Barbaro v Minister for Immigration and Ethnic Affairs

Minister for Immigration and Ethnic Affairs v Pochi (1981) 36 ALR MAJED MAHMOUD HAOUCHER V THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS NO. WAG 76 OF 1987

WFSTERN AUSTPALIA DISTPICT PFGISTRY GPNERAL DIVISIO'

he. UAG 76 of 1987 MAJED SAEMNOUND RACUCHEP Anolicant

THr "INISTPP OF STATE FOR IMMIGPATION ANT CTHMIC AFFAIRS

WHFRE MADF: PFRTF THE COURT ORDERS THAT:-

1. The respondent be restrained until the hearing end

determination of this application or further order from

taking any stens to deport the applicant from Australia.

2. Costs of the claim for interlocutory relief be in the

If THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

No. WAG 76 of 1987 BETWEEN: MAJED MAHMOUP RAOQUCHER Applicant

THE MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS

This 1S an urgent claim for interlocutory relief to restrain the respondent from giving effect to a deportation order

until the hearing of a substantive application for judicial

The applicant is a 32 year old Lebanese national. He migrated to Australia on 1 February 1977. He has been resident here since that time, save for a period of 12 months between January 1978 and January 1979 when he returned to Lebanon to marry, and a further period of one month in 1980 when he went back

He has a not insignificant criminal record in Australia.

On 28 August 1980 he was convicted of assault arising out of a knife attack on his brother Galep and was sentenced to a

On 11 and 29 June 1982 he was convicted of disorderly

On 7 September 1982 he was convicted of nroviding a

On 30 September 1982 he was convicted of assault eccasioning bodily harm. This arose out of an assault upon his de facto wife in which he struck her on the head with a tin. The

He was placed on probation for 12 months and ordered to

On 28 February 1983 he was convicted of the offence of

On 29 May 1985 he pleaded guilty in the District Court at Perth to the offence of possession of cannabis resin with

He was sentenced to a term of 5 vears imprisonment with

a minimum of 2 1/2 years before he would be eligible for parole.

On appeal this was reduced to 3 years with an 18 month

A decision to deport the applicant had been made on 19 August 1986 under s.12 of the Migration Act 1958. He appealed

against that decision to the Administrative Appeals Tribunal.

On 29 January 1987 Deputy President Nicholson ordered that the decision be remitted to the respondent for reconsideration in accordance with the Tribunal's recommendation

The applicant next heard of the matter on 7 July 1987 when he received a letter dated 1 July 1987 from the Department of Immigration and Ethnic Affairs advising him that the respondent had decided not to accept the recommendation. Consequently, he

was informed, 1t was proposed to proceed with the deportation

The applicant has, it 18 said, been given no opportunity to be heard on the question of the disposition of the Tribunal's

He complains that he has been denied natural justice and

H1s application also raises unspecified non-observance of procedures required by law to be observed and improper exercise of the power conferred by the Migration Act. Nothing that was not of a purely speculative nature was advanced in support of these latter grounds and in my opinion, no relief could be granted in

The decision by the Minister to refuse to accept the

So much 18 recognised by the Ministerial Statement on Australian Criminal Deportation Policy made in the Parliament by

the then Minister, the Honourable Stewart West, on 4 May 1983.

In particular paragraphs 3 and 4 of that Policy are

"3. A person who has come within the criminal deportation liability has a right to a decision on his/her case as soon as possible after sentencing and a right to appeal to the Administrative Appeals Tribunal against a decision that he/she be deported.

4. It 1s the policy of the Austral1ran Government that recommendations of the Administrative Appeals Tribunal should be overturned by the Minister only in exceptional circumstances and only when strong evidence can be produced to justify his decision. Furthermore, 1t 1s the policy of the Government that, when the Minister decides to deport a person

contrary to a recommendation ef the Tribunal, the Minister will table in the Parliament at the first opportunity a statement of his/rer reasons For doing so."

The exceptional nature of the nresent case 15 reinforced by the observation of Smithers J. 1n Barbaro v Minister for

Immigration and Ethnic Affairs (1982) 46 ALR 123 at 130 where his

Honour noted that 1n the history of thre adrinistration of the Act the Minister had on only two occasions cCeparted from the

whether there had been any more such cases since 1982.

On the authority of the Barbaro decision it 1s plain that there 1s at least a case to argue the existence of an entitlement on the part of a prospective deportee to be heard before a decision 1s made departing from a recommendation of the

Smithers J., after citing the decision of the High Court

ln Minister for Immigration and Ethnic Affairs v Pochi (1981) 36 ALR 561, said at 130 1n the Barbaro judgqment:-

"It appears, therefore, that there 1s a duty in the Minister arising out of the fact that the Tribunal has made a particular recommendation. He must proceed "in the light" of it, he must "have regard" to ut. It is not to be thought that this duty 1s not a real one. It is not to be thought that Parliament did not intend that the recommendation of the Tribunal should be meaningful.

The Tribunal 1s of high status, the review is intended to be thorough and quasi-judicial, and the words of the Schedule have a positive import. If 1ts recommendation 1S to be meaningful, and 1f there 1s a duty on the Minister to treat 1t as a meaningful recommenéeation, then, when 1t is made, some benefit must accrue to the person in respect of whom it 1s made. The Minister 15 not bound to adopt all the findings of fact of the Tribunal or to give to inferences of fact the same weight and direction aS was given to them by the Tribunal. But 1f the recommendation 1s to he meaninaful then 1t would seem that the least that can be said 1s that where those findings of fact and inferences are to be departed from, the person concerned should be given the opportunity to make representations. Where questions of credibility are involved a _= procedure appropriate thereto would be essential. Such questions cannot be decided by any tribunal without seeing and hearing the person whose credit 1s in issue."

Counsel for the respondent submits that as the Minister has as yet given no reasons for his decision, 1t cannot be said that he has made any findings of fact inconsistent with those of the Tribunal nor drawn different inferences from facts found. Nor

can 1t be said that his decision has turned on questions of

That may be so, but I am prepared to accept that there 1S an axguable case that the right to be heard in relation to a proposed departure from a recommendation of the Administrative Appeals Tribunal is not limited to the above cited circumstances. It 18 an exceptional and unusual case and involves a decision that, without hearing from the applicant, has defeated what Smithers J. described as "... a real and legitimate expectation that the Minister would act in accordance with the

The Minister has heen prepared to give no undertaking to hold his hand for any perio0o@ pendirq the arqument of the application or even to allow full argument on the question of

The execution of the deportation order awaits the arrival of travel documents from Lebanese authorities and may be

The matter came on before me as a matter of urgency in the early evening of 22 July 1987. I made an interim order restraining the respondent from deporting the applicant until midday on 23 July so that I might consider my decision on the stay overnight. In my opinion, the balance of convenience plainly favours the applicant. The order I make 1s, I think, able to be Made under s.15 of the Administrative Decisions (Judicial Review)

Act and if that section be inapplicable then s.23 of the Federal

Court of Australia Act supplies the necessary powers.

l. The Respondent be restrained until the hearing and determination of this application or further order from taking any steps to deport the applicant from Australia.

2. Costs of the claim for interlocutory relief be in the cause.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of His Honour Mr Justice French.

Counsel:

• fox the applicant: Mr S. Owen-Conway instructed by Messrs. Mazza McCallum & Robinson

« for the respondent: Miss C. Francas instructed by the Australian Government Solicitor