Akpan, A.D. v Minister for Immigration & Ethnic Affairs [1982] FCA 51

of power of Minister to deport - Migration Act 1958, ss.7 and

18, Administrative Decisions (Judicial Review) Act 1977, s.5.

ANIEFIOK DANIEL AKPAN v. JAN MALCOLM McPHEE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION

Date of Order: 7 April, 1982 Where Made: Sydney ORDER

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY No. G 16 of 1982 GENERAL DIVISION

BETWEEN ANIEFIOK DANIEL AKPAN Applicant AND TAN MALCOLM McPHEE.

By her amended application in this matter the applicant seeks judicial review of a decision made by the respondent Minister to deport her. The decision was made on 20 January, 1982, and pursuant to it a deportation order was signed. Judicial review is sought pursuant to s.5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). Sub-section (2) provides, inter alia, that the reference in paragraph 1(e) to an improper exercise of a power shall be construed as including a reference to:

(a} taking an irrelevant consideration into account in the exercise of the power; (b) failing to take a relevant con-

sideration into account in the exercise of a power; and

(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. in relation to the last paragraph, counsel for the applicant subsequently withdrew reliance upon it because, as he conceded, there is no evidence in this case of there being any relevant rule or policy. The paragraph cannot therefore apply.

The deportation order was made pursuant to s.18 of the Migration Act 1958 which provides that the Minister may order the deportation of a person who is a prohibited immigrant under any provision of the Act. It is contended by the Minister and conceded by the applicant that she became a prohibited immigrant by reason of the operation of s.7(3) of the Migration Act because a temporary entry permit which had been issued to her on her arrival in Australia had expired.

In support of the application the applicant has sworn affidavits, and there are also other affidavits which corroborate her in some of the matters to which she deposes. Objection was taken to the entirety of this material by counsel for the Minister on the grounds of relevance. I admitted the evidence subject to that objection. Part of the departmental file in relation to the matter has also

been placed before me. It contains a copy of the recommendation

which was made to the Minister for the deportation of the applicant; that recommendation is dated 14 January, 1982.

The Minister has noted his approval on the document, his approval being dated 20 January, 1982. A number of documents are appended to the recommendation, but at this stage it is not necessary to refer to the detail of them.

The applicant is a citizen of Nigeria and came to this country in 1980 in the company of a man wo whom she has referred in her evidence as Emanuel Ekpanyong. He is referred to otherwise as Uwem Okon John, and is conveniently referred to in the recommendation to the Minister as John.

I propose similarly to refer to him, although I recognise that that is one of his given names rather than a surname,

The material which was before the Minister and the evidence of the applicant and her witnesses establish that John has at all times claimed that the applicant was married to him in Nigeria before their departure to Australia. As both the recommendation to the Minister and her evidence establish, she has at all times denied that there was any marriage. That has apparently been the subject of continuing contention between the two people. There is evidence to be found in the applicant's affidavit and in other affidavits which tends to establish that for one reason or another, but

particularly for the reason that the applicant denied any

marriage and had begun to live with another man whose name is Mr. Sagiba, John began to engage in violent conduct, including physical attacks,upon the applicant. Amongst the representations which were made to the Minister before he made his decision was one dated 5 January, 1982, signed by Mr. Sagiba. Amongst other things, he said: "I first met Miss Akpan at the home of the Benjamin family in Stanmore, Sydney, where she was seeking refuge. At first I did not take particular notice of her plight, until Mr. Ekpanyong broke her eardrum and damaged her wrist. At this point I decided enough was enough and took her to live with my mother",

Later he said: "When Miss Akpan did not return to her shared address at Petersham, Mr. Ekpanyong came to my residence and commenced a long term of harassment and threats of violence. Records are also at Rose Bay Police Station, Sydney".

At this time Mr. Sagiba was married but divorce proceed- ings were pending. He said that when he was free to do so he wished to marry the applicant. She had agreed to marry him.

The evidence which has been given by the applicant in her affidavits and by her witnesses in their affidavits fills out

in some degree matters which are referred to in the recommen-

dation made to the Minister and in the various documents

which accompany that recommendation. It does not raise anything new but it perhaps more emphatically and in

more detail bears out the applicant's contention that

she was not married to John, that he was behaving violently towards her, that he had threatened her with further violence and that she wished to marry Mr. Sagiba when he became free of his earlier marriage.

As I have mentioned, it is the contention of counsel for the Minister that none of this evidence is relevant. That is because in his submission I can have regard only to the material which was before the Minister when he made his decision on 20 January, 1982.

Counsel for the applicant contends that the evidence is relevant because it tends to establish or to confirm that versions of the facts relevant to the various matters I have mentioned put forward by or on behalf of the applicant are to be preferred to those put forward by John. instead, as appears to be the case, of the matter being left in a state where the issues raised by these various contentions were left undecided, it puts the matter, so to speak, beyond doubt and shows the applicant's representations to the Minister to have been correct or at least correctly based in fact.

The reason for this approach by counsel for the applicant

is to enable him, when one comes to s.5(2) of the Judicial

Review Act, to argue that the Minister has taken irrelevant considerations into account and has failed

to take relevant considerations into account - see para- graphs (a) and (b).

