on his behalf.  It appears from the police records that he did so for a relatively short time only:  the charges which were in due course laid against him relate to offences which took place between 5 and 17 September 1996.  The applicant’s principal contact in these drug transactions was a man known to him as “Jerry”.  As it transpired, Jerry was an undercover police officer.  He was fitted with a recording device and most of his conversations with the applicant were recorded.

12                  On 17 September 1996, the applicant and a co-offender supplied Jerry with 112 grams of heroin.  They were arrested immediately afterwards and charged with supplying heroin.  In his subsequent statement the applicant described it as “almost a relief” to be caught.  When questioned by police he freely admitted his involvement in the drug transactions.  He gave a full account of his dealings with D Singh.  He said that he had been coerced into his drug dealings by Mr Singh’s threats to his children.  His co-offender, who was separately interviewed, gave an account which was entirely consistent with that of the applicant.

13                  The applicant was taken into custody on 17 September 1996 and bail was refused.  On 22 May 1998 he pleaded guilty on indictment to four counts of supplying a prohibited drug, namely heroin.  On 22 December 1998 he and his co-offender were convicted and sentenced by Judge Wall of the Sydney District Court.  In relation to the first two counts in the indictment the applicant and his co-offender were both sentenced to minimum terms of imprisonment of two years and six months commencing from 17 September 1996 and expiring on 16 March 1996.  An additional term of 10 months was specified in each case, to expire on 16 January 2000.  The third and fourth counts related to the applicant only.  In relation to each of them he was sentenced to a fixed term of three months imprisonment to commence at the expiration of the minimum term specified under the first two counts.  The minimum term after which the applicant was eligible to be released to parole was specified to expire on 16 June 1999.

14                  Judge Wall gave lengthy observations on sentence.  He set out the details of the offences, as to which there was no dispute between the parties.  His Honour’s findings in relation to these offences were as follows:

“What I have related in relation to the objective circumstances indicates a serious degree of criminality on the part of both offenders in relation to the supply of heroin.  Also in the case of Karm Singh, by reason of the fact he was involved at an earlier point of time and indeed is guilty of four counts of supply in contrast to the prisoner Inder Kalsi who is guilty in relation to two counts of supply.

….

It is apparent from the evidence before me that both prisoners were involved as go-betweens for a principal in the supply of heroin and in relation to the offences charged in counts 1 and 2 both were actively involved in a significant supply of heroin.  Moreover, it is apparent from the negotiations that took place with the undercover operator that but for the intervention of police the prisoners may well have been the conduits for supplying heroin into the community in significant amounts from a principal.”

15                  A little later, his Honour made the following comment in relation to the offences:

“It is proper to say that the two prisoners became involved in the supply of heroin in a very short closed period of time.  All offences were committed in the month of September 1996, and in the case of the prisoner Kalsi his involvement extended only from 16 September to the following day, 17 September.  It is also proper to remark on the comment made by the police officers that the investigating police were of the view that the behaviour of the two prisoners indicated that they were amateurs rather than professionals.  The police accepted that they were acting on behalf of a principal supplier rather than being principals themselves.”

16                  His Honour recited the details of the applicant’s background including his employment history and the fact that he had no prior criminal convictions in India or Australia.  His Honour referred to the “many, many references” tendered in evidence from members of the Sikh community which testified to the applicant’s good character and reputation prior to the commission of these offences.  His Honour concluded that on the evidence before him, the applicant had led an “exemplary lifestyle” until committing the offences.

17                  Judge Wall discussed the applicant’s and his co-offender’s claim that they had been coerced into selling heroin by the making of threats against family members. His Honour noted that sentencing courts generally adopt a certain degree of scepticism in relation to such claims.  However in this case his Honour was satisfied of the genuineness of the claims made by the applicant and his co-accused.  As his Honour said:

“After considering all the evidence, I am satisfied that the complicity of both prisoners in relation to the commission of those crimes was not motivated solely by greed but there was a measure of coercion involved which led to the commission of these crimes.”

18                  His Honour indicated that a reduction in sentence would be effected by reason of this consideration.

19                  His Honour also discussed, in circumspect terms, the evidence that the applicant and his co-offender had assisted the police in providing information about the principal offender for whom they had been selling drugs.  Under s 442B of the Crimes Act 1900 (NSW), a court may take into account, in reduction of sentence, that a person has assisted the law enforcement authorities.  In this case, his Honour was satisfied that information had been given to the police which they accepted as “truthful and reliable”.  He was also satisfied that:

“... by reason of the claim under s442B that the prisoners have experienced a real fear of harm to themselves and that that fear was held by them whilst they were in custody, particularly in the early weeks of custody when certain visitations to the Prison Detention Centre took place.”

20                  Towards the end of his sentencing observations, his Honour recorded the following findings:

“I am satisfied that but for the circumstances of Karm Singh becoming indebted in a gambling matter to the third party and thereafter receiving certain threats he would not have become involved in the supply of heroin.  I am also satisfied that but for Inder Singh Kalsi as a friend of Karm Singh becoming aware of the involvement of his friend Karm Singh in the supply of heroin in the background of coercion, he himself would not have become involved in the supply of heroin.

I am satisfied that their prospects of rehabilitation on their release from prison can be described as very good.  In my view, the sentence should not be weighted towards special deterrence, rather the sentence should be weighted towards general deterrence.”

21                  Finally, immediately before passing sentence, his Honour made the following observation:

“Whilst a measure of sympathy can be extended to both prisoners in the background of the coercion that led them to commit this crime, nonetheless they did willingly, knowingly, take part as a conduit for a significant supply of heroin and in the background of negotiating significant supplies of heroin.  Accordingly, in my view, the sentence must be weighted toward general deterrence …”

22                  As has been indicated, the applicant, upon his arrest, gave full details of D Singh’s involvement in these offences.  A person of Indian extraction had been observed by police near the area where the applicant and his co-offender were arrested.  The police believed that this person might well have been the principal supplier.  Not long afterwards the police went to Mr Singh’s home to arrest him.  However he was not there.  As it transpires, he had already fled Australia and returned to India.  Some time later, according to the applicant, he received a visit in prison from an acquaintance of D Singh who told him that Mr Singh knew that he had informed the police of his activities.  Mr Singh said that he would kill the applicant and his family if he ever returned to India.

23                  In October 1996 the applicant’s oldest son, Jagmohan (Jack) arrived in Australia.  The applicant’s younger son, Manpreet (Manny) arrived a few months later, in February 1997.  The applicant was in custody at this time and the boys went to live with the applicant’s wife, Penelope Austin.  On all accounts they have become extremely attached to her and she to them.  They call her ‘Mum’.  On 21 April 1999 Jagmohan became an Australian citizen.  Manpreet intends to seek citizenship as soon as he is old enough to do so.

24                  On 23 February 1999 a representative of the Department of Immigration and Multicultural Affairs (“the Department”) wrote to the applicant, who was then in prison, informing him that he may be liable for deportation from Australia by reason of his convictions for supplying a prohibited drug.  He was invited to provide material to demonstrate why he should not be deported and was told that he would be interviewed before a deportation decision was made.

