FEDERAL COURT OF AUSTRALIA

Damanik v Minister for Immigration & Multicultural Affairs [2000] FCA 771

MIGRATION – deportation – non-citizen – Indonesian national - convicted of offence of supply of prohibited drug – sentence of five years imprisonment – separated wife and child in Australia - exercise of discretion to make deportation order and certificate that non-citizen an excluded person – natural justice – irrelevant considerations – relevant considerations – unreasonableness.

Migration Act 1958 (Cth) s 476, s 201, s 502, s 499

Administrative Decisions (Judicial Review) Act 1977 (Cth)

National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296 cited

Barratt v Howard [2000] FCA 190 cited

BERNANDUS DAMANIK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W61 of 2000

FRENCH J

8 JUNE 2000

PERTH

BETWEEN:               BERNANDUS DAMANIK

                                    APPLICANT

AND:                          MINISTER FOR IMMIGRATION AND

                                    MULTICULTURAL AFFAIRS

                                    RESPONDENT

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The Applicant is to pay the Respondent’s costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     Bernandus Damanik, an Indonesia national who has been a permanent resident of Australia since 1990, was convicted in 1998 of possession of the drug ecstasy with intent to sell or supply it.  He was sentenced to a term of imprisonment of five years, but was eligible for parole in January 2000.  The Minister for Immigration and Multicultural Affairs decided in January however that he should be deported.  This application for review of that decision and a related decision to deny him merits review in the Administrative Appeals Tribunal raises questions of natural justice and the proper exercise of the Minister’s powers.

Factual Background

2                     Bernandus Dominic Damanik was born in North Sumatra, Indonesia on 5 July 1967.  He is a citizen of Indonesia.  In March 1988 he met Kathryn Anne Swan, an Australian citizen in Indonesia.  In October 1989 they were married in Sumatra in what Ms Swan described as a jungle marriage.  It was not recognised for migration purposes and she sponsored him for fiance entry into Australia.  Mr Damanik arrived in Australia on 6 February 1990 and married Ms Swan at Wantirna, Victoria on 17 March.  He was granted permanent resident status on 4 April 1990.  The marriage only lasted six months.  They separated in September 1990.  Their separation, according to Ms Swan, was due to cultural differences between them, her work commitments and her inability to offer the amount of support their relationship required.

3                     In recent years Mr Damanik began to acquire a minor criminal history including a conviction for dangerous driving, reckless driving, three convictions for driving under suspension and the possession of cannabis with intent to sell or supply for which he was fined $750 in June 1997.   On 2 October 1998, he pleaded guilty in the District Court of Western Australia to possession of the drug “ecstasy” with intent to sell or supply.  He was sentenced by the Chief Judge to five years imprisonment.

4                     The circumstances of the offence were set out by the sentencing judge in his remarks.  On 25 May 1998 Damanik and another person met at the Regency Hotel in Rivervale with a third man who was in fact an undercover police officer posing as a potential buyer of ecstasy.  Damanik had a conversation with the officer about selling him a quantity of ecstasy tablets.  He showed him a sample and then negotiated the sale.  The officer made an arrangement to meet Damanik at a Shell Service Station in Canning Highway, Victoria Park.  Damanik directed him to a rubbish bin at the front of a BMW vehicle in which he had arrived and pointed to the rear of the bin.  The officer saw there a white plastic shopping bag which was subsequently found to contain 1,800 ecstasy tablets of 15% purity.  The officer then sent a signal to surveying police and Damanik and his co-offender were arrested.  He made admissions on a video record of interview.  On the evidence before the court the ecstasy was to be sold for between $50 and $60 per tablet, yielding a total return for the shipment of approximately $90,000.

5                     Although the Crown submitted that the facts showed Damanik to be a drug dealer of significance and at the higher end of the scale, his Honour was not prepared to draw that inference.  It was put by Damanik’s counsel, on the other hand, that he was a heroin addict,  that his co-accused was the boyfriend of Damanik’s sister in Indonesia and that Damanik was simply a dealer at a comparatively low level.  It was said that the main parties in the transaction were Damanik’s employer and his co-accused and that all he was to receive was some free heroin and a holiday in Indonesia.  After reviewing the tapes and the file in the matter generally, his Honour found there was not enough before him to enable him comfortably to reach the conclusion proffered by the Crown.  In his Honour’s view, Damanik was to be treated “…as a lower to medium level distributor but one who, nevertheless, is an important part of the distribution of ecstasy within the community”.  He was not prepared to accept that he was simply a victim of circumstances or an addict driven by compulsion, but that he was “well and truly part of the commerciality of the deal”.  Damanik was declared to be a drug trafficker pursuant to the Misuse of Drugs Act 1981 (WA).  His sentence runs until 1 October 2001 but he became eligible for consideration for release to parole on 30 January 2000.