In his argument counsel for the applicant equated the irrelevant considerations and relevant considerations with considerations which were either incorrectly or correctly based on fact, I do not think that that is the meaning which is to be given to those words in the two paragraphs of sub-section (2) to which I have referred. I feel confirmed in that view by what was said by Deane J. in Sean Investments Pty. Limited v, MacKellar (1981) 38 A.L.R. 363. His Honour was dealing with the same para-

"The ground of failure to take into account a relevant consideration will only be made good if 1t is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

That is not the type of thing which is involved in the con- tention of counsel for the applicant. As I say, he wishes to equate irrelevancy to factual incorrectness or relevancy

to factual correctness. I do not think that that is a

justifiable approach. For that reason I am in agreement with counsel for the Minister that the evidence sought to be relied upon by the applicant is in fact irrelevant and should be rejected. But that is not the end of the matter,

Counsel for the applicant, notwithstanding that that might be my conclusion, has contended that in a number of respects the recommendation which the Minister approved has either omitted relevant material or taken into account or included irrelevant material.

In summary it is submitted that the Minister in making his decision should not have taken into consideration any supposed marriage of the applicant to John; that he should have taken into consideration the probability - and I emphasise probability - of violence if the applicant is returned to Nigeria; that he should not have taken into consideration any question of whether John, who claimed to be her husband, wanted the applicant with him; and finally that he should have taken into account her wish to marry Mr. Sagiba who is an Australian citizen.

I have looked at the recommendation with these complaints in mind, In doing so I have had regard to the wide and general terms of s.18 of the Migration Act which does not

itself lay down any particular guidelines to be taken into

account when the Minister's discretion is being exercised.

considered by the High Court in The Queen v, Australian

Broadcasting Tribunal; ex parte 2HD Pty. Limited (1979) 144 C.L.R. 45 where the Court said (p.50):

"The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute."

To the same effect is the gudgment of Deane J. already referred to, in the case of Sean Investments. His Honour said (p.375), after referring to s.5 of the Judicial Review Act and particularly to sub-section (2)(b):

"This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as

relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. In this

James and Geoffrey Lane L.JJ.) in Elliott v, Southwark London Borough Counc11 (1976) 2 All

E.R. 7/61; (1976) I W.LLR. 499 at 507, in relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case: 'tit is clear that the matters which the local authority should consider .... vary from case to case, It is

t tnot for the court to prescribe a list of matters which must always be considered or

to prescribe which factors should be given more weight than others. It is worth repeat- ing that the function of the court, where such issues are raised, is not to substitute its own opinion or decisions on matters which Parliament has left to the judgment of the. local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.'

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards."

I refer in this context also to the decision of Fox J. in Borkovic v. Minister for Immigration and Ethnic Affairs (16 December, 1981, as yet unreported) especially at pp.4-5. The recommendation which is impugned is not set out in the form of reasons for decision. As was pointed out by counsel for the Minister, this is a case where, pursuant to s.13 of the Judicial Review Act, the applicant could have sought reasons but did not. But, as her counsel said, it may be that the obtaining of such reasons would not have taken the matter much further in relation to the four com- plaints which I have previously listed. In any event the recommendation shows that the competing contentions about

the marriage were taken into account. I refer in relation

to that matter to paragraphs 1, 8, 14, 16, 18, 22, 23 and 24, There was material before the Minister to which he presumably gave some weight concerning the violent conduct of John. I have already referred to

the representatitions made by Mr. Sagiba; there is other material in the recommendation to the same effect. The Minister was plainly informed that the applicant wished to remain with Mr. Sagiba and wished to marry him.

Thus all the matters which are referred to by counsel for the applicant appear in one way or another in the recommendation or in documents which accompany it. The recommendation is carefully drawn and it appears that the person making it gave the matter a good deal of consider- ation. Naturally he could not be conclusive about any of the facts, but could only write down what each of the relevant parties contended. His conclusion was (para.23):

"Both John and Akpan are prohibited immigrants. They are not eligible under existing legislation for change of status and the controversy surround- ing the marriage is not an issue which should prolong their stay in Australia. Mr. Sagibats letter indicates his intention to marry Akpan but he himself is not free to marry at this time.

John nor Akpan have, or are able to raise sufficient funds for their own departure and both have expressed their desire to return to Nigeria. Deportation would

appear to be the indicated course to effect their removal."

The recommendation in paragraph 24 was: "In all the circumstances it is recommended that you sign the attached orders for the deportation of John and Akpan. Mr. Sagiba's representations will then be replied to

departmentally. Mr. Umar of the Nigerian High Commission will also be informed of your

I should perhaps explain that the recommendation was for the deportation both of John and the applicant. The reference in paragraph 23 to the fact that the applicant had expressed her desire to return to Nigeria is supported in a atatement in paragraph 20 in which she is alleged to have said on 4 January, 1982, that she was tired of the situation and that she wished to return to Nigeria. That statement is not denied in her affidavits.

Having considered the matter in its entirety and taken into account the terms of the recommendation to the Minister and the other documents which accompanied that recommendation, I am quite unable to conclude that there is any warrant for interfering with his decision pursuant to s.5 of the Judicial Review Act.

I have reached the clear conclusion that this application

must be dismissed with costs, and that is the order which I make.

1 certify that this and tre JO prec. pages are a true copy of the reasons ior judgment herein of Tne Honourable