FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration & Multicultural Affairs
[2000] FCA 1426
CITIZENSHIP & MIGRATION – deportation order made by Minister on account of appellant’s criminal offences – document signed by Minister with intention that it exclude review of deportation decision by Administrative Appeals Tribunal (“AAT”) – document incomplete – whether it was open to the Minister to determine that it was in the national interest to exclude AAT review of the deportation decision – meaning of “national interest” – whether deportation decision was void for unreasonableness – whether decision to issue certificate was void for unreasonableness – effect of Minister’s failure to issue a complete certificate
WORDS & PHRASES – “national interest”
Migration Act 1958 (Cth) ss 200, 201, 253, 500 & 502
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 & 13
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 referred to
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred to
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 referred to
Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556 referred to
Bromley London Borough Council v Greater London Council [1983] 1 AC 768 referred to
Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 referred to
Gunner v Minister for Immigration and Multicultural Affairs [2000] FCA 200 referred to
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 referred to
KARM SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 461 of 2000
WILCOX, SPENDER and EMMETT JJ
SYDNEY
13 OCTOBER 2000
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IN THE FEDERAL COURT OF AUSTRALIA |
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ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
KARM SINGH Appellant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent |
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. It be declared that the document entitled “Certificate”, which was signed by the respondent, Minister for Immigration and Multicultural Affairs, and dated 17 August 1999, is not a certificate to which s 502 of the Migration Act 1958 (Cth) applies.
2. Otherwise, the appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
Appellant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
WILCOX J:
1 This is an appeal by Karm Singh against a decision of a judge of the Court dismissing an application under the Administrative Decisions (Judicial Review) Act 1977. The relevant decision was described in the appellant’s amended Application as being “the decision of the respondent” (the Minister for Immigration and Multicultural Affairs) “to deport the applicant pursuant to s 200 of the Migration Act 1958, and to declare, in the national interest, that the applicant be an excluded person, in accordance with s502(1) of the Migration Act.”
The statutory provisions
2 Division 9 of Part 2 of the Migration Act comprises ss 200 to 206 of the Act. Section 200 provides:
“The Minister may order the deportation of a non-citizen to whom this Division applies.”
3 Section 201 sets out the first of the cases to which the Division applies. It is the provision relevant to this case and reads:
“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
(ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:
(A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or
(B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and
(c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.”
4 Ordinarily, by virtue of s 500(1) of the Act, a deportation decision under s 200 is reviewable by the Administrative Appeals Tribunal. However, that subsection excludes from review “decisions to which a certificate under section 502 applies”. Section 502 reads:
“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
(ii) to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2);
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 facts
5 The primary judge set out an account of the facts that was not subjected to any criticism before us and which, consequently, I adopt. It was as follows:
“Applicant’s Background
The applicant was born on 1 March 1959 in the Punjab, India. He lived with his family at Amritsae [sic: scilicet Amritsar], a short distance from the Pakistan border.
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.
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.
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 [sic]. 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.
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.
In about 1990 the applicant met a man called D Singh (no relation) who also came from Amritsae [sic]. 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.
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.
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.
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.
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.’
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.’
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.
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.’
His Honour indicated that a reduction in sentence would be effected by reason of this consideration.
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.’
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.’
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 …’
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.
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.
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.
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.’
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.’
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.’
6 The primary judge went on to recount that submissions were invited by the Department of Immigration and Multicultural Affairs and the responses to these invitations by Mr Singh’s solicitor. As there is no claim of denial of procedural fairness, I need not summarise this material.
7 On 17 August 1999, the Minister for Immigration and Multicultural Affairs, the Honourable Philip Ruddock, considered a minute concerning Mr Singh that had been prepared by a departmental officer, Ms Karen Van Raak. The purpose of the minute was stated to be:
“To seek your decision on:
· whether to deport Mr Singh on the basis of his conviction for supply prohibited drug, having taken into consideration General Direction No.9 as well as any other relevant matters raised; and
· if you decide to deport Mr Singh, whether you also wish to declare him an excluded person; or
· if you decide against the deportation of Mr Singh having taken into consideration General Direction No.9 as well as any other relevant matters raised, whether you wish for a warning to be administered to him.”
8 Ms Van Raak set out numerous matters of fact and listed what she called “Principal Factors” as follows:
“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.”