6                     With a view to his possible deportation Damanik was interviewed by an officer of the Department of Immigration and Multicultural Affairs on 20 August 1999.  He said in the interview that he had mixed with the wrong people, that he was using a lot of drugs himself and that he had been selling drugs to support his habit.  He said that the man who sold him heroin arranged for him to sell ecstasy in return for heroin.  His supplier arranged the rendezvous at Victoria Park and arranged for him to take the ecstasy to the man who turned out to be an undercover policeman.  His supplier was never charged. He never received any money.

7                     On 29 January 2000 the Minister for Immigration and Multicultural Affairs, acting upon a departmental submission, made the following findings and decisions:

1.         That Bernandus Damanik was a person coming within s 201 of the Migration Act 1958.

2.         That Bernandus Damanik should be deported.

3.         To order his deportation  - an order being signed on the same day.

4.         That a certificate declaring Bernandus Damanik to be an excluded person under s 502 of the Act should be included as part of the decision to deport him.

By an application filed on 14 April 2000, Mr Damanik sought an order of review of the Minister’s decision pursuant to s 476 of the Migration Act.  He was represented at the hearing on 26 May 2000 by Mr Morison who acted pro bono.  Mr Morison had previously filed a minute of a proposed amended application which invoked review under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) as well as s 476 of the Migration Act previously invoked.  An extension of time was necessary for the ADJR Act application and was granted without opposition.  The application proceeded under the ADJR Act.

The Statutory Framework

8                     Division 9 of the Migration Act deals with deportation.  Section 200 empowers the Minister to order the deportation of a non-citizen to whom the Division applies.  The relevant section of Division 9 is s 201 which is in the following terms:

“201  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

.

.

.

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

section 200 applies to the person.”

In determining, for the purposes of s 201, the length of time that a person has been present in Australia as a permanent resident, where a person has been convicted of any offence the period, if any, for which the person was confined in prison for that offence, shall be disregarded (s 204(1)).

9                     Section 502 which was also relied upon by the Minister in this case provides, in the relevant parts:

“502(1)  If:

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

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

.

.

.

            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.” 

The consequence of  a certificate under s 502 is that the decision of the Minister under s 200, being a decision to which a certificate under s 502 applies, is not reviewable in the Administrative Appeals Tribunal (s 500(1)).

10                  Reference should also be made to s 499 under which General Direction No 9 relating to criminal deportation was made.  That section is in the following terms:

“499(1)  The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)       the performance of those functions; or

(b)       the exercise of those powers.

.

.

.

   (2)  Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

   (2A)  A person or body must comply with a direction under subsection (1).

   (3)  The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

   (4)  Subsection (1) does not limit subsection 496(1A).”

The subsection referred to in subs (4) deals with the exercise of delegated powers subject to the direction of the Minister.  As a matter of syntax s 499 does not bind the Minister himself.  No doubt, however, he is entitled to take account of and apply the policy considerations reflected in any direction as factors relevant to the exercise by him of any discretion to which that direction applies.

The Departmental Submission

11                  After setting out Damanik’s personal particulars, the submission referred to relevant parts of the government’s criminal deportation policy reflected in the General Direction No 9.It focussed on the factors relevant to the assessment of risk to the community and the need for its protection in determining whether a conviction warrants the deportation of a non-citizen.  These elements are:

(a)        the seriousness and nature of the crime;

(b)        the risk of recidivism;

(c)        the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.

12                  Under the heading “Seriousness and nature of the crime” the submissions set out the sentencing remarks of the Chief Judge and the characterisation, in the criminal deportation policy, of the distribution or selling of illicit drugs as “very serious” offences.  It referred to the substance of Damanik’s remarks upon interview on 20 August 1999 and a similar account given of the offences given at Albany Prison and contained in a report from that prison dated 20 May 1999.  The submission concluded, under this heading:

“This offence is clearly very serious, although His Honour CJDC Hammond did not accept that he was at the higher or upper range of dealer and regarded him as a lower to medium level distributor, but nonetheless an important part of the distribution of ecstasy within the community.”

