FEDERAL COURT OF AUSTRALIA

Edwards v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 910

MIGRATION – deportation – application for review of deportation decision – application for review brought 17 years after deportation order made and implemented – motion for dismissal of proceedings as an abuse of process – whether application foredoomed to fail – effect of withdrawal of prior request for review by Administrative Appeals Tribunal – effect of delay – whether application futile

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 5, 6, 8, 9, 9(3), 11, 11A, 12, 14A, 32, 65, 65(1), 477(1) 477(3), 501, Pt II Div 1, Pt II Div 1A

Federal Court Rules O 20 r 2(1)(c)

Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 considered

Commonwealth of Australia, Re; Ex parte Marks (2000) 177 ALR 491 referred to

Cujba v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 110 cited

Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited

Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 cited

Walton v Gardiner (1993) 177 CLR 378 cited

SUSAN ELIZABETH EDWARDS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W210 of 2003

RD NICHOLSON J

13 JULY 2004

PERTH

THE COURT ORDERS THAT:

1.                  The respondent’s notice of motion be allowed.

2.                  The proceeding be dismissed.

3.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The respondent brings a notice of motion seeking that this proceeding be dismissed pursuant to O 20 r 2(1)(c) of the Federal Court Rules as an abuse of the process of the Court. 

2                     The application for review states that it seeks review of the decision of the respondent ‘to cancel the visa of [the applicant] and issue a deportation order on 13 June 1986’.  The applicant seeks a declaration that the decision of the respondent on 13 June 1986 was incorrect and that her visa should not have been cancelled and that her visa should be reinstated. 

3                     The decision made on 13 June 1986 was made by a delegate of the respondent.  It was headed ‘Deportation Order’.  It recited that the applicant was a non-citizen and that she had been convicted at the Perth District Court on 5 February 1985 of an offence, namely, breaking and entering a dwelling house with intent for which she was sentenced to 12 months imprisonment and which offence she committed on 14 May 1984.  It further recited that at the time of the commission of the offence the applicant was not an Australian citizen and had been present in Australia as a permanent resident for less than 10 years.  In purported reliance on the power conferred by s 12 of Migration Act 1958 (Cth) (‘the Act’) the respondent, by his delegate, then ordered that the applicant be deported from Australia.

4                     The applicant was served with a copy of the deportation order on or about 20 June 1986. 

5                     On or about 5 March 1987 the applicant, through her legal representatives, applied to the Administrative Appeals Tribunal for a review of the decision by the respondent’s delegate to deport her.  In doing so she had legal representation.  However, around 8 May 1987 the applicant withdrew her application for review. 

6                     On 25 March 1987, having received notice of an application for review to the Administrative Appeals Tribunal, the delegate of the respondent who had made the deportation order made a statement setting out his findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for his decision.  His findings on material questions of fact were those contained in pars 2 – 19 inclusive of a submission to him dated 6 June 1987 from a senior migration officer of the Department together with annexures.  He identified the documentary evidence on which he relied to reach the findings of fact.  In those findings it was said that the applicant was born in New Zealand on 18 June 1962 and was a New Zealand citizen.  She had arrived in Australia on 3 November 1973 aged 11 years 4 months.  It recorded that her marital status was single and that her parents (separated) and seven siblings resided in Australia and she had no close relatives overseas but had uncles and aunts in New Zealand.  There were further findings that her conviction on 5 February 1985 related to 15 charges of breaking and entering and associated offences giving rise to a sentence of imprisonment of one year on each of the 18 charges.  Four counts were to be served cumulatively and the remaining 14 counts concurrently.  There was to be an aggregate of four years with a minimum of two and a half years served.  A full record of her convictions commencing on 23 July 1976 was set out in the submission by the Departmental officer. 