9 The minute concluded with a sheet designed to allow the Minister to indicate his decisions. As completed and signed by the Minister, this sheet read:
“E DECISION
Based on the facts listed above, it is open to you to find:
a) that Mr Singh is liable for deportation under section 201 of the Migration Act 1958;
b) you wish to exercise your discretion and sign the deportation order; and
c) due to the seriousness of the circumstances giving rise to the making of the deportation decision that it is in the national interest to issue a section 502 certificate declaring Mr Singh be an excluded person; or
d) that a deportation warning should be administered to Mr Singh.
All matters raised in the submission CONSIDERED
Attachments A-N NOTED
Mr Karm Singh is liable for deportation under section 201 AGREED
Deportation order (Annex O) SIGNED
A section 502 certificate should be issued (Annex P) AGREED and SIGNED
A deportation warning should be administered to Mr
Karm Singh NOT AGREED
(Signed)
Philip Ruddock
Minister for Immigration and Multicultural Affairs
17 August 1999”
10 Mr Ruddock also signed two formal instruments, one called “Deportation Order”, the other “Certificate”. Nothing turns on the form of the deportation order; so I will not set it out. However, the form of the certificate is important. It read:
“CERTIFICATE
I, Philip Ruddock, Minister for Immigration and Multicultural Affairs, having decided that, because of the seriousness of the circumstances giving rise to my decision to deport Mr Karm Singh under section 200 of the Migration Act 1958 because of circumstances specified in section 201, it is in the national interest that Mr Karm Singh be declared an excluded person in accordance with subsection 502(1) of the Migration Act 1958.”
Dated this 17th day of August 1999
(Signed)
Philip Ruddock
Minister for Immigration and Multicultural Affairs”
The primary judge’s decision
11 As indicated, the appellant challenged what he took to be decisions under both s 200 and s 502 of the Act. He advanced numerous grounds of challenge to the primary judge, but all of them failed. Most of the grounds argued before the primary judge were abandoned on the appeal. The exceptions were submissions that each of the decisions was “an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power”: see s 5(2)(f) of the Administrative Decisions (Judicial Review) Act. This ground is often referred to by lawyers as “Wednesbury unreasonableness” on account of its genesis in the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
12 In considering Wednesbury unreasonableness, the primary judge dealt separately with the Minister’s decision to issue a s 502 certificate and his decision to make a deportation order.
13 The primary judge noted the reasons for issuing the s 502 certificate expressed by the Minister in a statement made pursuant to s 13 of the Administrative Decisions (Judicial Review) Act:
“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.”
14 The primary judge had considered a submission by counsel for Mr Singh that the Minister had failed to take into account a relevant matter: the alternative of holding Mr Singh in detention, pursuant to s 253 of the Migration Act, pending completion of any review by the Administrative Appeals Tribunal. The judge had rejected that submission, as related to the ground of inadequate consideration, on the basis that the Minister was not bound to take into account the possibility of detention. She did so by reference to the well-known statement of Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985) 162 CLR 24 at 39-40 to the effect that the factors a decision maker is bound to consider in making a decision are “determined by construction of the statute conferring the discretion”. Mason J had observed that, where the relevant factors are not expressly stated, “they must be determined by implication from the subject matter, scope and purpose of the Act.” The primary judge thought there was nothing in the Migration Act that required the Minister to consider the alternative of detention in determining whether or not to issue a s 502 certificate.
15 The primary judge responded to the submission that the Minister’s decision to issue a s 502 certificate was affected by Wednesbury unreasonableness by saying:
“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. …
The reasons for the s 502 decision, as set out in the section 13 statement, have already been quoted … 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.
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.
In my view the Minister’s reasoning process is open to legitimate criticism. However whether this amounts to Wednesbury unreasonableness involves different considerations.
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. …
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.’
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.
The real question is whether this is sufficient to establish Wednesbury unreasonableness.”
16 The primary judge answered this question in the negative. In doing that, she referred to a comment by Gleeson CJ and McHugh J, in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 587, about the difference between strong disagreement and Wednesbury unreasonableness. The primary judge also referred to the point made by Gleeson CJ and McHugh J, and by the Full Court in Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409, about the significance of the decision maker having political responsibility for the decision. The primary judge concluded by saying:
“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.”
17 The judge dealt more briefly with the submission that the deportation order was unreasonable in the Wednesbury sense:
“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.
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.