13                  Turning to the risk of recidivism, the submission referred to Damanik’s other criminal history.  Setting aside the driving convictions, there were two relevant convictions, one for possession of cannabis with intent to sell or supply and the other possession of a prohibited drug.  In view of the penalties imposed, which in each case were fines of $750 and $100 respectively, those offences could not be viewed as “very serious”.

14                  In considering the probability of his rehabilitation, the submission referred to letters from Damanik and his estranged wife of 10 June 1999 and 17 May 1999 respectively and the Albany Prison report of 20 May 1999.  In his letter of 10 June 1999, Damanik said he realised he had made a serious mistake in breaking the law and had ultimately paid the price.  He said he was both remorseful and ashamed of what he had done and that his only desire was to live a life by the rules and to be a solid citizen of the Australian community.  He spoke of the need for him to provide support to his wife and to be a father to their eight year old daughter.  His wife described him as a person in whom she had seen a lot of ability and talent.  He had worked long and hard after obtaining employment in Melbourne at the Toyota Dandenong Plant.  He found it difficult to adapt to Western culture.  She was prepared to offer him support and guidance.  She said she had strong ties with his family in Indonesia and all wanted to see him responsible and living the life he was intended to live.  The Albany Prison report of 20 May 1999 said that he was employed as a cleaner in the metal shop.  He required prompting from staff to complete daily tasks, but was polite to instructors and interacted well with other prisoners in the work area.  As to his conduct, staff reported that he was polite and interacted well with other inmates in the unit he which he resided.  He could be impatient and demanding when confronted with personal problems.  His cell and personal hygiene were of an acceptable standard.  He was not considered a management problem at that level.  The submission offered no assessment of the risk of recidivism. It can only be assumed, in favour of Mr Damanik, that the writer of the submission was not able to identify or assert a particular risk in this connection.  No ground of review was directed specifically to that aspect of the submission.

15                  The third relevant factor set out in the criminal deportation policy is the likelihood that deportation of the potential deportee would prevent or discourage similar offences by other persons.  According to the submission, at the time the offence was committed Mr Damanik was working at the Excapade Night Club.  He was employed there between mid-1996 and mid-1997 “helping keep the peace between Asians at Excapade”.  The submission went on as follows:

“It was reported in the West Australian newspaper on 11 January 2000 that on New Years Day two people aged in their early twenties died as a result of taking illicit drugs marketed as ecstasy.  This recent example illustrates the possible deleterious effects of ecstasy and similar substances upon the community.

Mr Damanik was part of the night club culture in which consumption of illicit drugs, especially ecstasy, is prevalent among young people.  Mr Damanik was involved with selling or supplying ecstasy, in these circumstances the deportation of Mr Damanik would provide a significant deterrent to other non-citizens who may be involved similar activities or contemplating similar activities.” (sic)

16                  Perhaps reflecting back upon the absence of any finding as to recidivism, the submission continued:

“General direction no. 9 states that it is the Government’s view that the Australian community trusts non-citizen residents to obey Australian laws.  Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community.  Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported.”

17                  The submission then turned to a consideration of  the interests of Mr Damanik’s child. Article 3.1 of the Convention on the Rights of the Child was set out: 

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Reference was made to the history of Mr Damanik’s marriage to Kathryn Swan and their subsequent separation and her advice to the Department, given on 17 May 1999 by letter, that over the past eight years he had consistently phoned her and asked about the welfare of their daughter.  She did not search him out or ask him for any financial support.  She felt it was his responsibility to offer this out of honest earned wages.  But she felt that hidden deep within him throughout their separation had been a desire to do “the right thing”.  She believed it was necessary for their child to develop a relationship with her father in the future.  She believed Mr Damanik understood what was expected of him as a role model for their daughter.  Mr Damanik had written in his letter of 10 June 1999 that if he were deported he would not have the wherewithal to see his wife and daughter again as they did not have a lot of money and would be living in separate countries.  Ms Swan also advised the Department by telephone on 7 January 2000 that their daughter suffers from scleroderma, which she described as a connective tissue disease involving tightening of skin over joints and muscles which can lead to immobility.  To date it had been well managed and was not having a profound effect on her daughter.  The departmental submission however observed:

“Mr Damanik moved to Perth from Melbourne in late 1993 while his daughter and her mother remained in Melbourne.  In these circumstances the deportation of Mr Damanik to Indonesia would not cause father and daughter to be much further apart than previously existed prior to his imprisonment.  Although it would be more difficult to foster a close relationship in the future.” (sic)

18                  As to the degree of hardship which might be suffered by Mr Damanik it was accepted that he would only be able to see his daughter if she were to travel to Indonesia.  She is apparently loath to do this again.  His deportation would greatly alter the circumstances that had existed for a considerable period prior to his imprisonment.  Nevertheless it was said:

“His father and siblings continue to live in Indonesia and would be in a position to provide the support he needs which is absent in Australia.”