7                     In his reasons for decision provided on 25 March 1987 the delegate of the respondent set out factors for and against deportation.  Factors favouring deportation were that although her offences were not serious offences they formed part of a long record of antisocial conduct consisting of crimes of dishonesty and, understood in the context of her previous criminal record, were considered to be serious.  There was considered to be a substantial risk of recidivism having regard to the applicant’s extensive record of convictions which commence when she was a child and in view of her behavioural problems and antisocial/antiauthority attitudes.  Also in the documents before the delegate was advice that at the age of four years the applicant had sustained ‘lead poisoning’ which developed into ‘epilepsy, minimal brain damage, hyperkinetic behaviour and mental retardation’.  It was said that she had not made any significant contribution to the Australian community, nor was she likely to do so.  Further, although her parents and siblings resided in Australia she retained little or no contact with them.  It was said that there may be a greater chance of rehabilitation if she was deported.  Against deportation was the fact that the deportable offences were not within the category of serious offences contained in the Criminal Deportation Policy and that the applicant had for over 13 years resided in Australia.  Although less than eight years of that time had been spent outside prison.  Absence of close relatives in New Zealand was a further factor against deportation. 

8                     The delegate recorded that after considering the above factors he reached the conclusion that in all the circumstances it was in the best interest of Australia that the applicant be deported.  This was because the benefit accruing to the Australian community by removing the risk that she may re-offend outweighed the hardship that she or others might suffer in the event of her deportation. 

9                     The respondent accepts that for the application to be dismissed it is necessary for the respondent to show a very clear case to justify summary dismissal:  Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.  In addition, it is said that proceedings will nevertheless constitute an abuse of process if they can be ‘clearly seen to be foredoomed to fail’ and if it is seen that the Court is ‘a clearly inappropriate forum to entertain them’:  Walton v Gardiner (1993) 177 CLR 378 at 394.

foredoomed to fail

10                  There are four reasons why the respondent says the motion should be accepted by the Court.  The first is that the proceedings are foredoomed to fail.  The first limb in support of this is that the application has not disclosed what power the Court is to rely upon.  That is, it is not made apparent whether the applicant seeks to rely on the Administrative Decisions (Judicial Review) Act 1977 (Cth) or upon the jurisdiction of the Court to grant constitutional writs under s 39B of the Judiciary Act 1903 (Cth).  I agree with the submission for the applicant that this is a type of deficiency not infrequently found in proceedings commenced without legal assistance.  It is capable of remedy in the course of the application.

11                  More fundamental is the second limb which is to the effect that the application disclosed no ground upon which any relevant decision of the respondent may be reviewed or set aside.  This is because there had not been a visa cancellation and therefore there could not be any reinstatement of a visa.  The issue arises again in relation to the fourth contention.

12                  It needs consideration against the following background which shows that at the relevant time the Act did not provide for the applicant to hold a visa.  The Act, at the relevant time, provided for entry permits and visas:  see Pt II Div 1 - Entry Permits:  s 6 and s 9; and Pt II Div 1A – Visas and Return Endorsements:  s 11 and s 11A.  An entry permit was the relevant permission for a person to enter or remain in Australia or both:  s 9(3).  A
non-citizen not being the holder of an entry permit became a prohibited non-citizen.  Under s 8, however, those provisions did not apply in relation to the entry into Australia of an immigrant being:

‘(e)      a person who-

(i)                 is for the time being exempted, by instrument under the hand of the Minister, from the requirements of this Division relating to entry permits;

or

(ii)               is included in a class of person who are for the time being so exempted, not being a person in respect of whom a declaration is in force under the next succeeding sub-section.’

13                  There was an exemption applying to persons from New Zealand, so that they were not required to hold an entry permit.  The applicant was not required to hold an entry permit and was not a prohibited immigrant. 

14                  The relevant decision to order the deportation of the applicant arose under s 12 of the Act.  Under that section, in its relevant parts:

‘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)          at the time of the commission of the offence the person –

(i)            was not an Australian citizen; and

(ii)          had been present in Australia as a permanent resident for a period of less than 10 years or for periods that, in the aggregate, do not amount to a period of 10 years; 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,

the Minister may order the deportation of the person.’

By s 14A, any period for which the applicant was confined in a prison for an offence shall be disregarded in determining, for the purposes of s 12, the length of time that she had been present in Australia as a permanent resident. 