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: … 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.’
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.”
“National interest”
18 At the commencement of the appeal, counsel for the appellant sought leave to amend the Notice of Appeal so as to raise a ground not argued at first instance: that the primary judge “erred in holding, implicitly, that the Minister had exercised his power under s 502 of the Migration Act 1958”. There being no objection to the amendment, leave was granted and counsel developed the submission. The argument was that the term “national interest” referred to an interest that had an international flavour, such as is involved in relationships with other countries. Counsel referred to an example given by the present Minister, when he was the Opposition spokesman on migration matters, during the House of Representatives debate on the Migration (Offences and Undesirable Persons) Amendment Bill 1992. That Bill included a provision to similar effect as the present s 502. In his Second Reading Speech the Minister did no more than paraphrase its terms. But Mr Ruddock referred, in the context of issuing a certificate in respect of people who had committed overseas offences, to the importance of respecting the confidential nature of intelligence information received from international agencies. Counsel submitted this is what is meant by “national interest” in s502; concern about criminal activities lies outside that concept.
19 I do not accept this submission. Mr Ruddock spoke in the 1992 debate as an Opposition member. He was not the Minister in charge of the Bill. He had no responsibility for its contents or drafting and he was not in a position to inform the House of the purposes of the Bill, as perceived by its sponsors, the Government. In any event, his comment about maintenance of the confidentiality of international intelligence was but an example of a situation in which it might be appropriate to issue a certificate in the “national interest”.
20 No doubt the word “national” imposes some limitation upon the circumstances in which a certificate may be included in a deportation order. The word stands in contrast to a factor that is of only private or local interest. However, provided it may be said that the relevant interest is capable of being regarded as an interest of national importance, it is for the Minister to determine whether it is indeed a matter of national interest; and, if so, whether it justifies, in all of the circumstances, the making of an exclusion certificate. This approach is consistent with the interpretation of “national interest” applied by previous Full Courts, in Gunner at 409 and in Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556 at paras 114-115 (Cooper J) and 181-184 (R D Nicholson J with whom Spender J agreed).
21 Sadly, heroin abuse today occurs throughout Australia. It causes hundreds of deaths each year, mostly of young people, much misery and an enormous volume of criminal activity. It is a national problem. In my view it was well open to the Minister to regard a decision related to possible heroin trafficking as being a decision made “in the national interest”.
Wednesbury unreasonableness and the deportation order
22 I agree with what the primary judge said on this aspect of the case. The Minister’s decision to deport the appellant might be regarded as harsh, having regard to his accepted general good character and the unusual circumstances surrounding the commission of his offences. Mr Singh must have been put under great pressure by the threats made to him against the lives of his sons. However, it must be said the offences involved serious criminality. Only the circumstance that he happened to deal with an undercover police officer prevented Mr Singh from being the means of distributing into the community significant quantities of heroin.
23 Perhaps the strongest reason for regarding the Minister’s decision as harsh is its likely effect on Mr Singh’s wife, Penelope Austin, an Australian citizen. The material before the Minister suggested the marriage, then of some nine years duration, was happy and successful. It also included an account by Ms Austin of the effect upon her health of spending three months in India in 1995-1996. If this material was accepted, and it seems the Minister had no contradictory material, it would have been reasonable for the Minister to conclude that the making of a deportation order would have the effect either of breaking up the marriage or seriously compromising Ms Austin’s health. Many people might think that this potentially devastating effect outweighed whatever advantage there was in ridding Australia of an offender who had embarked on criminal activity, even serious criminal activity, only in response to unusual pressure and who was now assessed as presenting a low prospect of recidivism.
24 However, as the primary judge pointed out, a reviewing court is not entitled to find Wednesbury unreasonableness simply because the court disagrees – even profoundly disagrees – with the weight given by the decision maker to the various factors relevant to his or her decision. There must be more than that. In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821, Lord Diplock described unreasonable decisions as those which “looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them”. Words like “absurd”, “irrational” and “illogical” have often been used in this context. I venture to repeat a comment I made in Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 at 453:
“In numerous cases the comment has been made that unreasonableness, in this sense, is a difficult ground to establish. Probably the ground has its most frequent application in cases in which the challenger can demonstrate an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria. Parramatta City Council v Pestell (1972) 128 CLR 305 and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; 65 ALR 549 constitute examples of this type of case. There may be cases – although I think that they are likely to be rare – in which all of the factors germane to a particular decision point in one direction. If such a case arose, it would seem proper to brand as unreasonable a decision to the contrary effect. But ordinarily there will be factors pointing in each direction. Where that is the situation, the weight of those factors is a matter for evaluation by the decision-maker. In such a case, even though a particular judge might feel that the preferable decision would have been otherwise, that feeling would not be sufficient to justify the condemnation of the decision as unreasonable, in the relevant sense. As Menzies J said in Pestell (at 323):
‘There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible – it is right. The validity of a local rule does not depend upon the soundness of a council’s opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court.”