Deportation would not represent significant hardship and with the close family in Indonesia he would arguably be better placed in terms of rehabilitation than if he were to remain in Australia.  As to hardship to Australian citizens or permanent residents, it was noted he has no family other than his daughter in Australia and has not produced any evidence of support from friends although he did make mention of the Montero family in Beaconsfield, WA and the Kinato family in Melbourne.

19                  Summing up, the Department’s submission listed as factors in favour of deportation:

“(i)      Very serious criminal conviction;

(ii)       Few employment skills, limited employment history and limited prospects;

(iii)      No family in this state or any other state except his daughter and no apparent support network;

(iv)      Close family in Indonesia.”

As factors against deportation, the following two items were listed:

“(i)      8-year-old daughter in Melbourne with a possible life threatening disease;

(ii)       8 years 7 months permanent residence.”

20                  Under the heading “Procedural Fairness” it was stated that a warning of the possibility of deportation was given to Damanik in writing on 12 October 1998, that an interview was conducted with him on 21 August 1999 and that representations had been received from Kathryn Swan.  In terms of the practicality of deportation, Indonesia was said to be prepared to accept him as deportee and travel documents were said to be readily available for him. 

21                  Section 502 of the Act was cited and it was pointed out to the Minister that in order to issue a certificate under that section he must decide that because of the seriousness of the circumstances giving rise to his decision to sign a deportation order it was in the national interest to do so. Relevant to the national  interest were the nature of Mr Damanik’s criminal history and the impact on the community of those crimes.  Under this head reference was made to his conviction and the asserted value of the ecstasy tablets at $90,000.  Moreover it was said:

“Court decisions in this state regard ecstasy, a derivative of methylamphetamine as being in a similar class of drugs in terms of deleterious as heroin.” (sic)

As to repercussions that might be experienced by the Australian community if Damanik were to reoffend, it was said that were he to re-offend potential damage he might cause to the community by distributing similar drugs was enormous “…as illustrated by the death of two young persons on New Years Day from like substances”.  The submission ended with boxes containing decisional options for the Minister.  These boxes were marked to reflect the decisions to which reference has been made earlier.  I accept the proposition, which was not disputed, that for the purposes of this review the Minister’s decision can be taken to have been made for the reasons set out in the Departmental submission.

Grounds of Application

22                  Without setting them out in full, the grounds of application were as follows:

1.         Breach of the rules of natural justice occurred in connection with the making of the decision to deport the applicant and to declare him an excluded person in that he was given no or insufficient notice of the grounds for deportation and exclusion and no or an insufficient opportunity to be heard.

2.         The Minister took into account irrelevant considerations.

3.         The Minister failed to take into account relevant considerations.

4.         The Minister acted unreasonably.

Breach of Natural Justice

23                  On the question of the adequacy of notice given to Mr Damanik the Minister relied upon copies of correspondence from the Department to him dated 12 October 1998, 9 March 1999 and 11 June 1999.  A file copy of the letter of 12 October 1998 was exhibited to an affidavit sworn by the solicitor acting for the Department, Mr Corbould.  According to that letter, which was addressed to Damanik at Canning Vale Prison, he was advised that as a result of his sentence and the fact that he was not an Australian citizen and had been a permanent resident of Australia for less than ten years when he committed the offence, he appeared liable for review of the question of deportation.

24                  On 9 March 1999 a further letter, a file copy of which was produced, enclosed “relevant extracts from the Act on deportation liability and a copy of the government’s criminal deportation policy”.  Damanik was warned in the letter that in his own interests he should study those papers fully.  The letter opened with the observation that:

“In the administration of the Migration Act 1958, this office is required to review cases where non-citizens,  through serious criminal convictions, have rendered themselves liable for deportation.”