25                  This interview took place on 10 March 1999.  Its results are set out in a standard-form document which contains questions to be asked of an offender and allows space for the interviewer to insert the answers.  In the space for “Offender’s report of current offence (Why was it committed?)” the response recorded is “supply heroin, there was a threat to my children in India if I did not supply the drug they would be killed”.  To the question whether he would offend again the response is recorded:  “No – if I had had my children here it wouldn’t have happened.  I have a very bad name in the community.  If I didn’t have to do it I wouldn’t have.”  To the question how he regarded his criminal history the answer is recorded: “Very highly ashamed.  Seen badly by the community”.  The applicant told the interviewer that he had good prospects of rehabilitation.  He was learning welding in prison and had job offers upon his release.  He said that his wife, his children and the community would help him.  When asked about any particular difficulties as a result of deportation, the response is noted: “I’ll be killed if I return to India.  I have been threatened by the brother of the man that threatened me to supply the drugs that if I return I will be killed.”

26                  On 9 April 1999 the applicant’s wife, Penelope Austin was also interviewed.  She affirmed the closeness of her relationship with the applicant.  When asked her attitude towards the applicant’s deportation she said, “This is the worst thing that I’ve ever had to deal with.  I’ve been to India and could not survive there.  It would be very upsetting and disruptive if he was deported.”  When asked whether she would accompany the applicant if deported she said, “I don’t know what I would do.  I probably would go with him but it would affect our whole life.  I’d have to leave a very stable job.  If Karm’s kids could stay here I may remain here with them until they are old enough to look after themselves.”

27                  The other person to be interviewed by a departmental officer was a friend of the applicant, Jagdish Raj.  Mr Raj described himself as a “close friend” of the applicant having known him for more than 20 years.  Mr Raj said that the applicant was a hard worker, and that he could offer him employment on his release from prison.  More importantly, Mr Raj gave the following information:

“The first week of January 1999, the person who forced Mr Karm Singh to do the illegal activities, rang me up at work and told me he knew I (myself) had given evidence against them in Mr Karm Singh’s case.  He told me to give Karm Singh and Inder Singh Kalsi a message that when they come to India from Australia they will be killed.  And as to me he said that he’ll see to me when I go back to India.”

28                  On 4 May 1999 the applicant’s solicitor, Mr Kessels, forwarded written submissions to the Department setting out the reasons why it was contended that a deportation order should not be made.  The submission suggested that the risk of the applicant re-offending was “negligible”.  It pointed out that the value of deportation as a deterrent was greatly reduced in this case given that the applicant’s crimes were not committed for personal gain or to feed his own drug habit.  The submission proceeded:

“If it is accepted (as it was by the District Court) that the applicant was coerced into the crime by threats made against his children, it is difficult to see how deporting him would deter others involved (or from becoming involved) in the supply of drugs.  The circumstances are so peculiar, that there could be little general deterrence value in deporting him.”

29                  The submission referred to the situation of the applicant’s children and submitted that their best interests could only be served by the applicant remaining with them in Australia.  The degree of hardship to the applicant arising from deportation was, it was submitted particularly high because of the threats to his life were he to return to India.  Similarly, the degree of hardship to the applicant’s wife, an Australian citizen, would be very high indeed.  In this regard, a statutory declaration, sworn by Ms Austin, was enclosed with the submission.  In it she attested to the strength and closeness of the attachment between herself and the applicant.  She went to India with him in December 1995, she said, and found it extremely difficult.  She had constant health problems whilst she was there and lost 10 kgs in six weeks.  She expressed concern about whether she would be able to accompany the applicant to India were he to be deported.  A medical certificate which was attached to her statutory declaration affirmed that she had suffered various medical problems over the years since 1994.

30                  Mr Kessels’ submission concluded in the following terms:

“CONCLUSION

The overriding considerations in this matter are the best interests of the children and the expectations of the Australian community.  For the reasons already outlined, the best interests of the children can only be served if the applicant is not deported.  The attitude of the Australian community is a matter of conjecture, but it might be suggested that decent compassionate people would see that the applicant is an honest and hardworking family man who became involved in a serious crime out of fear for his children’s safety.  He was not motivated principally by financial gain or to feed a drug habit.  No drugs actually went on to the street and he not only confessed his involvement and saved the cost of a trial, but gave information to the police about others that has now put his and his family’s lives at risk.  The risk to the community is low and there could be no real deterrence benefit in deporting such a person.  In such circumstances, it is hard to imagine that the Australian community would demand deportation in this case and we submit that it is a more appropriate case for a warning.”

31                  Mr Kessels’ submission was accompanied by a lengthy statement of the applicant setting out details of his background, in India and Australia, and describing the circumstances in which he was coerced into committing the offences.  The applicant expressed extreme remorse and stressed he would never offend again.  The final paragraph of his statement was in the following terms:

“46. I beg that the Minister give me one chance to prove myself.  I promise that I will not re-offend.  I have learnt my lesson and will never again be involved in criminal activities.  If my family is ever threatened in this was [sic] again I would go straight to the police because I now know that they can help to protect me and keep me out of trouble.  I know I should have done that last time but I was extremely scared what would happen to my children.  They are now in Australia and I can protect them.  D Singh has fled the country and I cannot imagine him returning as the police are looking for him. If he were ever arrested, I would assist the police to convict him.  Please give me one last chance to be with my family and start again. I will make a real contribution to the community will raise my boys to be law abiding citizens.”

32                  Also enclosed with Mr Kessels’ submission were statutory declarations sworn by each of the applicant’s sons and by two friends, Kawaljit Kaur and Jagdish Raj.  It will be remembered that Mr Raj had been interviewed by a departmental officer on 12 April 1999.  In his statutory declaration dated 22 April 1999, Mr Raj gave details of the matters he had alluded to during the interview.  In particular, he described an incident in September 1996, not long before the applicant’s arrest, when the applicant and his co-offender came to Mr Raj’s restaurant accompanied by two other men.  These men were clearly D Singh and his brother.  They were introduced to Mr Raj as the “Captain” and his “Brother”.  Mr Raj overheard enough of their conversation to enable him to confirm that these men were making threats against the applicant and/or his family.  Mr Raj gave evidence of this incident at the applicant’s sentencing proceedings.  He said that later, in January 1999, he received a telephone call from the “Captain” saying that he knew that Mr Raj had given evidence against his brother.  Mr Raj was asked to pass a message on to the applicant and his co-offender that he (the “Captain”) was returning permanently to India and if either of the applicant or his co-offender went to India they would not come back alive.

33                  Also enclosed with Mr Kessels’ submission were a very large number of references – over fifty in all – most of which had been prepared for use in the applicant’s sentencing proceedings.  In addition, there were a number of petitions containing between 150 and 200 signatures, all affirming that both the applicant and his co-offender were “very well known and respected” within the community.  The sheer number of these documents, and the contents of many of them, illustrate the strength and extent of support for the applicant, particularly amongst the Sikh community.