15                  In response it is submitted for the applicant that allegations that she was unable to understand the implications of the deportation order or her rights in respect to challenging that order and that no steps were taken by the respondent to inform her of such matters provide sufficient basis to suggest that a real question exists to be determined.  However, that cannot be an issue given that at the times relevant to those events the applicant had legal representation. 

Prior review sought

16                  Secondly, the respondent submits that the applicant is seeking to re-litigate a case where she had previously sought review in the Administrative Appeals Tribunal but had not continued with that application.  In the circumstances of that discontinuance it is said it would be unjustifiably vexatious and oppressive for the respondent to have to now respond to a further challenge to the deportation after such a significant delay. 

17                  For the applicant it is said the scant detail of the nature of such prejudice has been provided by the respondent.  In reply the respondent draws attention to the reasoning of the Full Court in Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 at [7] applying Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495 – 496 per McHugh J.  I agree that it is relevant to a consideration of the unexplained delay of 17 years that a review process had been commenced but subsequently discontinued. 

Delay

18                  Thirdly, attention is directed to the delay in bringing the application.  The respondent submits that it is of such length that it would be unjust to require the respondent to respond to the claim.  This is particularly so, it is submitted, where there are no properly identified allegations of error and the decision was made nearly 17 years ago. 

19                  The applicant makes the same submission of absence of real evidence of prejudice.  In the context of the passage of nearly 17 years that cannot be determinative. 

Futility

20                  Fourthly, it is submitted that the application is futile as the remedy sought is of no practical utility.  Even if the applicant succeeded she would have no visa authorising her to enter and remain in Australia.  The Court could not, by either interlocutory or final relief, grant the applicant a visa to enter Australia.  The power to grant a visa by virtue of the Act rests solely with the Minister:  see the Act Pt 2, Div 3, Subdivision AC and in particular s 65.  The Court does not have the power to grant the applicant another visa:  see Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 (Weinberg J) and Cujba v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 110 (Conti J) at [82].  Further the power of the Minister is conditioned on there being a valid application for a visa:  s 65(1).  There is no such application. 

21                  The applicant’s record of offending clearly brings her within the definition of a ‘behaviour concern non-citizen’ under s 5 of the Act.  Before her deportation, the applicant was present in Australia by reason of being in a class of persons who did not require an entry permit to remain in Australia.  She is, however, a non-citizen.  The applicant holds no authority or permit by which she may re-enter and remain in Australia.  Although she is a New Zealand citizen, she does not meet the criteria for a visa under s 32, as she is a ‘behaviour concern non-citizen’.

22                  Additionally, there is evidence that the applicant was refused entry to Australia in 1997 by reasons of her character and that since then she has acquired more convictions and so would be liable to have any other visa application refused by reason of her character:  see s 501 of the Act.  She is currently serving a sentence of three years imprisonment in New Zealand which commenced on or about August 2003.

23                  The applicant accepts that the quashing of the deportation order would not provide the applicant with a right to re-enter Australia.  The applicant also accepts that her criminal record would make it likely that she would fail the character test under s 501 of the Act in any application for an appropriate visa.  Nevertheless, it is submitted that as the respondent retains a discretion to grant a visa the quashing of the deportation order would be a powerful factor for the discretion to be exercised in the applicant’s favour.  Further it is said it is clear that both the application and the relief include the issue of the quashing of the deportation order.

24                  It is not for this Court to speculate in what way the grant of relief might affect the respondent’s exercise of her discretion to grant a visa.  However, without conjecture, it can be said that the concessions made by the applicant viewed in their legal context and the requirements of the Act make it very unlikely that the discretion would be exercised in her favour.

25                  Essentially however, despite the references to the quashing of the deportation order, it is apparent that the application is directed to reinstatement of a visa the applicant never had and to setting aside of a cancellation which never occurred.  In seeking those legal ends the application is utterly futile.  It is not to be saved by a conjectural conclusion as to what effect, if any, the quashing of the deportation order might have on a future exercise of the respondent’s discretion to grant a visa.

conclusion

26                  For the above reasons I conclude the application is an abuse of process and must be dismissed.

Associate:

Dated:              13 July 2004