The notice dated 11 June 1999, also relied upon by the Minister, was a notice addressed to Damanik at the Albany Regional Prison.  The notice warned him that by reason of his conviction he was a person who came within s 201 of the Migration Act and that the Minister had the power to order his deportation from Australia under s 200 of the Act.  The Minister was said to have indicated that he proposed personally to decide whether to order the deportation and as part of that decision he might also decide to include a certificate declaring  Damanik to be an excluded person under s 502 of the Act.  Copies of the text of ss 200, 201 and 502 of the Act were attached.  A copy of the criminal deportation policy was again enclosed.  The notice warned Damanik that if deported from Australia he would not be able to re-enter.  He was also warned about the effect of a declaration under s 502 treating him as an excluded person, preventing him from accessing merits review at the Administrative Appeals Tribunal.  The notice concluded:

“You are invited to comment on:

.           Whether you consider you come within Section 201 of the Act; and

.           If you do no (sic) come within Section 201 of the Act, reasons/factors

            why the Minister’s discretion to order deportation under Section 200

            of the Act should not be exercised against you; and

.           Reasons why you do not consider that the circumstances leading

            to your possible deportation would be so serious that it would

            not be in the national interest to declare you an excluded person.”

Damanik was invited by the notice to forward his written comments to Mr K. Graffin at the Department of Immigration and Multicultural Affairs and was given an address for that purpose.  He was also told he would be offered an opportunity to participate in an interview.  He was asked to acknowledge receipt of the letter by signing the statement at the foot of the duplicate copy and returning it to the office.  No copy of a signed returned notice was put before the Court. 

25                  In oral evidence, which he gave with the assistance of an interpreter at the hearing of the application, Damanik was shown the copy letter of 12 October 1998. He denied receiving it.  In October 1998 he was in Canning Vale Prison.  As to the letter of 9 March addressed to him at Albany Prison he said at first he was not sure if he had received it.  He then said he did not receive it.  He conceded however that he did receive “…some letters but only the guidelines”.  He was not sure about the notice of 11 June 1999.  He did recall receiving the extracts which accompanied that notice showing ss 200, 201 and 502 of the Migration Act and the General Direction No 9 setting out the Government’s criminal deportation policy.  He said also that he can read English although not very much and that really he does not understand.  He learned English at age 16.  He claimed he had had no assistance in prison reading papers and letters sent to him. 

26                  I regard it as improbable that the notices were not sent to Mr Damanik and received by him.  Indeed, even before the liability notice of 11 June 1999 and well before his interview with the departmental officer on 20 August 1999, he sent a letter to the Department dated 10 June, the contents of which have already been summarised.  The letter in printed handwriting said:

“I am writing to you in refrence to possible deportation issue.” (sic)

If as he said, his ability in the English language was limited, then it would seem he had assistance with the preparation of the letter of 10 June.  The issue of deportation was also canvassed in a letter of support for him from Kathryn Swan to the Department dated 17 May 1999.  I am satisfied that by one means or another Damanik was aware that the Department had under consideration his possible deportation and that he was generally aware of the issues which he had to address in order to make a case against deportation.  In my opinion the probabilities are that he received at least the letters of 9 March 1999 and the notice of 11 June 1999.  It must be said, however, that the notices are written in the kind of language in which lawyers and bureaucrats delight but which for many people are difficult to comprehend  whether or not they speak the English language.  This is particularly true of the document sent out on 11 June and headed “Notice of possible liability pursuant to section 200 of the Migration Act 1958”.

27                  Damanik also gave evidence about his pre-deportation interview at Albany Prison.  It seems that he was interviewed over two days in two sessions of one to one and a half hours each by the same officer.  He said that when the officer came to see him he explained that the interview related to his liability to criminal deportation.  There was said to have been no interpreter present when the interview took place.  The officer took notes while the interview was going on.  At the end of the interview Damanik was asked to sign the document upon which the officer had written his notes.  He claimed he did not read the document and was not offered the opportunity to read it.  This would have been contrary to the instructions given to interviewing officers, a copy of which was exhibited to the departmental submission, which in turn was exhibited to the affidavit of Mr Corbould filed 3 May 2000.  It requires the officer, inter alia, to ask the interviewee whether the interviewee wishes to have the assessment for deportation deferred and if so why.  The interviewee is also to be informed that:

“(a)     he or she has rendered him/herself liable for deportation by reason of his or her conviction;

(b)       the purpose of the interview is to afford him/her the opportunity of making known his/her personal circumstances and anything that he/she wishes to be taken into account when the Minister considers his/her case.