34                  On 28 May 1999 the Department wrote a letter to the applicant which was described as a “Notice of Possible Liability Pursuant to s 200 of the Migration Act 1958”.  The applicant was told that a decision had not yet been made about his possible deportation.  He was also told that if the Minister decided to order his deportation under s 200 of the Act, he would consider, as part of that decision, whether the circumstances of the applicant’s crime was so serious that it was in the national interests to declare him to be an excluded person.  If so, the applicant was told, the Minister may include a certificate declaring him to be an excluded person under s 502 of the Act.  The applicant was invited to provide further comments on matters relevant to ss 200, 201 and 502 of the Act.

35                  On 4 June 1999, Mr Kessels lodged further submissions with the Department in respect of s 502 of the Act.  It was urged that the applicant was a first offender and that there was “overwhelming material” to support the contention that his offences were out of character and would not be repeated.  In these circumstances it was urged that it would not be in the national interest to exclude him from merits review.  Moreover the submission pointed out that the factual issues surrounding the offences had been the subject of detailed evidence before a District Court Judge whose findings, insofar as they related to the applicant’s credibility, were all in his favour.  If the Minister did not accept these findings, the only fair way to have the applicant’s credibility assessed would be by having the matter heard before the AAT where he and his witnesses would be able to give evidence and be cross-examined by the Minister’s legal representatives.  The submission went on:

“The issue of Mr Singh’s credibility in respect of his motivation for the crime is central to the issues of the protection of the Australian community and it would not be in the national interest for the Minister to have the final say on an issue that involved issues of credibility that could only be properly determined after an oral hearing.”

36                  Before the Minister made his decision, a departmental submission was prepared and made available to him.  This document set out the background of the matter and quoted extensively from Judge Wall’s observations on sentence.  It discussed the primary considerations to be taken into account when determining whether a deportation decision should be made.  They were specified as:

“The seriousness and nature of the offence”

Under this head, the submission commented:

“Mr Singh’s deportable offence is his first serious offence and his first period of imprisonment however, the seriousness of the offence, and the impact that it may have had on the community, must weigh heavily against him.”

“The risk of recidivism"

The submission’s summation on this matter was in the following terms:

“It is submitted that if Mr Singh gains stable employment on his release and accepts the support of his family and the Indian community it is considered that his risk of recidivism is low.”

“Likelihood that deportation of the potential deportee would prevent (or inhibit the commission of) like offences by other persons”

Under this head, the submission made the following observation:

“The sentencing judge, in his comments indicated, that Mr Singh was an amateur, rather than a professional.  He also believed that Mr Singh had been coerced.  He further stated that the sentence should be weighted towards general deterrence, rather than special deterrence, given the circumstances which existed in relation to the motivation behind the offence.

Given this, it is difficult to conclude that Mr Singh’s deportation would prevent or inhibit the commission of like offences by other persons.”

“Community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community.”

The conclusion noted in the submission was as follows:

“Mr Singh’s offence is such that the community would expect that he be deported from Australia.  It is an offence prescribed as a serious offence within the ministerial direction.”

“The best interests of the child”

The submission described the applicant’s relationship with his children both before and after

their arrival in Australia.  It concluded:

“It is assessed that Mr Singh has strong ties to his children and that his deportation would have a strong emotional impact on himself and his children.  It is considered that the best interests of the children would be best served by having Mr Singh remain in Australia with them.”

37                  Under “Other Considerations” the submission referred to the degree of hardship which may be suffered by the potential deportee or by an Australian citizen.  In this regard the minute concluded that both the applicant and his wife, who is an Australian citizen, would suffer emotional and financial hardship if he was deported to India.

38                  Finally, the submission listed the factors for and against deportation in the following terms:

“Factors in Favour of Deportation

(i)                 Serious nature of deportable offence.

Factors Against Deportation

(i)                 Mr Singh’s children would suffer emotional hardship if their father was deported to India.

(ii)               Mr Singh’s wife would suffer emotional and financial hardship if he was deported to India.

(iii)             Mr Singh would suffer emotional and financial hardship if he was deported to India.

(iv)             Mr Singh’s risk of recidivism is assessed as low.”

39                  A separate section of the submission dealt with the Minister’s powers under s 502.  It is unnecessary to describe this in detail here.  In essence it reiterated matters which had been discussed earlier in the submission in relation to the deportation issue.

40                  Annexed to the submission were all available documents which were relevant to the Minister’s decisions.  These included the statements and statutory declarations made by the applicant and others, Judge Wall’s observations on sentence, and Mr Kessels’ submissions together with their attachments, including the extensive references and petitions in support of the applicant.

41                  On 17 August 1999 the Minister ordered that the applicant be deported under s 200 of the Act.  Annexed to the deportation order was a certificate which declared the applicant to be an excluded person in accordance with s 502(1) of the Act.

42                  On 13 October 1999 the Minister furnished a statement under s 13 of the ADJR Act.  Under “Findings on material questions of fact” the Minister said that he accepted the facts as set out in the departmental submission.  Under “Evidence or other material on which those findings were based” the Minister said that he referred to and relied upon the evidence set out in and annexed to the departmental submission.  In other words, the Minister referred to the whole of the available documentary material relating to the decisions.

43                  Under the heading “Reasons for the decision” the Minister discussed, at some length, the various matters which were raised in the departmental submission.  Insofar as the Minister’s conclusions on these matters are relevant to the issues in this case I shall refer to them when dealing with the relevant grounds of review.

44                  This brings me to a discussion of the grounds upon which the Minister’s decision has been challenged in this case.

The Grounds of Review

Section 502 Certificate: Constitutional Invalidity

45                  Numerous grounds of review are relied upon in relation both to the s 502 decision and the deportation order under s 200.  The first ground, under s 5(1)(c) of the ADJR Act is that the Minister did not have jurisdiction to declare the applicant to be an excluded person under s 502 of the Act, as to do so was an exercise of judicial power and, under Chapter III of the Constitution, was not validly exercisable by the Minister.  In other words, it was submitted that s 502 was invalid in that it purported to confer judicial power upon a member of the executive.  This being a matter involving the interpretation of the Constitution, s 78B of the Judiciary Act 1903 (Cth) requires that the Attorney-General of the Commonwealth and each State be notified of the matter and given an opportunity to intervene in the proceedings or to seek to remove the cause to the High Court.  Notice has been given as required by this section.  None of the recipients has sought to intervene in the proceedings or to have the cause removed to the High Court.

46                  In pressing this submission, the applicant’s Counsel, relied strongly on the judgment of Kirby J in Attorney-General (Cth) v Breckler (1999) 163 ALR 576 (“Breckler”) at p601:

“The characterisation of a power as judicial cannot therefore depend only on the use of particular verbal formulae.  It must also be derived from: (1) a consideration of what the tribunal in question is authorised to do; (2) whether its functions purport to deprive those affected of access to the courts for the resolution of connected legal controversies; and (3) to what extent the tribunal’s decisions, once made, are directly enforceable, as the orders of courts typically are.  Nor is it conclusive that the tribunal which is impugned makes decisions affecting controversies concerned with the property of private citizens or outside the central functions of the Executive Government.  These can be characteristics of administrative bodies as well as of courts."