25 The matters I have mentioned go only to the soundness of the deportation decision. That is not a matter for the Court. I reject the submission that the Minister’s deportation decision should be held to be invalid on the ground of Wednesbury unreasonableness.
Wednesbury unreasonableness and the s 502 decision
26 The Minister’s intended decision to exclude the deportation order from AAT review may be more vulnerable to the application of Wednesbury unreasonableness than the deportation decision itself. The primary judge demonstrated the significant problems contained in the Minister’s reasoning. I would add that, even if the Minister was not bound to consider the alternative of detaining Mr Singh under s 253 of the Migration Act pending determination of any AAT appeal, the fact that this alternative was available is relevant to the question whether it was unreasonable to deny him the right of AAT review, primarily on the ground that he was not in custody.
27 However, it is not necessary for me to decide whether or not I agree with the conclusion on this issue of the primary judge; the Minister’s intention to exclude s 500 miscarried.
28 At para 10 above I set out the terms of the certificate signed by the Minister. Upon close scrutiny, it will be observed it consists only of a recital of the decision of the Minister to make the certificate. But there is no certificate; the document is incomplete. It fails to contain “a certificate declaring the person to be an excluded person”, as required by s 502(1)(b) of the Act.
29 It is sometimes said the eye tends to convey what the brain expects. That statement is graphically illustrated by the fact that the deficiency just mentioned appears to have escaped the notice of every one of the many people who must have seen the document before the hearing of this appeal. It was noticed by a member of this bench, apparently for the first time, towards the end of argument on the appeal. When attention was called to the matter, both counsel sought an opportunity to consider their positions. We invited them to lodge written submissions.
30 Mr Singh in his written submission, sought leave to further amend his Application so as to obtain declarations, first, that the document signed by the Minister “is null and void for the purposes of a subsection 502(1) certificate” and, second, that the deportation order is void. In relation to the second declaration, counsel points to the close relationship between the making of a s 502 certificate and the deportation order itself. He refers to Gunner v Minister for Immigration and Multicultural Affairs [2000] FCA 200. However, that case concerned a different question: whether the Minister had power to revoke a s 502 certificate without also revoking his decision to order the cancellation of the person’s visa, being the order in respect of which the s 502 certificate was issued. From the viewpoint of the applicant in that case, the problem was that the Migration Act contained no express power to revoke a s 502 certificate. The applicant relied on s 33(3) of the Acts Interpretation Act 1901, but that provision referred to revocation “exercisable in the like manner” to the original exercise of power; that is, on the facts of Gunner, an exercise of power that dealt simultaneously with cancellation and exclusion.
31 Counsel for the Minister opposes the application to amend, on the basis that it raises a new issue at the appellate stage of the case. Alternatively, he contends the two declarations should be refused. In relation to the first declaration sought, counsel argues the document signed by the Minister “is in fact a certificate under section 502”. He points out the document is headed “certificate”, it was signed by the Minister and included with the deportation order and records the decision of the Minister that it is in the national interest that the applicant be declared an excluded person. Reference is also made to Ms Van Raak’s submission to the Minister, the decision record sheet and the Minister’s subsequent s 13 statement. Alternatively, counsel argues, if the certificate is deficient, “any deficiency is no more than a slip or formal defect of a kind that the legislature could not have intended would render the certificate invalid”.