(c)        he/she will be given the opportunity of reading, amending (if necessary) and signing each page of the notes.”

These instructions were signed by the interviewing officer and dated.  The content of the notes under each of the headings was brief.  In answer to question 24, dealing with the interviewee’s view of the offence and the reasons for committing it and the likelihood of re-offending and related factors was dealt with on a separate sheet.  So too was question 25.  Item 51 in the notes of interview required the interviewee to be invited to write a letter expressing his or her views regarding deportation or relevant matters.  This was noted as “already received” and was evidently a reference to the letter of 10 June 1999.

28                  On the face of it the notes on the record of interview, taken as a whole, were comprehensive and consistent with the other expressions by Damanik of the various matters going to the question of his possible deportation.  In my opinion, having regard to the terms of the letter of 10 June 1999 and its mode of expression and the letter from his wife of 17 May 1999, he fully appreciated both that he was at risk of deportation and the issues that it was necessary for him to address to try to avoid that outcome.  He was able to communicate adequately in the course of the interview, as evidenced by the notes of interview, what he wanted to say about the proposed liability to deportation.

29                  The argument on the natural justice ground, as it was developed at the hearing, flowed from the alleged inadequacy of the opportunity afforded Damanik to put his case.  It was said that as a consequence the Minister was deprived of the full picture of Damanik upon which he would have made a properly informed decision.  In support of that proposition counsel relied upon the oral evidence of Damanik and a friend, Mrs Montero, who has known Mr Damanik for about five years.  Counsel for Damanik put it thus:

“Essentially my submissions will be directed to this proposition, that by all accounts the applicant is a simple and good and good-natured man and that is the fact of the matter by all accounts that are available and would have been available to the department if they’d inquired properly into the matter and given the applicant proper opportunity to present the true picture of himself, but there could be no greater contrast between that and the picture which has been put to the minister and evidently adopted by the minister of the applicant which must be, in view of the order for deportation and the certificate for exclusion, a picture of the applicant as a callous and dangerous drug mastermind.”

It should be noted that the oral evidence from Damanik was put on without any prior affidavits or witness statements being filed or made available to the Minister’s solicitors.  Counsel for the Minister requested that if any adverse inferences on factual matters going to natural justice were to be drawn from that evidence, the Minister first be given the opportunity to put on evidence in reply.  In the event that course was not necessary.

30                  There is no dispute that the requirements of procedural fairness apply in this case and that the decision of the Minister, being reviewable under the ADJR Act, may be impugned for want of procedural fairness.  This stands in contrast to the scope of review available in respect of decisions which are judicially reviewable decisions for the purposes of s 476 of the Migration Act.  Such decisions are only reviewable for want of procedural fairness where actual bias is established.

31                  It is a well settled principle that the content of procedural fairness will vary from one statutory context to another and from one set of circumstances to another – National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296 at 326; Barratt v Howard [2000] FCA 190 at par 54.  Importantly, procedural fairness does not mandate a judicialisation of public administration.  Nevertheless in cases such as the present where there are significant consequences for the individual who will be affected by the decision and indeed for the family of that individual, considerations of fairness assume high importance.  This kind of fairness does not involve any contest with the public interest in seeing non-citizens who have committed serious offences being removed from the Australian community.  It is directed to the process by which such decisions are made rather than the weighting to be given to competing considerations in the exercise of the statutory discretions involved.  

32                  In my opinion the process which I have described earlier meets an acceptable standard of procedural fairness.  The picture which Damanik sought to convey to the Minister through his comments at interview and submissions and supporting material from his wife was conveyed in its essentials.  In the notice and interview processes which I have described above there are no deficiencies of natural justice which would vitiate the decisions under review.  In so saying I do not wish to be taken as indicating that the processes adopted reflect the highest standards to which an administrator with a real concern for fairness could reasonably be expected to aspire.  I have no doubt that the notices and procedures for interview could be improved.  Nevertheless, on the face of it they do not reflect a failure of natural justice.

