FEDERAL COURT OF AUSTRALIA

Lesi v Minister for Immigration & Multicultural Affairs [2000] FCA 1882

BERNARD LESI v  MINISTER FOR IMMIGRATION AND MULTICULTRUAL AFFAIRS

NO S 33 OF 2000

O’LOUGHLIN J

ADELAIDE

4 SEPTEMBER 2000

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs which costs are to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     The applicant in these proceedings is Mr Benard Lesi, an Albanian national.  On 8 February 2000, the respondent, the Minister for Immigration and Multicultural Affairs, order that Mr Lesi be deported.  Mr Lesi seeks review of that decision by the Minister.  Mr Lesi, who is thirty-two years of age, arrived in Australia on 1 September 1996 intending to marry an Australian citizen and it was upon that basis that he obtained a visa to enter this country.  He did in fact marry, but unfortunately the marriage was not a success and, within a year, it had dissolved.  Shortly thereafter, however, Mr Lesi was able to form a de facto relationship with an Australian citizen, a Ms Cebreros, who is of Philippine extraction.  They now have two small children as a result of their union.

2                     Mr Lesi was convicted in the District Court of Adelaide on 5 November 1998 on two counts of possession of heroin for sale.  As a result of those convictions, he was sentenced to four years imprisonment, backdated to 19 October 1998.  A non-parole period of two years was fixed.  At the time of his arrest, when he was found in possession of the heroin, he was also found in possession of some $30,000 and that was the subject of a conviction of unlawful possession in the Adelaide Magistrates Court on 28 January 1999.  I have mentioned the conviction for unlawful possession, not because it plays any part in the deportation issue, but because I intend, later in my reasons, to make reference to the comments that were made by the magistrate at the time when he dealt with Mr Lesi on the charge of unlawful possession.

3                     When the Minister addressed the proposed decision to deport Mr Lesi, the Minister also decided to include as part of his decision a certificate which declared Mr Lesi to be an excluded person.  I will refer to the meaning and significance of the word “excluded” at a later stage in my reasons.  It is first necessary to identify the relevant provisions of the Migration Act 1958 (“the Act”) that deal with the subject of deportation.  In the first instance, they are to be found in Div 9 of Pt 2 of the Act and, in particular, ss 200 and 201.  The relevant parts of s 201 state that:

“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; or

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

                     (ii)       …

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

            section 200 applies to the person.”

4                     It is agreed that Mr Lesi is a non-citizen.

5                     Section 200 says:

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

6                     It was not in dispute that there was the potential for a deportation order by virtue of Mr Lesi’s personal circumstances; he was a non-citizen, the term of imprisonment which was imposed upon him was in excess of one year and he had not been in Australia for a period of ten years of more.

7                     The next provision in the Act to which reference must be made is found in Pt 9 of the Act and it is contained in ss 500 and 502.  I deal first with s 502 which, having regard to the submissions that have been made in this case, has achieved prime importance.  Section 502 states:

“(1)  If:

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

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

                     (iii)    …

                     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.”

8                     It is acknowledged that the decision of the Minister was one that was made by him personally.  It is acknowledged that the Minister also caused notice of the making of the decision to be given to both Houses of Parliament.

9                     It is challenged, however, that the Minister failed to give notice to Mr Lesi that he had so notified both Houses of Parliament.  I cannot find authority to suggest that there was any obligation on the part of the Minister to give notice to Mr Lesi of the giving of notice to both Houses of Parliament and no authority was cited in support of the proposition.  In my opinion, there was no such obligation on the part of the Minister.

10                  I turn then to s 500.  Section 500 of the Act states that:

“(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

            (b)     …

            (c)     …

…”

11                  There is, however, a very important qualification and that qualification applies in the circumstances of this case.  So far as is relevant, s 500 says that an application may be made to the Administrative Appeals Tribunal for a review of a decision of the Minister to deport, but that statement does not apply to a decision to which a certificate under s 502 applies and, in this case, the Minister has issued such a certificate under s 502, thereby depriving Mr Lesi of an application to the Administrative Appeals Tribunal to review the Minister’s decision on its merits.

12                  Mr Lesi comes before the court under the general provisions of the Administrative Decisions (Judicial Review) Act 1977 which permit the Federal Court to review the decision of the Minister on limited questions of law.  In particular, the Federal Court does not have the jurisdiction to review the merits of the case.  Hence, as was mentioned during the course of dialogue in Mr Lesi’s presence, it is not for me to say what I would have done or might have done if I had been in the shoes of the Minister.  I can only review what the Minister has done for the purposes of examining whether what he did came within, or did not come within, the law.  If, as a matter of law, the Minister made a mistake, this court has the power to intervene.  If, as a matter of law, the Minister did not make a mistake, then this court cannot intervene, even though this court might have come to a contrary decision to that made by the Minister.