32 As a further alternative, counsel for the Minister submits the Court should, in its discretion, refuse the relief sought in relation to the certificate. Four reasons are advanced:
“(a) … it is clear that the Minister intended to have the ‘final say’;
(b) in this case, it is not possible for the Minister (given that the deportation order stands) to exercise again his section 502 power in relation to this deportation decision;
(c) the effect, therefore, of the Court granting a declaration would be to itself open the door to merits review by the AAT notwithstanding that it would be contrary to the plain intention of the person entrusted by Parliament to decide that question;
(d) there are important considerations for the Minister involved in whether he should have the ‘final say’. The Court ought allow to prevail the Minister’s assessment of the seriousness of the circumstances giving rise to the deportation order and his assessment of where the public interest lies – as those are matters that the Parliament has left for the Minister and not for the Court.”
33 In relation to the second declaration sought, counsel for the Minister argues that, if a declaration is granted concerning invalidity of the certificate, that does not mean the deportation order should also be set aside. He says:
“(a) It by no means follows from the fact that the section 502 power cannot be exercised in isolation that the section 200 power cannot be exercised in isolation. As was said in Gunner No. 1 at 408 [noted by Sackville J in Gunner No. 2 at para 21], these are separate exercises of power. The power conferred by section 200 does not depend upon simultaneous effective exercise of power under section 502;
(b) It cannot have been intended that an error of form in a certificate (in actual or purported compliance with section 502) would vitiate an otherwise lawful exercise of power under section 200;
(c) Further, it cannot be that any deficiency in the form of the certificate would have caused the Minister to decide differently whether the applicant should be deported;
(d) Alternatively, the relief sought in relation to the deportation order should be refused on discretionary grounds – and all of the above submissions are repeated in so far as they may bear on the exercise of that discretion.”
34 I accept the submission of counsel for the Minister in relation to the deportation order. As he says, ss 200 and 502 provide for two separate exercises of power. The fact that the s 502 power has not been validly exercised does not affect the exercise of the s 200 power; it is not as if there was reason to think that the decision of the Minister to make a deportation order was dependent upon there being a valid exclusion order. The second declaration sought by counsel for Mr Singh must be refused.
35 However, the situation is different in relation to the first declaration sought by Mr Singh. I reject all the submissions in respect of that declaration made by counsel for the Minister. I need only deal with the first of them: that the document signed by the Minister was an effective s 502 certificate.
36 There is no doubt the Minister intended to exercise the power conferred on him by s 502. Equally, however, there is no doubt that he failed to do so. For there to be a valid exercise of the power, the Minister must do more than reach a particular decision, and more than simply say he or she has reached that decision. The Minister must “as part of the decision (to deport), include a certificate declaring the person to be an excluded person”. The certificate is important; it is the instrument that excludes AAT review. Section 500 of the Act permits AAT review of decisions under s 200 because of circumstances specified in s 201; “other than decisions to which a certificate under s 502 applies”.
37 It does not much matter whether or not this Court makes the first declaration sought by the appellant; it is probably sufficient for us to note that the document signed by the Minister does not meet the requirements of s 502. That note would almost certainly suffice, if the appellant were now to apply to the Administrative Appeals Tribunal for review of the deportation order and the Minister were to contend that the Minister’s decision excluded review. It could not successfully be argued that the purported s 502 certificate set out in para 10 above excluded review.
38 However, the issue having been raised, it is appropriate for the Court to make a formal declaration. Although it is not common for the Court to permit the raising of a new issue at the appellate stage, to do so in this case involves no prejudice to the respondent. It is not as if the respondent could have improved its position by adducing additional evidence. Accordingly, I would exercise the Court’s discretion in favour of making a declaration.
Disposition
39 The appeal should be upheld in part. The Court should declare that the document entitled “Certificate” which was signed by the Minister and dated 17 August 1999 is not a certificate to which s 502 of the Migration Act applies. Otherwise, the appeal should be dismissed.
40 As the point about the form of the certificate was not raised at first instance, I would not disturb the order for costs made by the primary judge. And as the point arose out of an observation by a member of the Court, rather than being raised by the appellant, I would make no order as to the costs of the appeal.
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I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. |
Associate:
Dated: 13 October 2000
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALESDISTRICT REGISTRY |
N461 OF 2000 |
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BETWEEN: |
KARM SINGH Appellant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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JUDGE: |
WILCOX, SPENDER & EMMETT J |
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DATE: |
13 OCTOBER 2000 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
SPENDER J:
41 I agree with the reasons for judgment of Wilcox J and with the orders which his Honour proposes.
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I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. |
Associate:
Dated: 13 October 2000
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
N 461 OF 2000 |
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
KARM SINGH Appellant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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JUDGE: |
WILCOX, SPENDER & EMMETT JJ |
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DATE: |
13 OCTOBER 2000 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
EMMETT J:
42 The respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”) made an order under s 200 of the Migration Act 1958 (“the Act”) that the appellant, Karm Singh (“the Resident”) be deported from Australia. At the same time the Minister signed a document purporting to be a certificate pursuant to s 502 of the Act.