33                  The record of interview, in question 34, suggests that Damanik was asked if he had any particular friends or relatives with whom there is a close relationship and includes the question “May we interview them.”  That question, if it were in fact put, might lead some interviewees to conclude that persons so mentioned would in the ordinary course be approached for their comments by the Department.  Damanik mentioned his wife, Mrs Jo-Anne Montero and a Mr Kinato in response to this question.  It also appears from the notes that he provided their telephone numbers to the Department.  There was evidently no departmental follow-up with either of them.  At the hearing Mrs Montero gave very supportive oral evidence about Damanik whom she had known for five years.  She painted a picture of him which is different from that conveyed by the bare bones of the departmental submission to the Minister.  On this point counsel for Damanik said:

“… one would have thought that the department, having been given names of persons who formed a network of his friends, might have called upon Mrs Montero and learned those things that we have learned today from Mrs Montero which indicate – and this is from, if I may so, an extremely solid citizen, a mother, a wife and the terms in which she has written are balanced and this is a person that should be heeded, that should have been heeded by the department, and in my respectful submission that the court should heed.”

34                  I am not concerned about the weight which might be given to Mrs Montero’s testimony had she been consulted by the Department before preparing its submission to the Minister.  What  has given me some cause for reflection is the apparent failure of the Department to interview either her or Mr Kinato or to advise Damanik that it did not intend to do so.  On the other hand, no submission of a breach for natural justice for this reason was put to the Court nor was any evidence adduced from Damanik that anything was in fact said to him which might have led him to believe that the Department would be approaching these people.  He obviously knew their telephone numbers as he gave them to the interviewing officer and even though he was in Albany at the time of the interview and subsequently until his transfer to immigration detention in January, he could no doubt have made telephone contact and arranged for letters of support or submissions to be sent to the Department by these friends.  Some months elapsed between the interview and the Minister’s decision in which those steps could have been taken.

35                  Although I have concerns about the way in which it appears this matter may have been approached in the interview, I am not satisfied that any breach of procedural fairness has been made out.  The ground of review based on want of procedural fairness fails.

Irrelevant Considerations

36                  The hybrid grounds of review and outline of submissions attached to the amended application for review identified three matters taken into account by the Minister which were said to be irrelevant to the exercise of his discretion.  The first of these was the claim that Damanik had no network of friends within Australia.  It was said that had Damanik been given notice of this contention, he would have had an opportunity of putting forward, among other things, a letter annexed to the application written by Mrs Montero which describes him as gentle, kind, friendly and simple, a brother to her, an uncle to her children, respectable, responsible, repentant and one who yearns for his family.  Thus framed, this is really just another aspect of the natural justice argument.  It does not identify an irrelevant consideration.  The principal relevant passage in the departmental submission is that which lists factors in favour of deportation and includes therein reference to the absence of any “apparent support network”.  Having regard to the advice at interview of one family friend in Perth and one in Melbourne, over and above his estranged wife and child whom he had not seen for some years, it was open to the Minister to conclude that there was no “support network” on any view.  Another relevant passage in the departmental submission appears thus:

“Degree of hardship to any Australian citizens or permanent residents, including the potential deportee’s family.

Mr Damanik has no family other than his daughter in Australia and he has not produced any evidence of support from friends although he did make mention of the Montero family in Beaconsfield WA and the Kinato family in Melbourne. “

In the context in which it appears in the submission, which related to hardship flowing from the deportation to other persons who are Australian citizens or permanent residents, it cannot be said that the comment about the limited nature of his non-family friendships was irrelevant. 

37                  The second irrelevant consideration was said to be the reference in the submission to the deaths of two young people at a nightclub on New Years Eve in January 2000 and the suggestion that other young people could die by Damanik’s hand.  The Department had adduced, it was said, no evidence that Damanik was in any way connected with these deaths and the Court should conclude that no such evidence exists.  Mentioning this matter in the submission was said to be scandalous and calculated to colour the Minister’s view of Damanik.

38                  The passage complained of appeared at p 10 of the departmental submission and was in the following terms:

“Likelihood that the potential deportee would be likely to prevent or discourage similar offences by other persons.

At this (sic)  time these offences were committed Mr Damanik was working for Tony Gunawan who at that time was owner of the Excapade Night Club.  He said he was employed between Mid 1996 and mid 1997 “helping keep the peace between Asians at Excapade”.

It was reported in the West Australian newspaper on 11 January 2000 that on New Years day two people aged in their early twenties died as a result of taking illicit drugs marketed as ecstasy.  This recent example illustrates the possible deleterious effects of ecstasy and similar substances upon the community.

