Brehoi v Attorney-General of the Commonwealth of Australia

10. The Attorney-General has regard to the legislative purpose of the provision under which assistance is sought. Each statutory provision is based upon an element of public interest but its degree may vary from case to case.

11. If there is little or no public interest, aid will normally be granted only in circumstances similar to those which govern the grant of legal aid generally." Clause 15 of the Guidelines provides as follows: "In deportation cases under section 69 of the Administrative Appeals Tribunal Act 1975, the Attorney-General gives lesser weight to the prospects of success, as the liberty of the subject is involved." 12 In the result, refusal of the application was recommended because of "lack of public interest", and "prospects of success" - which had been assessed at "not high". The delegate of the respondent agreed with that recommendation. 13 As stated in the application, the grounds on which review is sought are: "1. The decision denies the right of the applicant to make an appeal, which is not an abuse of process of the Courts. If the applicant has the right to make an appeal and it does not constitute an abuse of process of the Courts, then the applicant has a right to such legal representation as is [sic] necessary. 2. The applicant has been in custody December 1993 and has been in custody on an immigration matter since August 1997 and is therefore without income or funds. The applicant by being in custody does not have access to the proper legal forum to satisfactorily represent himself in such a complex case. Further the applicant does not have a full grasp of the English language and the procedure of the Australian judicial system. 3. That the decision of the Attorney General was therefore improper in that the Attorney General failed to take into consideration the relevant circumstances and merits of this particular case thus described and is a denial of the natural rule of justice." 14 During the course of his oral submissions the applicant invoked the provisions of s 256 of the Migration Act which provides as follows: "Person in immigration detention may have access to certain advice, facilities etc. Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention." No point was taken by the respondent about the failure to refer to s 256 in the application for an order of review, and I afforded the respondent the opportunity of lodging written submissions on this issue, as it had not been raised until the morning of the hearing. 15 The proceedings in this Court are not by way of merits review. It is not for me to decide whether the applicant should be legally assisted by the Commonwealth in the proceedings in the AAT in which he seeks to challenge the Minister's deportation order. My role is confined to determining whether the decision under challenge is liable to be set aside on one of the grounds specified in the ADJR Act, taking into account the provisions of s 256 of the Migration Act.

Ground 1 16 Ground 1 asserts that the applicant has a right to the provision of legal assistance. In the circumstances I am prepared to assume, for the purpose of dealing with this ground, that the proceedings before the AAT are not an abuse of the Tribunal's processes. No submission was put by the respondent to the contrary. If the applicant had a right to the provision of legal assistance, then a decision refusing to grant it would be erroneous in point of law, and liable to be set aside. 17 Section 69 of the AAT Act, on its face, does not confer a right to the grant of legal assistance, as it confers a discretion upon the Attorney-General which may be exercised if the Attorney-General is satisfied as to certain matters. Further, the decision of the Full Court of this Court in Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265 establishes that AAT, whilst bound by the requirements of procedural fairness, is not obliged to ensure that an applicant before it is legally represented in proceedings for a review of a deportation order. Thus, there is no general law "right" to representation in cases such as the present. This ground is not made out.

Ground 2 18 Ground 2 lists factors which go to the merits of the application. As I have said, a decision on the merits of the application is a matter for the respondent, rather than for me. Even if I thought that all of the matters listed in Ground 2 were established, that would not of itself justify setting aside the decision of the respondent's delegate.

Ground 3 19 Ground 3 asserts: - breach of the rules of natural justice; - a failure to take into account relevant considerations; - a decision otherwise contrary to law, viz s 256 of the Migration Act. 20 The applicant was given the opportunity to put submissions before the decision-maker, and he did so. No basis for the claim of denial of natural justice has been identified, let alone made out. 21 A factor which must be taken into account in the exercise of the discretion conferred by s 69 of the AAT Act, is whether the applicant would suffer hardship if his application were refused. Otherwise the discretion is unconfined, except insofar as some implied limitation may be found in the subject matter, scope and purpose of the Act on the factors to which the decision-maker may legitimately have regard: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24, 39-40 per Mason J. 22 It was open to the respondent to take the Guidelines into account, although the Guidelines are not to be treated as mandatory criteria to be substituted for the statutory test: Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409, 420. 23 The applicant complains of a failure on the part of the decision-maker to take into account relevant considerations, hence the observations of Deane J in Sean Investments v MacKellar (1981) 38 ALR 363, 375 are pertinent: "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. The ground of failure to take into account a relevant consideration will only be made good if it 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." 24 In the first submission, the following factors were put forward on behalf of the applicant as being relevant to his application for assistance: (a) the applicant is in custody and without funds;

(b) the applicant has a limited understanding of the English language and a limited understanding of the issues involved in the AAT proceedings, such that he does not have the capacity to prepare and conduct his case;

(c) the applicant has lived in Australia since 1980, and may no longer have a right to permanent residence in Romania;

(d) matters going to the prospects of success in the AAT proceedings, which were described as "difficult to assess". In deportation matters, less regard is paid to the prospects of success because the liberty of the subject is involved;

(f) the public interest in the effective and efficient administration of justice;