43 By his amended application for an order for review, the Resident sought orders quashing:
· the Minister’s decision to issue the s 502 certificate in respect of the Resident; and
· the Minister’s decision to issue a deportation order in respect of the Resident.
In the alternative, the Resident sought:
· an order quashing the Minister’s decision to issue the s 502 certificate;
· a declaration that the Resident is at liberty, as at and from the date of the declaration, to seek review of the Minister’s decision to issue a deportation order before the Administrative Appeals Tribunal (“the Tribunal”) in accordance with s 500 of the Act.
44 On 18 April 2000, a judge of the Court ordered that the application be dismissed and that the Resident pay the Minister’s costs of that application. From those orders, the Resident has appealed to the Full Court.
THE LEGISLATIVE FRAMEWORK
45 Section 200 of the Act provides as follows:
“The Minister may order the deportation of a non-citizen to whom this Division applies.”
Section 200 appears within Division 9 of Part II of the Act. Section 201 of the Act relevantly provides as follows:
“Where:
(a) a person who is a non-citizen has… 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;
………………………
(c) the offence is an offence for which the person was sentenced… to imprisonment… for a period of not less than 1 year;
section 200 applies to the person.”
46 It appears to have been assumed that where s 201 applies to a person, Division 9 applies to the person for the purposes of s 200.
47 Section 500(1) of the Act relevantly provides as follows:
(1) Applications may be made to the Administrative Appeals Tribunal for review of:
(a) decisions of the Minister under section 200 because of circumstances specified in section 201; or
………………………
other than decisions to which a certificate under section 502 applies.”
48 Section 502 relevantly provides as follows:
(1) If:
(a) the Minister, acting personally, intends to make a decision:
(i) under section 200 because of circumstances specified in section 201;
………………………
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.”
49 Finally, s 503 relevantly provides as follows:
“(1) A person in relation to whom a decision has been made:
(a) under section 200 because of circumstances specified in section 201; or
………………………
is not entitled to enter Australia or to be in Australia at any time during the period determined under the regulations.”
50 There is no reference to the term “an excluded person” in the Act other than in s 502. The proximity of s 502 to s 503 tends to suggest that the term “an excluded person” is intended to refer to a person who is, by the effect of s 503, deprived of any entitlement to enter Australia or to be in Australia. On the other hand, the only consequence under the Act of being disclosed to be an excluded person is that such a person has no right under s 500 to make an application to the Tribunal for a review of the decision made by the Minister under s 200 that the person be deported.
51 Where s 502(1)(b) refers to “that decision”, the decision referred to is a decision of the kind referred to in s 501(a) – Minister for Immigration & Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409. In the present circumstances, that means a decision made by the Minister under s 200 of the Act. However, s 500 applies to such a decision unless the decision is one to which a certificate under s 502 applies.
52 Section 502 does not speak in terms of a certificate applying to a decision. Rather, s 502 speaks in terms of a certificate being included as part of a decision. Nevertheless, it is clear enough that, where a certificate that satisfies s 502(1) is included as part of a decision under s 200, s 500 does not authorise the making of an application to the Tribunal for review of that decision.
53 The relevant effect of s 502 is that a decision will be one to which a certificate under that section applies where:
· the Minister intends to make a decision under s 200 in relation to a person – s 502(1)(a)(i);
· 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 – s 502(1)(b); and
· the Minister, as part of that decision, includes a certificate declaring the person to be an excluded person – s 502(1).
54 Thus, while the only consequence of a certificate being included as part of the decision is that s 500 does not authorise the making of an application to the Tribunal for review of a decision, the decision that the Minister must make under s 502(1)(b) is that it is in the national interest that the person be declared to be “an excluded person”. That appears to mean that the Minister must decide that, because of the reasons referred to in s 502(1)(b), it is in the national interest that the person not be entitled to enter Australia or to be in Australia.