Mr Damanik was part of the night club culture in which consumption of illicit drugs, especially ecstasy, is prevalent among young people.  Mr Damanik was involved with selling or supplying ecstasy, in these circumstances the deportation of Mr Damanik would provide a significant deterrent to other non-citizens who may be involved similar activities or contemplating similar activities.” (sic)

39                  In the interview conducted at Albany Damanik was reported as saying, following reference to a conviction for dangerous driving in 1994 that:

“From that time I started clubbing, taking drugs.  Ecstasy, marijuana, speed, try heroin.”

While the line of argument exposed in the passage cited from the departmental submission may be tenuous, it does seem to involve the proposition that Damanik would be known to people who frequent night clubs and use drugs, that his deportation would be known and that, to the extent that other non-citizens may be involved in similar activities his deportation would constitute a deterrent.  The dangers of the drug ecstasy were highlighted by the reference to the report in the West Australian newspaper on 11 January 2000 mentioned in the submission.  This was said to illustrate “the possible deleterious effects of ecstasy and similar substances upon the community”.

40                  While the placement of these particular factors and the generality of the observations made may be questionable it cannot, in my opinion, be said that consideration of these matters was irrelevant to the discretions to be exercised by the Minister.  Nor does the submission link Damanik personally to the deaths of two young people from the use of ecstasy.  Rather it illustrates the dangers of the drug.

41                  The third alleged irrelevant consideration was said to be the Department’s suggestion that Damanik’s daughter could maintain a relationship with him if deported because he would not be much further away than he is at present in Perth.  By way of submission in the grounds  annexed to the amended application it was said that Damanik’s daughter suffers from an incurable disease, that she may be unable to leave the country and if her father is deported will not see him again.  The passage complained of appears under the heading “THE BEST INTERESTS OF THE CHILD” and is in the following terms:

“Mr Damanik moved to Perth from Melbourne in late 1993 while his daughter and her mother remained in Melbourne.  In these circumstances the deportation of Mr Damanik to Indonesia would not cause father and daughter to be much further apart than previously existed prior to his imprisonment.  Although it would be more difficult to foster a close relationship in the future.”

The correctness of the inference offered in this paragraph equating separation between Perth and Melbourne with separation between Indonesia and Melbourne may be debatable.  However it is not an irrelevant consideration vitiating the exercise of the Minister’s discretion.

42                  The grounds relating to irrelevant considerations are not made out.

Failure to take into account relevant considerations

43                  Under this heading it was said that the Minister failed to take into account two relevant considerations, namely:

“(1)     The effect of deporting the father of a child who is an Australian citizen and the fact that Indonesia is a relatively poor and undeveloped country; and

(2)       Damanik dealt in drugs because he was dependent on them himself, that dealing was the only means of obtaining drugs and that he had not dealt in drugs for money.”

Mere failure to take into account a relevant consideration will not vitiate the exercise of a discretion unless it is a consideration which the decision-maker was bound to take into account.

44                  In this case the submission had regard to the effect on the relationship of Damanik with his child if he is to be deported.  The separation of his daughter was also considered under the heading in the submission relating to the degree of hardship which may be suffered by Damanik.  The question of the support available in Indonesia from his family and siblings was also addressed.  In connection with the motivation for Damanik’s involvement in the supply of drugs, the departmental submission accepted, as it was entitled to, the findings of the trial judge who regarded Damanik as a “lower to medium level distributor” but nevertheless “an important part of the distribution of ecstasy within the community”.  Moreover he rejected the contention that Damanik was simply a victim of circumstances or an addict driven by compulsion and found him to have been “well and truly part of the commerciality of the deal”.  In the light of those findings of the sentencing judge, the Minister could hardly have been expected to come to the contrary conclusion which is reflected in what is said to be the second relevant consideration that he did not take into account.  The ground relating to the failure to take into account relevant considerations also fails.

Unreasonableness

45                  Under this heading it was said that the Minister acted unreasonably in concluding that a person who by all accounts is a simple, thoughtful, warm-hearted, caring and trustworthy person, who was left lost in Australia and became drug-dependant and dealt in drugs to get drugs is a callous drug mastermind and a threat to Australia. 

46                  The findings attributed to the Minister are not reflected in the departmental submission which it is accepted the Minister adopted.  The ground of unreasonableness for the purposes of judicial review, involves the decision-maker acting so unreasonably in arriving at the conclusion he did, that no reasonable decision-maker could have arrived at that conclusion.  In my opinion it is plain that this ground is simply not viable. 

Conclusion

47                  For the reasons which I have set out above, the application will be dismissed with costs.

Associate:

Dated:              8 June 2000