13                  Mr Gibbons, counsel for Mr Lesi, said that when the time comes to consider s 502 and par (b) of that section, there are two tests that are to be complied with.  In support of the proposition he relied on remarks that were made by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR at 400.  Broadly, Mr Gibbons’ proposition is to this effect:  he states that in the first instance the Minister must give consideration to the seriousness of the circumstances giving rise to the making of the decision so as to determine whether an issue of national interest arises.  If the answer to that investigation is in the affirmative, then, according to Mr Gibbons, there is a second test to be complied with, and that is that the question must be further answered in the affirmative that the national interest is of such importance as to warrant the declaration that Mr Lesi be an excluded person.

14                  I have come to the conclusion that such a double interpretation is straining the ordinary meaning of the words of par 502(1)(b).  I think the effect of the section can be best understood by recognising the presence of the commas which make the phrase “because of the seriousness of the circumstances giving rise to the making of that decision” an adjectival phrase governing the primary question, that being “it is in the national interest that the person be declared to be an excluded person”.

15                  An excluded person, As Gunner’s case has told us, means a person who is excluded from the benefit of a merits review by the Administrative Appeals Tribunal. My interpretation of paragraph (b) is that, when the Minister assesses the national interest, he cannot make a declaration to exclude a person for any reason whatsoever.  He can only do so because of the seriousness of the circumstances giving rise to the making of the deportation decision.  So expressed, it seems to me that there is no room for the double test propounded by Mr Gibbons.

16                  Even if I were wrong in my interpretation of the section, I think that, as a matter of fact, there is material in the appeal book sufficient to show that the report to the Minister, and upon which he acted, contained the relevant information which would satisfy Mr Gibbon’s double test.  There appears the following passage from p 149 of the appeal book:

“If you – [the Minister] decide to exercise your discretion to sign a deportation order against Mr Lesi, you may then consider whether to declare him to be an excluded person under section 502 of the Act.  Such a declaration would have the effect of precluding review by the AAT of a decision by you personally to sign a deportation order against him under section 200.

In order to issue a certificate under section 502, you must decide that, because of the seriousness of the circumstances giving rise to your decision to sign a deportation order, it is in the national interest to do so.”

17                  The second and remaining argument that was raised by Mr Gibbons on behalf of Mr Lesi was that there was no sufficient evidence warranting the decision by the Minister that it was in the national interest to certify that Mr Lesi be an excluded person.  In support of that submission, Mr Gibbons referred at some length to the contents of the appeal book and to the highly favourable comments that have been made about Mr Lesi.  In particular Judge Lunn, who sentenced him in the District Court of Adelaide, referred to him as a good candidate for rehabilitation and accepted that Mr Lesi was contrite for his offences.

18                  Mr Boxall, the Magistrate who dealt with him in the Magistrates Court, spoke of him in glowing terms, saying that “He is apparently a model prisoner and is well regarded by those prison-keepers who have had dealings with him”.  Mr Boxall said:

“In the end, my overwhelming impression is that a 2 year non-parole period is adequate for this man.  As Judge Lunn said, he is a good candidate for rehabilitation and I suspect that at the end of his gaol term he will take his place in the community as a law abiding citizen, having learnt his lesson.”

19                  The official in the Immigration Department who compiled a report for the benefit of the Minister also said much which was in favourable terms to Mr Lesi.  She quoted the remarks of Judge Lunn and the Magistrate.  She added that:

“If Mr Lesi gains stable employment on his release and accepts the support of his de facto, it is considered that his risk of recidivism is low”.

Again, I quote from the report to the Minister:

“It is assessed that Mr Lesi does have strong family ties in Australia and would suffer both emotional and financial hardship of he were deported to Albania …  It is assessed that Mr Lesi’s de facto wife would suffer emotional and financial hardship if her were deported to Albania.  It is considered that the best interests of the child would be best served by having Mr Lesi remain in Australia with her.”

20                  At the time of the compilation of that report the second baby had not been born.  One could only assume that the recommendation would have been the stronger by virtue of the birth of the second child.

21                  The report concluded with two headings – “Factors In Favour Of Deportation” and “Factors Against Deportation”.  Under “Factors In Favour Of Deportation” there was one only statement and that was the “serious nature of deportable offence”.  In the “Factors Against Deportation” there were the four factors which I have already mentioned – that is, emotional hardship for the children if the father were to be deported, emotional and financial hardship for the de facto wife, emotional and financial hardship for Mr Lesi and, finally, his risk of recidivism being assessed as low.

22                  Despite the strength of those recommendations, the Minister saw fit to consider that the national interest warranted the action that he took.  One can only assume that he proceeded on the premise, as no doubt many members of the community would proceed, that trafficking in hard drugs is a most serious offence.

23                  I have, therefore, come to the conclusion that there was evidence of a sufficient nature to warrant the findings of the Minister and to prevent this court from interfering with those findings.  I have come to the decision with a measure of regret, but it is not within my power to express a contrary view.  I must dismiss this application and I must do so with costs.

Associate:

Dated:              20 December 2000