47                  It was urged that these three considerations, when applied to the circumstances of this case, compel a finding that the Minister, in issuing a certificate under s 502 of the Act, was exercising judicial power.  As Chapter III of the Constitution entrusts this power exclusively to the courts, the purported exercise of it by the Minister was invalid.

48                 As to the first matter mentioned by Kirby J in Breckler, counsel for the applicant urges that it is an exercise of judicial power to make binding determinations in relation to existing rights.  In this regard, he relies upon the following observations of Kitto J in The Queen v The Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 (“Tasmanian Breweries”) at pp374-375:

“…judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons.  In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined;  and the end to be reached must be an act which, so long as it stands, entitled and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.  It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified”

This statement was quoted with approval by McHugh J in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at pp66-67.

49                  Counsel for the applicant submits that the Minister, in declaring the applicant to be an excluded person under s 502 of the Act, was making a determination in respect of an existing right.  In Counsel’s written submissions, he referred to the serious consequences flowing from the Minister’s decision.  These consequences were said to include exposing the applicant (and possibly also his children) to the risk of losing his life if he is deported from Australia to India.  It was submitted that these consequences are so extreme as to enable an analogy to be drawn with punishment inflicted as part of the criminal process.

50                 The second consideration suggested by Kirby J in Breckler is whether those affected by the decision in question are deprived of access to the courts.  Counsel for the applicant submits that this means that those affected by the decision should have access to full de novo review.  In this case, the unavailability of merits review has the effect, he submits, of rendering the Minister’s decision an exercise of judicial power.  He relies in this regard upon the judgment of McHugh J in Harris v Caladine (1990) 172 CLR 84.  That case involved a challenge to the exercise, by registrars of the Family Court, of powers which had been delegated by the judges of the court.  The High Court, by majority, upheld the validity of the registrars’ powers.  McHugh J based his finding upon the fact that the exercise of the registrars’ powers was subject to appeal by way of de novo hearings by judges of the court.  This was also relied upon by Mason CJ and Deane J.  At p95 they made the following observation:

“For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid.  Certainly, if the review is by way of hearing de novo, the delegation will be valid.  The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and  a determination by a judge.  In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration.”

51                  The third matter referred to by Kirby J in Breckler is the extent to which the decision in question is enforceable.  Under s 206 of the Act, the Minister’s deportation decision is to result in the deportation of the person concerned.  This, according to the applicant’s submission, further enforces the proposition that the Minister’s decision was an exercise of judicial power.

52                  In my view this challenge to the validity of the Minister’s decision is without foundation.  Not only does it fly in the face of established authority, but it relies on propositions which are unsustainable either in principle or in logic.

53                  In order to illustrate this, I shall return to the three features of judicial power posited by Kirby J in Breckler and relied upon by the applicant.  The first of these involves a consideration of the functions of the decision-maker.  Counsel for the applicant has submitted, as already mentioned, that the consequences of the Minister’s decision are so extreme as to be analogous to a criminal punishment.  But it is the decision to deport the applicant which has these consequences, not the decision presently challenged, being the decision under s 502.  The effect of this decision is to render the deportation decision inaccessible to merits review.  This is not a decision which settles existing rights within the meaning described by Kitto J in Tasmanian Breweries.  Apart from anything else, access to merits review cannot be an “existing right”.  It is an entitlement conferred by s 500 of the Act in relation to decisions made under certain specified sections of the Act “other than decisions to which a certificate under s 502 applies”.  It follows that, even if entitlement to merits review could be categorised as a “right” (which in my view it cannot), the issue of a certificate under s 502 did not deprive the applicant of any existing right.  Rather it excluded him from the category of persons who might otherwise have been entitled to exercise a right.

54                  There are, in any event, more fundamental reasons why a consideration of the first matter referred to by Kirby J in Breckler must lead to the conclusion that the Minister was exercising executive rather than judicial power.  For there is an abundance of binding authority that a decision to deport a non-citizen, and any decision incidental thereto, is not an exercise of judicial power of the Commonwealth, and therefore does not infringe Chapter III of the Constitution. 

55                  As long ago as 1980, Deane J observed that, in this respect, it was too late to turn back the tide of authority.  In Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at p685 his Honour said:

“If the slate were clean, I should have thought that there was a great deal to be said for the view that the banishment, consequent upon his conviction of a criminal offence, of one who has become an accepted member of the Australian community was an interference with personal liberty by way of punishment.  (See eg, the dissenting judgment of Field J inFong Yue Ting v United States (1892) 149 US 689 at 748-9.)  If that view were correct, a question would arise as to whether a provision purporting to confer upon an executive officer of the Commonwealth a power as close to the heart of judicial power as the subjection of the individual to interference with personal liberty by way of punishment was consistent with the provisions of Chapter III of the Constitution.  It has however been said, in many cases, that deportation cannot properly be regarded as punishment of an offence (see, for example, Koon Wing Lau v Calwell (1949) 80 CLR 533 at 555; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 61; O’Keefe v Calwell (1949) 77 CLR  261 at 278).  The validity of legislation entrusting to executive officers and organs, decisions as to the deportation of established residents has long been accepted (see, for example, Walsh and Johnson, supra, at 68-69, 96; Koon Wing Lau v Calwell, supra, at 555). 

56                  This proposition was again affirmed in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.  In that case was there was a challenge to the validity of certain sections of the Migration Act which empowered officers of the Commonwealth to detain designated persons (generally known as “boat people”) in custody.  It was submitted that these provisions were invalid in that they purported to confer judicial power upon the executive contrary to Chapter III of the Constitution.  The High Court unanimously upheld the validity of these sections.  Brennan, Deane and Dawson JJ found that the authority to detain an alien in custody in this context constituted an incident to the executive power of deportation or expulsion.  In relation to that power, their Honours made the following observation at pp29-30:

“While an alien who is actually within this country enjoys the protection of our law, his or her status, rights and immunities under that law differ from the status, rights and immunities of an Australian citizen in a variety of important respects.  For present purposes, the most important difference has already been identified.  It lies in the vulnerability of the alien to exclusion or deportation.  That vulnerability flows from both the common law and the provisions of the Constitution.  For reasons which are explained hereunder, its effect is significantly to diminish the protection which Ch III of the Constitution provides, in the case of a citizen, against imprisonment otherwise than pursuant to judicial process.

The power to exclude or expel even a friendly alien is recognized by international law as an incident of sovereignty over territory.  As Lord Atkinson, speaking for a strong Judicial Committee of the Privy Council, said in Attorney-General (Canada) v Cain and Gilhula:

‘On the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests: Vattel, Law of Nations, book 1, s 231; book 2, s 125.’

His Lordship added:

‘The Imperial Government might delegate those powers to the governor or the Government of one of the Colonies, either by royal proclamation which has the force of a statute – Campbell v Hall – or by a statute of the Imperial Parliament, or by the statute of a local Parliament to which the Crown has assented.  If this delegation has taken place, the depositary or depositaries of the executive and legislative powers and authority of the Crown can exercise those powers and that authority to the extent delegated as effectively as the Crown could itself have exercised them.’(Emphasis added.)