55 The consequence of such a decision is not that the person is not entitled to enter Australia or to be in Australia. That consequence flows from the making of an order under s 200. Nothing flows from the decision under s 502(1)(b) other than the satisfaction of one of the prerequisites for the giving of a certificate declaring the person to be an excluded person. The observations made in Gunner’s Case concerning the effect of s 502 should be understood in that way.
FACTS OF THIS CASE
56 The Resident was born on 1 March 1959 in the Punjab, India. He lived with his family at Amritsar. In 1979, the Resident married Harjeet Kaur in India. They had two sons, one born in 1981 and the other born in 1984. The Resident and his wife separated in 1985 when the Resident left the Punjab. They were later divorced. The Resident’s sons lived with his parents in Amritsar until the sons came to Australia after 1995.
57 When the Resident left the Punjab in 1985 he went to Delhi. In 1987 he flew to New Zealand where he remained for about 6 months. On 15 May 1988, he arrived in Australia where he found employment. He remained in work until 1994 when his employment was terminated after he suffered a back injury at work.
58 After his arrival in Australia, the Resident met Penelope Austin, an Australian citizen and they were married on 20 October 1990. On 12 December 1994, the Resident was granted a permanent resident visa. Since 1994, the Resident 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 two sons to come to live in Australia.
59 In about 1990 the Resident met a man called D. Singh, who is no relation, and who also came from Amritsar. D. Singh returned to India shortly after the Resident met him but he and the Resident remained in touch. The Resident saw D. Singh again in 1996 in India. They played cards together and the Resident became intoxicated.
60 The next time the Resident saw D. Singh was in Australia, when D. Singh told the Resident that the Resident owed him a great deal of money as a result of their card game in India. The Resident claimed that D. Singh told him that if he helped him set up his business in Sydney then he would not pursue the Resident for the money that he owed. Otherwise “it may result in your sons being harmed”. At that time, the Resident’s sons were still in India.
61 The Resident took these things quite seriously. Not long thereafter, the Resident complied with D. Singh’s demands to begin selling heroin on his behalf. It appears from police records that he did so for a relative short time only. On 17 September 1996, the Resident and an acquaintance were arrested and charged with offences that took place between 5 and 17 September 1996.
62 On 22 May 1998 the Resident pleaded guilty on indictment to four counts of supplying a prohibited drug, namely heroin. On 22 December 1998, he was convicted and sentenced by Judge Wall in the District Court at Sydney. He was sentenced to a minimum term of two years and six months commencing from 17 September 1996 and expiring on 16 March 1999. An additional term of ten months was specified to expire on 16 January 2000. The minimum term after which the Resident was eligible to be released on parole was specified to expire on 16 June 1999.
63 On 17 August 1999, the Minister signed a deportation order that relevantly provides as follows:
“WHEREAS KARM SINGH also known as TONY SINGH is not an Australian citizen
AND WHEREAS the said KARM SINGH was convicted at Sydney District Court on the twenty second day of December 1998 of offences namely, two counts of supply prohibited drug, which were committed between the sixth day of September 1996 and the seventeenth day of September 1996, for which he was sentenced to a minimum term of imprisonment of two years and six months, and an additional term of ten months
AND WHEREAS at the time of the commission of the said offence the said KARM SINGH was not an Australian citizen and had been present in Australia as a permanent resident, or as a New Zealand exempt non-citizen, or special category visa holder for less than 10 years
NOW I, PHILIP RUDDOCK, Minister for Immigration and Multicultural Affairs, DO HEREBY ORDER, in pursuance of the power conferred upon me by Section 200 of the Migration Act 1958, that the said KARM SINGH be deported from Australia.
Dated this 17th day of August 1999.”
64 On the same day, the Minister signed a document entitled “Certificate”. That document is in the following terms:
“I, Philip Ruddock, Minister for Immigration and Multicultural Affairs, having decided that, because of the seriousness of the circumstances giving rise to my decision to deport Mr Karm Singh under section 200 of the Migration Act 1958 because of circumstances specified in section 201, it is in the national interest that Mr Karm Singh be declared an excluded person in accordance with subsection 502(1) of the Migration Act 1958.”
It is apparent that the document entitled “Certificate” does not contain any declaration that would satisfy s 502(1). It contains a recital of a decision, expressed as a participle, but contains no finite verb.
