FEDERAL COURT OF AUSTRALIA

Craig v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 897

DOUGLAS KEITH CRAIG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 69 of 2004

DOWSETT J

7 JULY 2004

BRISBANE

THE COURT DECLARES THAT:

1.         The deportation order made against the applicant on 2 March 2002 was revoked by the letter of 11 September 2001.

THE COURT ORDERS THAT:

2.         The respondent pay the applicant’s costs of the proceedings, including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of New Zealand who arrived in Australia on 6 October 1960.  He is now 66 years of age, having been born on 7 February 1938.  On 2 March 2000, a delegate of the respondent made a deportation order in respect of the applicant acting pursuant to s 200 of the Migration Act 1958 (Cth) (the “Act”).  The applicant sought review of the deportation order in the Administrative Appeals Tribunal but was unsuccessful.  On 11 September 2001, Mr Peter Holthouse, the manager for Compliance and Investigations in Queensland, wrote to the applicant as follows:

‘Following a recent High Court decision, advice has been received from the Australian Government Solicitor (AGS) which indicates that the Minister for Immigration and Multicultural Affairs does not have the power to deport or remove certain British subjects who arrived prior to 1973.  This decision effects individuals who are the subject of deportation orders or whose visas have been cancelled under section 501, 501A or 501B of the Migration Act 1958, and who arrived in Australia as British subjects as permanent residents prior to 1973.

As you fall within this category, no further action will be taken to effect your deportation and arrangements have been made to have you released from immigration custody as soon as practicable.’

2                     This letter was apparently written following, and in reliance upon the decision of the High Court in Re Patterson; Ex parte Taylor (2001) 207 CLR 391.  The applicant has presumably gone about his business in this country since that date.  On 19 March 2004, a D Palmen, the supervisor of the “Character Assessment Unit” in Brisbane, wrote to the applicant as follows:

On 11 September 2001 the Department wrote to you to inform you that no further action would be taken to enforce the order for your deportation under section 200 of the Migration Act 1958 dated 02 March 2000.  This followed a decision of the High Court that indicated that certain British subjects who arrived in Australia prior to 1973 were not  ‘aliens’ and could not be deported or removed, under the Migration Act 1958.

In a more recent decision, a majority of the High Court has departed from the previous decision and held that British subjects who arrived after 26 January 1949 and have not been naturalised are  ‘aliens’ for the purposes of the Migration Act 1958.  I refer you to the decision of Shaw v MIMIA (2003) HCA 72 (9 December 2003) which now represents the law.  As a consequence, the decision of the Delegate of the Minister to order your deportation under section 200 of the Migration Act 1958 stands, and you are liable to be detained under section 253 of the Migration Act 1958 and removed from Australia.

You are hereby notified of the Department’s intention to enforce the decision to order your deportation of 02 March 2000.  You are hereby given 14 days notice from the date of receipt of our intention to enforce the decision.  This gives you an opportunity to make arrangements to depart Australia of your own accord.  Should you not depart Australia within this period, you will be detained pending your deportation.

3                     The applicant presently seeks to demonstrate that he is not legally subject to a deportation order.  He raises three arguments.  The first concerns denial of natural justice.  He says that given the letter of 11 September 2001, he had a reasonable expectation that he would be heard before any attempt was made to enforce the deportation order.  There is little substance in this argument simply because it seems that there is nothing much that could have been said.  The only point in respect of which he might have been heard was as to whether or not the subsequent decision of the High Court in Shaw v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 203 applied to him.  He has not suggested that it does not. 

4                     He also claims estoppel.  However, it was conceded in the course of argument that it was difficult to identify any appropriate detriment which may have been suffered in reliance upon the representation that he would not be deported. 

5                     The third ground is that the decision to deport was revoked.  The Act does not make express provision for a revocation of a decision for deportation, but s 206 of the Act contemplates it.  That section provides:

(1)       Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly.

(2)       The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order.

6                     In effect, the Minister now asserts that subs 206(2) applies and that the order should be treated as still in effect, even if execution of it has been delayed.  That seems to me to be a curious submission.  Section 206 creates a positive obligation to carry into effect an order for deportation.  The only circumstance in which the order is not to be carried into effect is if it has been revoked.  Thus the effect of the submission is that Mr Holthouse, in writing the letter of 11 September 2001, was encouraging a breach of the law.  It seems more likely that he was writing on behalf of the Department to indicate that the decision was revoked.

7                     In the course of argument, it was suggested that a distinction should be drawn between a finding that the letter itself revoked the decision, a case which is pleaded, and a finding that the letter merely evidenced a revocation, a case which is not pleaded.  Although that may be, as a matter of pleading, a point of some significance, I doubt whether it has any present relevance.  I find it difficult to believe that the Department had any intention other than to communicate to Mr Craig by the letter of 11 September the fact that the decision was revoked.  Whether it was revoked by the letter or by some other act was simply not addressed.

8                     In my view, having regard to the terms of s 206 in particular, the better view is that the decision to deport was revoked, and in those circumstances, I am of the view that there is no extant order justifying deportation.  I declare that the deportation order made against the applicant on 2 March 2000 was revoked by the letter of 11 September 2001.  I order the respondent to pay the applicant’s costs of the proceedings, including reserved costs.

Associate:                                                                                 Dated:              9 July 2004