The question for decision in Attorney-General (Canada) v Cain was whether the Canadian statute 60 and 61 Vict C 11 had validly clothed the Dominion Government with the power to expel an alien and to confine him in custody for the purpose of delivering him to the country whence he had entered the Dominion.  The Judicial Committee concluded that it had.  As the emphasized words in the above passage indicate, the power to expel or deport a particular alien, and the associated power to confine under restraint to the extent necessary to make expulsion or deportation effective, were seen as prima facie executive in character.  The outcome of the appeal was that their Lordships upheld the lawfulness of the arrest and confinement of the respondents pursuant to executive ‘warrants’, issued by the Attorney-General, ‘to take the respondents, then residing in the province of Ontario, and return them to the United States of America’.

In this Court, it has been consistently recognized that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorizing the Executive to restrain an alien in custody to the extent necessary to make the deportation effective.” (footnotes omitted)

57                  Mason CJ agreed with this reasoning.  His Honour’s conclusion on this issue was succinctly expressed in the following passage at p10:

“I agree with their Honours that the legislative power conferred by s 51(xix) of the Constitution extends to conferring upon the Executive authority to detain an alien in custody for the purposes of expulsion or deportation and that such authority constitutes an incident of executive power.  I also agree that authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers and that such limited authority to detain an alien in custody can be conferred upon the Executive without contravening the investment of the judicial power of the Commonwealth in Ch III courts.”

58                  This is sufficient to resolve this issue in favour of the respondent.  The Minister’s declaration, included in a certificate under s 502 of the Act, that the applicant was an excluded person, was incidental to the Minister’s decision to deport the applicant.  On no way of looking at it was it an exercise of judicial power.  Nevertheless, the other issues raised by counsel for the applicant require some discussion, if only to illustrate the misconceived nature of this “constitutional” challenge.

59                  Kirby J’s second consideration in Breckler, relating to the exclusion of access to the courts, derives from the proposition that no administrative decision can be immune to judicial review (Ousley v The Queen (1997) 192 CLR 69).  The applicant’s argument, as mentioned above, is that “judicial review” means full merits review by a tribunal such as the AAT, or review by way of de novo appeal to a court.  The absence of such review, according to this argument, means that the decision cannot be categorised as administrative and must therefore be judicial in nature.

60                  This submission is, in my view, misconceived on a number of bases.  First, it is inconceivable that the availability of merits review by a tribunal such as the AAT could affect the nature of the original decision.  The AAT and other merits review tribunals, such as the Refugee Review Tribunal (RRT), are of relatively recent origin.  They were established to enhance the accountability and transparency of administrative decision-making.  Their functions are administrative not judicial.  Moreover, they themselves are not susceptible of further merits review.  If the applicant’s submission had any foundation, it would mean that the absence of further merits review from these tribunals would change the nature of the tribunals themselves to bodies exercising judicial power rather than administrative functions.  This is contrary to logic, principle and authority.  This type of reasoning has formed the basis of several recent challenges to this court in relation to decisions made by the RRT, on the basis that the tribunal was exercising judicial power.  These challenges have uniformly been rejected. (N44 v Minister for Immigration and Multicultural Affairs [1999] FCA 1127 (“N44”); Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415; Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19 and Lu v Minister for Immigration and Multicultural Affairs [2000] FCA 40).

61                  The applicant submits, as I understand it, that administrative decisions must be accessible either to merits review or to full de novo review by the courts.  I have just rejected the first of these propositions.  The second is similarly untenable.  The Minister’s decision under s 502 is clearly accessible to judicial review.  That is what the current proceedings are all about.  The applicant’s reliance on Harris v Caladine to suggest that a more general form of review should be available is misconceived.  The issue in that case was whether the judges of the Family Court could validly delegate functions which were indisputedly judicial to non-judicial officers of the court.  The validity of the scheme was ultimately upheld on the basis that the registrars of the court were delegates of the judges and that the latter retained effective supervision and control over them.  It was in this context that the availability of de novo review was regarded as significant.  To suggest that administrative decisions should be challengeable by way of de novo review by the courts is contrary to a long line of binding authority (see, for example, Ousley v The Queen).

62                  The third consideration referred to by Kirby J in Breckler, namely the enforceability of the impugned decision, can be dealt with very shortly indeed.  For the Minister has no power to enforce his own decisions.  Any consequences which flow from his decisions arise because the decisions enliven other provisions of the Act.  As Tamberlin J commented in N44 in relation to a similar challenge to the RRT, “[t]he RRT has no power, for example, to punish for contempt or to sequestrate property or to exercise any other enforcement measure which is normally found in the armoury of a court.  Because of this essential attribute of judicial power is lacking it follows that the Act does not confer Chapter III judicial power on the Tribunal” ( para 21).  The same can be said of the Minister.

Section 502 Certificate: International Covenant on Civil and Political Rights

63                  The applicant challenges the validity of the certificate under s 502 of the Act on the basis that the phrase “national interest” in that section should be read to mean “national security” in order to comply with Article 13 of the International Covenant on Civil and Political Rights (ICCPR).  The applicant’s drug related offences raised no issues relevant to the national security it is submitted.  Therefore there was no basis upon which he could be declared to be an excluded person under s 502.  According to this submission, the result is that the Minister’s certificate was invalid.  However, if there were any substance in the submission it would not lead to the invalidity of the certificate.  Rather it would provide a basis for setting the Minister’s decision aside upon one of the grounds specified in s 5(1) of the ADJR Act.

64                  This ground can be dealt with very shortly indeed.  It is based on the terms of Article 13 of the ICCPR which provides as follows:

“An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reason of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”

65                  According to the applicant’s submission, Article 13 requires that a decision to expel an alien must be subject to review by “the competent authority”, in this case the AAT.  It is only where “compelling reasons of national security” exist, that this requirement can be waived.  Accordingly, so the argument goes, the phrase “national interest” in s 502 should be read to mean “national security” in order to bring s 502 into conformity with the Commonwealth’s obligations under Article 13 of the ICCPR.

66                  This submission is dependent upon the following propositions:

(1)   that Article 13 of the ICCPR is binding on the Minister; and

(2)   that Article 13 requires that an expulsion decision should be subject to merits review unless national security otherwise requires.

67                  Neither of these bases have been made out.  First, the ICCPR has not been incorporated into Australian domestic law.  It was ratified by Australia on 13 November 1980 and is contained in a schedule to the Human Rights and Equal Opportunity Act 1986 (Cth).  However as the High Court confirmed in Dietrich v The Queen (1992) 177 CLR 292 it was not thereby incorporated into domestic law.  As Mason CJ and McHugh J said at p305:

“Ratification of the ICCPR as an executive act has no direct legal effect on domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions.  No such legislation has been passed.” (footnotes omitted)

This position was upheld as recently as February of this year by the Full Court of this Court (Minogue v Williams [2000] FCA 125).