65 On the other hand, it is clear that the Minister intended to include a certificate under s 502 as part of the decision under s 200 in relation to the Resident. So much appears from a minute addressed to the Minister by an acting assistant manager of the Criminal Deportation Section of the Minister’s department. The Minister endorsed on the minute his decision to deport the Resident and his agreement to the issue of a s 502 certificate. However, as indicated above, the document that he signed did not satisfy the requirements of s 502(1).
GROUNDS OF APPEAL
66 The grounds relied on by the Resident in the Full Court differed from those advanced before the primary judge. It is unnecessary to deal with any grounds other than those advanced before the Full Court.
67 The first ground relied on is that the Minister misunderstood the concept of “national interest” referred to in s 502(1)(b) when purporting to exercise his discretion under s 502. As refined in the course of argument, it was suggested that the national interest is something different from the public interest and that the Minister erroneously had regard to whether it was in the public interest rather than the national interest that the Resident be declared to be an excluded person. Accordingly, it was said, the Minister either took into account irrelevant considerations or did not have jurisdiction to make the decision since the decision was made in excess of jurisdiction. That would have constituted grounds under s 5(1)(b) and 5(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Review Act”).
68 The second ground was that the Minister’s purported exercise of power under s 502 was so unreasonable that no reasonable person could have so exercised the power. That would constitute a ground under s 5(1)(e) of the Review Act.
69 The third ground was that the Minister’s exercise of power under s 200 was so unreasonable that no reasonable person could have so exercised the powers. That would also constitute a ground under s 5(1)(e) of the Review Act.
70 In dealing with the third ground, the primary judge considered the Resident’s application by reference to eight separate factors. Her Honour said that, in relation to each of them, it was suggested that, having regard to the observations made by Judge Wall on sentence, the Minister’s ultimate finding was so unreasonable that no reasonable decision-maker could have reached it. The Resident contended that the primary judge failed to take account of the accumulation of those eight separate factors as constituting unreasonableness in relation to the decision to make an order under s 200 of the Act.
71 A court may review a discretionary judgment that has failed to give proper weight to a particular matter. However, the court should be slow to do so because a mere preference for a different result will not suffice. Thus, 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 – Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 42.
72 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 they are merely emphatic ways of saying that the reasoning is wrong, they may have no particular legal consequence. Thus, where the existence or non existence of a fact is left to the judgment and discretion of an administrative 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, is acting perversely – Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 587.
73 While the primary judge was troubled by the Minister’s reasoning in relation to his decision to make an order under s 200, she was not satisfied that the decision was such that it should be characterised as an exercise of power that was so unreasonable that no reasonable person could have exercised a power in that way. The primary judge’s conclusion in that regard should not be disturbed.
74 In the course of argument, attention was drawn to the terms of the document purporting to be a certificate under s 502. As indicated above, the document is not expressed to be a declaration. While it may be clear enough that the Minister intended to exercise the power conferred by s 502, he did not do so. In the absence of the inclusion in the decision under s 200 of a certificate that satisfies s 502(1), the decision made by the Minister under s 200 could not be a decision to which a certificate under s 502 applies. There was simply no certificate included as part of that decision that satisfies the requirements of s 502(1). In those circumstances, there is no utility in considering the validity of the Minister’s decision to include such a certificate. The first two grounds referred to above therefore need not be addressed.
75 In the result, the appeal should be upheld in part and the order of the primary judge that the application be dismissed should be set aside. In lieu thereof there should be substituted a declaration concerning the effect of the purported certificate. Any application for review by the Tribunal of the Minister’s decision under s 200 may be out of time. Whether the Tribunal will grant an extension of time is a matter for the Tribunal. However, the qualification in s 500(1) concerning a certificate under s 502 is not an impediment to any such application. The appeal should be otherwise dismissed.
76 The Resident did not succeed either on the grounds originally raised before the primary judge or on the grounds originally raised in the notice of appeal. Accordingly, there is no reason to disturb the order for costs made by the primary judge. Since the ground on which the appeal has been upheld was not raised by the Resident, but arose as a result of observations made by the Court, there should be no order as to the costs of the appeal.
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I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. |
Associate:
Dated: 13 October 2000
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Counsel for the Applicant: |
Mr R Killalea |
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Solicitor for the Applicant: |
Coelho & Coelho |
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Counsel for the Respondent: |
Mr G Johnson |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
10 August 2000 |
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Date of Judgment: |
13 October 2000 |