68                  In any event, Article 13 of the ICCPR does not, in my opinion, bear the meaning urged by the applicant.  The entitlement of a potential deportee to “have his case reviewed” by the competent authority does not confer an entitlement to merits review.  It requires that any expulsion decision be made by the competent authority or his or her delegate, and that the potential deportee be permitted to submit reasons against his expulsion and be represented before a decision is made.  All these protections were afforded to the applicant before the deportation decision was made by the Minister on 17 August 1999.

69                  In my view there is no substance in this challenge to the Minister’s decision.

Section 502 Certificate – Taking into account an irrelevant consideration

70                  The applicant’s submission under this head, based on paragraphs 5(1)(e) and 5(2)(a) of the ADJR Act, is integrally connected with the ground I have just rejected, and must similarly fail.  It is that the Minister, in making a declaration under s 502, took into account an irrelevant consideration namely, a “matter of national interest” which was not a matter of “security interest”.  The arguments in favour of this submission are based on the interpretation of Article 13 of the ICCPR referred to above.  For the reasons I have already given this ground must fail.

Section 502 Certificate – Failing to take a relevant consideration into account

71                  It is submitted on behalf of the applicant that the Minister failed to take a relevant consideration into account, namely that any risk to the community which the applicant posed whilst he was at large, could have been averted by his being taken into custody pursuant to s 253 of the Act.  In order to understand this submission it is necessary to quote the reasons given by the Minister for declaring the applicant to be an excluded person under s 502 of the Act.  These reasons, as contained in the s 13 statement, are as follows:

“3. Reasons for the decisions

I considered the seriousness of the particular offences, in particular the fact that Mr Singh was in contact with principals in the drug trade and may have become, if not arrested, a conduit for the supply of significant amounts of heroin.  I considered also the significant harm which the illicit drug trade causes to the Australian community.  I noted that Mr Singh is not in custody and considered that, because of the risk which I found that he poses, there should be a speedy resolution to this matter.  Having regard to those matters I decided that it was in the national interest that my decision to deport Mr Singh be final, and that he be precluded from seeking merits review of my decision at the Administrative Appeals Tribunal.”

72                  Section 253 of the Act enables a person against whom an order for deportation is in force to be taken without warrant into detention and be detained until he or she is deported.  The applicant submits that, in failing to consider this alternative of placing the applicant into custody under s 253, the Minister failed to take a relevant consideration into account.

73                  There are, as the respondent’s submissions point out, various answers to this submission.  The first and most basic is that the Minister was not bound to take this matter into consideration.  The law on this subject was definitively expressed by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985) 162 CLR 24 at pp39-40:

“(a)     The 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: Sean Investments Pty Ltd v MacKellar; CREEDNZ Inc v Governor-General; Ashby v Minister of Immigration.  The statement of Lord Green MR in

Associated Provincial Picture Houses Ltd v Wednesbury Corporation,that a decision-maker must take into account those matters which he ‘ought to have regard to’ should not be understood in any different sense in view of his Lordship’s statement on the following page that a person entrusted with a discretion ‘must call his own attention to the matters which he is bound to consider’.

(b)       What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.  In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd,adopting the earlier formulations of Dixon J inSwan Hill Corporation v Bradbury, and Water Conservation and Irrigation Commission (NSW) v Browning.  By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.” (footnotes omitted)

74                  The Minister is obliged under s 502(1)(b) to consider the seriousness of the circumstances giving rise to the deportation decision and the requirements of “the national interest”.  The fact that the applicant was not in custody when the decision was made was relevant to the latter consideration, namely the national interest.  There is no implication arising from the section or the Act that the Minister, in considering this matter, was obliged to go further and consider whether there were alternative means of separating the applicant from the community.  Accordingly it could not be said that the Minister failed to take a relevant consideration into account.

75                  It is not for me to re-phrase the applicant’s grounds of review.  However there might have been more substance in this challenge if it had been based on the converse proposition, namely that the Minister took an irrelevant consideration into account (the fact that the applicant was not in custody), having regard to the fact that s 253 provided a readily available means of securing the applicant’s custody.  However even as re-formulated, this ground could not succeed.  The power under s 253 is a discretionary one, as the circumstances of this case reveal.  The details are not contained in the papers before me, but it appears that a short time after the deportation order was made, officers of the department proceeded to exercise the power conferred by s 253 of the Act, and took the applicant into custody. This power, however, was “ultimately constrained by order of the Federal Court” (to quote from the applicant’s submission) and the applicant was released.  Accordingly, the Minister was justified in regarding the fact that the applicant was not in custody as being relevant to the national interest, notwithstanding the provisions of s 253.

Section 502 Certificate – Application of Policy without regard to merits

76                  It is submitted on behalf of the applicant that the Minister “applied a policy, albeit unarticulated, that a person who commits an offence falling within the category of ‘very serious offences’ is to be deported …. without merits review of the decision to deport.”  This rendered the decision reviewable under paras 5(1)(e) and 5(2)(f) of the ADJR Act, according to the submission, as the Minister was exercising a discretionary power in accordance with a rule of policy and without regard to the merits of the case.

77                  No authorities were cited in support of this submission.  My own research relating to paragraph 5(2)(f) indicates that the occasions upon which it has been successfully invoked have also involved successful challenges under s 5(2)(b) of the Act.  In other words, it has applied in situations where the decision-maker has, in the pursuance of policy, failed to take account of considerations to which he or she should have had regard relating to the merits of the case (see eg Croft v Minister for Health (1983) 45 ALR 449; Minister for Immigration and Ethnic Affairs v Tagle (1983) 48 ALR 566; Ahern v Deputy Commissioner of Taxation (1983) 50 ALR 177).  This situation does not apply here.  Indeed a challenge under s 5(2)(b) has already been discussed and rejected. It cannot be said that the Minister blindly applied policy at the expense of the merits of the case.  To the contrary, the Minister had regard to the merits, or to some of them, but concluded them adversely to the applicant.  In my view this ground must fail.

Section 502 Certificate – Decision manifestly unreasonable

78                  It is submitted by the applicant that the Minister’s decision to issue a s 502 certificate was so unreasonable that no reasonable person could have so decided.  Under this ground the applicant principally relies upon the Minister’s failure to advert to the power available under s 253 of the Act to place the applicant into custody, thereby obviating any concern arising from the fact that he remained at large.  I have already referred to this challenge to the Minister’s decision.  In my view it has not been made out.  But there are other bases upon which the Minister’s decision under s 502 might be categorised as unreasonable.  All of them are referred to in other sections of the applicant’s submissions, and I think it appropriate to discuss them here.

79                  The reasons for the s 502 decision, as set out in the section 13 statement, have already been quoted (paragraph 71 above).  These show that the Minister had regard to two principal matters in determining that it was in the national interest that the applicant be excluded from seeking merits review.  They are:

(1)   The seriousness of the offences, including:

(a) the fact that the applicant was in contact with principals in the drug trade;

(b) if not arrested the applicant may have become a conduit for the supply of significant quantities of heroin; and

(c) the harm occasioned to the Australian community by the illicit drug trade.

(2)   That there should be a speedy resolution of the matter because of the following factors:

(a)    that the applicant was not in custody; and

(b)   because of the risk which the Minister found the applicant posed.

80                  These were the matters to which the Minister had regard when he decided that it was in the national interest that his decision to deport the applicant be final and that the applicant be precluded from seeking merits review of the deportation decision.

81                  In my view the Minister’s reasoning process is open to legitimate criticism.  However whether this amounts to Wednesbury unreasonableness involves different considerations.

82                  It is undoubtedly the fact that the Minister, when dealing with the offences committed by the applicant, emphasised those matters adverse to the applicant and attributed little or no weight to those which favoured him.  By way of example, the fact that the applicant was coerced into committing the drug offences, a fact which was accepted by the sentencing judge and treated as a significant mitigating circumstance, was not regarded by the Minister as diminishing the applicant’s culpability.  Other matters favourable to the applicant which were referred to by the sentencing judge, such as his co-operation with the police, were not referred to by the Minister.  In other words, there is some substance in the applicant’s contention that the Minister gave great weight to the fact that supplying heroin is a very serious offence, and very little weight to the strong mitigating features of the applicant’s case.  Some observers might not agree with the Minister’s conclusions in this regard.  But this on its own will not amount to Wednesbury unreasonableness.  As Gleeson CJ and McHugh J said in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at p587:

“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’.  If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.

In Puhlhofer v Hillingdon London Borough Council Lord Brightman said:

‘Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.’”

83                  I am also troubled by the second series of factors which the Minister took into account in making his decision under s 502.  The words that the Minister used were as follows:

“I noted that Mr Singh is not in custody and considered that, because of the risk which I found that he poses, there should be a speedy resolution to this matter.”

The Minister’s reference to the “risk which I found that he poses” clearly refers back to the Minister’s findings, in relation to his decision to make the deportation order, as to the risk of recidivism posed by the applicant.  The Minister’s findings in this regard were as follows:

“The risk of recidivism

I accepted the assessment that Mr Singh’s risk of reoffence was low, at least in the sense that Mr Singh was not an addict with his own drug habit to support.  However I do not consider that the risk of reoffence is negligible.  The fact that a person has committed a crime, even a serious crime, does not necessarily mean that he or she must, therefore, be a person of bad character, character involving the enduring moral qualities of a person.  In this case, however, I thought that the crime, even assuming that the claimed coercion occurred, did indicate a readiness to engage in serious criminal conduct which reflected very poorly on this applicant’s character.

I also considered that Mr Singh had a choice in relation to the commission of the offence.  He could have reported the threats against his children to police.  Instead, he chose to become involved in the offences.  Of particular concern to me in relation to this is that he may, should pressure be placed on him again, be similarly tempted in the future.  Given the serious nature of the offences.  I do not regard a low risk of reoffence as acceptable.”

84                  It may well be legitimate to consider a low risk of recidivism, as opposed to a negligible one, as unacceptable when making a deportation order under s 200 of the Act.  But it is difficult to see how a person who constitutes a “low risk of recidivism” requires to be removed from the community so urgently that it is in the national interest that the person be precluded from seeking merits review.  The Minister’s decision in this regard is not easy to understand.  Some might say it was marked with a degree of illogicality.

85                  The real question is whether this is sufficient to establish Wednesbury unreasonableness. The comments of Gleeson CJ and McHugh J, quoted above, would suggest not.  So too would the decisions of this court relating to the Minister’s exercise of power under s 502.  In Minister for Immigration and Multicultural Affairs v Gunner (1988) 84 FCR 400 at p409 the Full Court (Heerey, Lindgren and Emmett JJ) made the following observations about the Minister’s decision under s 502:

“The decision referred to is the decision of the kind referred to in s 502(1)(a)(i), (ii) or (iii) – in the present case a decision under s 501 (which is referred to in s 502(1)(a)(ii)).  The ‘circumstances’ in the present case are thus the respondent’s past criminal conduct: s 501(2)(a)(i).  It is the seriousness of that conduct which has to be assessed in the national interest.  Obviously enough, the national interest dictates that people who engage in sufficiently serious crime should not have the benefits of an Australian visa.  The effect of s 502, when invoked, is to ensure that the Minister is to have the final and only say on the question of whether the person in question should or should not be entitled to enter or be in Australia.  While the word ‘excluded’ signifies exclusion from merits review by the AAT, the effect is that, since the +relevant decision under s 201 or s 501 has been made by the Minister acting personally, the Minister and no one else can make the decision as to what is in the national interest.  Not only is the Minister directly answerable to parliament for his or her decision, but Parliament must in fact be informed of the decision: s 502(3).”

86                  I have given this matter a great deal of thought, for I am disturbed by the circumstances of this case.  However it is one thing to question the Minister’s reasoning process and disagree with his conclusion.  It is an entirely different thing to say that it was a conclusion which no rational person could have reached.  There were, after all, important considerations of public policy to be taken into account by the Minister.  As Lehane J said in Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 at p565:

“I have already referred to the comment of Mason J in Peko at 42 that ‘where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion’.  Considerations of that kind emphasise, if it needs emphasis, that the Court should be slow indeed to find reviewable error in a Minister’s decision as to what the public interest requires.”

87                  In my view this ground of review has not been made out.

Deportation Order – Failing to take relevant considerations into account

88                  This challenge, under s 5(1)(e) and 5(2)(b) of the ADJR Act, is that the Minister failed to take into account relevant considerations when he made the deportation order under s 200 of the Act.  The relevant considerations which it is said the Minister should have taken into account are:

(1) the length of the applicant’s residence in Australia before he committed the deportable offences; and

(2)   the fact that the applicant’s sentence was at the lower end of the range available for his offence, indicating that it was towards the lower end of the continuum of seriousness for offences of that nature.

89                  In making a deportation order under s 200 of the Act the Minister had regard, as he was obliged to do, to the General Direction issued on 21 December 1998 under s 499 of the Act.  This specifies that the primary considerations to be taken into account when determining whether to make a deportation order are community expectations and the best interests of any children who are in a close relationship with the potential deportee.  Under “community expectations”, as relevant here, a decision-maker must have regard to the protection of the Australian community, the seriousness and nature of the offence, the risk of recidivism and the likelihood that deportation would prevent or inhibit the commission of like offences by other persons.  All of these matters were referred to by the Minister in the section 13 statement.  His findings in relation to them were not favourable to the applicant.  He regarded the offences committed by the applicant as “very serious”, and generally adopted those aspects of the sentencing judge’s comments which were most critical of the applicant and his behaviour.  The Minister also referred to the best interests of the applicant’s children but noted that the family unit was free to travel to India with the applicant if he were deported.  The Minister also considered the degree of hardship to be suffered by the applicant if he were to be returned to India.  In this regard, the Minister did not accept the applicant’s life would be in danger in India.  He rejected as “implausible” the applicant’s claim of death threats in the event of his return to India.  The Minister accepted that the applicant’s wife would experience emotional and economic hardship if the applicant were deported, but noted that she had a choice of accompanying the applicant.  In conclusion, the Minister made the following comments:

“In deciding to sign a deportation order against Mr Singh I considered that the expectations of the Australian community, particularly having regard to the nature and seriousness of the offences and the need to protect the Australian community against the risk I found to be posed by Mr Singh, clearly outweighed the best interests of the children and the other relevant considerations.

In reaching this conclusion I had regard to all of the factors that I have identified as pointing towards deportation or against deportation and I considered all of them both together and in isolation, guided by the General Direction to which I have referred.  With respect to my conclusion that the expectations of the Australian community outweighed in this particular case the interests of the potential deportee’s children, I formed the view that the need to protect the Australian community was serious in relation to Mr Singh and outweighed in this case the detriment to his children which, though significant, was not as great here as it may be in other cases.”

90                  I return to the applicant’s submissions as to the considerations which, it is said, the Minister wrongly failed to take into account.  It is true that the Minister made no reference to the length of time that the applicant had been in Australia.  But this was not a consideration to which the Minister was required to have regard.  The provisions of s 201 (and therefore s 200), are only enlivened if a non-citizen has been in Australia as a permanent resident for less than 10 years when a deportable offence is committed.  When the applicant was arrested, on 17 September 1996, he had been a permanent resident of Australia for approximately 1 year 9 months.  He was therefore very much at the lower end of the scale so far as his permanent residency was concerned.

91                  Counsel for the applicant pointed out that the applicant had been in Australia for a total of 8 years and 4 months when he was arrested in September 1996.  In fairness, he urged, this should have been taken into account as a relevant consideration.  It would be unfair for a person who committed his or her first offence in Australia only a few days short of the 10-year cut-off point to be treated in the same way as someone who had been in Australia a short time only.

92                  There is nothing in the legislation which requires that a decision-maker should have regard to a potential deportee’s total length of residence in Australia.  It is difficult to see how it would be relevant to the discretionary considerations set out in the General Direction.  It might in some circumstances go to the risk of recidivism, being relevant to the time that the potential deportee has lived in the community without committing offences.  It can also be a relevant consideration if the potential deportee came to Australia as a child and has spent all his formative years here.  But neither of these considerations apply to the applicant.  He came to Australia as an adult, and is known to have committed no offences either in India or Australia.  There was thus no reason why the Minister should have referred to the applicant’s period of residence in Australia.

93                  The second “relevant” consideration which the Minister is said to have wrongly failed to take into account relates to the factors which were said to mitigate the seriousness of the offences committed by the applicant.  In particular, the Minister adopted those parts of Judge Wall’s observations on sentence which emphasised the seriousness of the applicant’s offences whilst discounting other comments which pointed towards leniency.  But the Minister was not bound by the sentencing judge’s assessment of the seriousness of the applicant’s offences.  He was entitled to form his own views on this matter.  The fact that he did not attach the same weight as the sentencing judge to potentially mitigating features in relation to the offences is not reviewable in these proceedings.

94                  In my view this ground of review must fail.

Deportation Order – Application of policy without regard to merits

95                  Under this head it is submitted on behalf of the applicant that the Minister did not “genuinely and realistically” consider the merits of the case.  I propose to deal with this ground very shortly indeed.  A mere listing of the matters which it is suggested were disregarded by the Minister makes it abundantly clear that the applicant is seeking under this ground to do no more than cavil with the merits of the Minister’s decision.  Paragraphs 5(1)(e) and 5(2)(f) of the ADJR Act do not provide a pathway through which this course can be taken.

96                  The specific complaints made under this head are as follows:

(1) Under the heading “The Seriousness and Nature of the Offence” the Minister made the following comment:

“I did not consider that the seriousness of the offences was reduced in any significant way by the fact the Mr Singh had no prior criminal history.  Similarly I accepted that, as found by the trial judge, threats of harm may have been made against the children, who were at that stage living in India.  I did not accept that this reduced the seriousness of the offence in any significant way.”

The applicant submits that the Minister, in reaching these conclusions, had inadequate regard to the sentencing judge’s findings in relation to the circumstances in which the applicant committed the deportable offences.

(2) Under the heading “The risk of recidivism” the Minister made the following observation:

“I also considered that Mr Singh had a choice in relation to the commission of the offence.  He could have reported the threats against his children to police.  Instead, he chose to become involved in the offences.”

The applicant submits that, in making this comment, the Minister evinced no appreciation of the “invidious position” that the applicant was in, having regard to the history of his relationship with the police in his home State in India.

(3) In considering the likelihood that deportation of the applicant would prevent or inhibit the commission of offences by other persons the Minister disagreed with the assessment contained in the departmental decision.  As the Minister put it in the s 13 statement:

“I considered the factors put forward in the submission, however I did not agree with the conclusion.  In my view, deportation of Mr Singh would send a clear message to other like minded individuals, that drug related crime is unacceptable to the Australian community and may result in deportation even if threats have been made against the person’s family as a result of which the person has felt pressured to commit the crime.”

The applicant’s submission, as I understand it, is that the Minister’s conclusion on this matter is contradicted by the very large number of references and petitions supporting the applicant.  In similar vein, the applicant’s submissions contend that “there is no evidence that the Australian community at large seeks Mr Singh or others in his situation to be deported”.

97                  A mere recitation of these challenges is sufficient, in my view, to illustrate the proposition, stated earlier, that the applicant is attempting to use paragraphs 5(1)(e) and 5(2)(f) of the ADJR Act to challenge the merits of the Minister’s decision.  All these matters would be relevant to merits review, but they do not constitute a ground for judicial review under section 5 of the ADJR Act.

Deportation order – Decision manifestly unreasonable

98                  The same can be said of the applicant’s final ground of appeal, namely that the deportation decision was visited with Wednesbury unreasonableness pursuant to paragraphs 5(1)(e) and 5(2)(g) of the ADJR Act.  Counsel for the applicant submits that the Minister’s decision to deport the applicant was manifestly unreasonable having regard to the following matters:

(a)                the seriousness of the offences;

(b)               the risk of recidivism in the applicant’s case;

(c)                the applicant’s prospects of rehabilitation;

(d)               the applicant’s lack of criminal history;

(e)                the applicant’s assistance to the police;

(f)                 the applicant’s contrition for the offences;

(g)                the applicant’s support in the local community; and

(h)                the applicant’s background and his prospects on release.

99                  In relation to each of the above factors it was suggested that, having regard to Judge Wall’s observations on sentence, the Minister’s ultimate finding was so unreasonable that no reasonable decision-maker could have reached it.

100               Mason J whilst discussing Wednesbury unreasonableness had this to say in Minister for Aboriginal Affairs v Peko-Wallsend (1985) 162 CLR 24 at p42;

“…it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: Lovell v Lovell; Gronow v Gronow; Mallett v Mallett.  So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.” (footnotes omitted)

101               This is apposite in this case, for the matters raised by the applicant in support of this ground are essentially seeking to have the Minister’s decision reviewed on its merits.  This ground has not been made out.

Conclusion

102               In conclusion, none of the applicant’s ground of challenge has been made out either in relation to the deportation order or the certificate under s 502 of the Act.  Accordingly the application must be dismissed.  The formal orders I make are:

1.      That the application be dismissed.

2.      That the applicant pay the respondent’s costs.

Associate:

Dated:              18 April 2000