(g) the potentially dire consequences to the applicant should he fail to secure effective legal representation. 25 The decision note of 4 November 1999, after discussion of the applicant's imprisonment, lack of income and assets, and the likely costs of the AAT proceedings, records that the author of the note was "satisfied on hardship", but recommended against a grant of assistance for lack of public interest, and because AAT was unlikely to find in the applicant's favour. Elsewhere in the note there is a reference to the applicant's limited command of the English language, to his depression, to the position of his Australian daughter, to the unlikelihood of being allowed to return to Romania, so as to give rise to an inference that all of these matters were taken into account in the making of 4 November decision. 26 The supplementary submissions note that the first decision accepted that the applicant would suffer hardship, but that the application was refused for "lack of public interest" and "prospects of success". Those issues were then addressed, coupled with a request that in reconsidering the decision, the Department should address the original submissions and the additional points raised in the supplementary submissions. 27 The additional points included: (a) a complaint that the author of 4 November 1999 recommendation had not referred to the fact that it was the respondent's policy to give less weight to the prospects of success in criminal deportation cases, as the liberty of the subject is involved. The failure to refer to that fact, combined with partially founding the decision on "prospects of success" was said to give rise to an inference that the Guidelines had been misconstrued in their application to deportation cases;

(b) the best interests of the applicant's daughter is a primary consideration according to the current Guidelines for deportation cases;

(c) the applicant has shown significant steps toward rehabilitation in specified respects;

(d) the applicant's case on hardship grounds is a compelling one, given the detriment he will suffer if he is not represented, the need for his child's interests to be considered and the prospect that he may well be indefinitely detained should his deportation be affirmed (as the Department negotiates with Romania to accept him). 28 The Guidelines make it plain (cl 2) that legal or financial assistance may be granted where the Attorney-General is satisfied that: · it would involve hardship to the applicant to refuse the application, and

· it is reasonable in all the circumstances to grant the application. "Hardship" is interpreted to mean financial hardship (cl 5) and the broad test of "hardship" is whether the applicant has the means to meet the cost of the proceedings without incurring serious financial difficulty (cl 6). In determining whether it is reasonable to provide assistance, regard is had, amongst other things, to the matters listed in cl 8 of the Guidelines, which is extracted in par 11 above. 29 It is apparent that the author of the document styled "Reasons for decision", which formed the basis for the decision given on 4 May 2000, interpreted the "hardship" requirement in the sense referred to in the Guidelines, as pars 8, 9 and 10 of that recommendation are confined to matters of financial hardship. 30 The author then addressed the issue of reasonableness, and under that heading addressed the following matters: (a) there are no important unresolved questions of Commonwealth law, hence there are no elements of public interest in the case;

(b) the applicant does not have high prospects of success in overturning the deportation order. That conclusion was reached after taking into consideration the applicant's expressed desire to have contact with his daughter on his release from prison. The author "questioned" whether the applicant would be successful in gaining access to his daughter as "there is no information" as to any attempt to remain in contact with the child during the breakup of the relationship or during his time in custody. "Taking this into consideration, I am of the view that it would be unlikely that [the applicant] would succeed in seeking contact with his daughter";

(c) under the heading "Nature and extent of the benefit or detriment that may accrue to the applicant", the following appears: "18. The applicant has been residing in Australia illegally and has been in custody since 1995. The applicant risks being deported back to Romania."

(e) the matter does not benefit the public or any section of the public. 31 There is no warrant for a conclusion that the applicant has been residing in Australia illegally. In the proceedings before me the respondent's legal representative accepted that this was an error, but submitted that it was immaterial, as the decision was based upon "lack of public interest" and "prospects of success". I accept that submission. 32 No reference is made in the reasons for decision to the following matters which had been advanced by the applicant as being relevant to the decision: (a) the applicant's inability, due to difficulties of language and comprehension, to prepare and conduct his case in AAT (see par 24(b) above);

(b) the prospect that the applicant might be indefinitely detained should his deportation be affirmed depending upon the attitude adopted by Romania (see pars 24(c), (g) and 27(d) above);

(c) the policy of the respondent that in deportation matters, less regard is paid to the prospects of success because the liberty of the subject is involved (see pars 24(d) and 27(a) above);

(d) the public interest in the effective and efficient administration of justice (particularly having regard to (a) above). 33 The question which then arises in whether I should be satisfied, from the failure to refer to these matters in the reasons for decision, that the respondent failed to take these matters into account, and if so whether that vitiates the exercise of the discretion to refuse assistance. 34 Before turning to those issues, I should say that I have considered whether the failure to pursue with the applicant the matters which the author of the 4 May 2000 recommendation "questioned" (see par 30(b) above), gives rise to a reviewable error based upon a failure to inquire where a duty to inquire was imposed by law: see Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155, 169-170 per Wilcox J. 35 As Wilcox J said in Foxtel Management Pty Ltd v Australian Competition & Consumer Commission (2000) 173 ALR 362, 417: "It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored." Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [187] recognises that it is for the applicant to advance whatever evidence or argument the applicant wishes to advance in support of a proposition which the applicant is propounding. The applicant put forward his relationship with his daughter (actual or prospective), as a material consideration, and it was for him to bring forward whatever materials on the issue which he wished to have taken into consideration. The decision-maker is not obliged to make the applicant's case, and may ordinarily decide the application on the basis of such information and material as the applicant puts forward: Detsongjarus v Minister for Immigration, Local Government & Ethnic Affairs (1990) 21 ALD 139. 36 This matter is not raised in the application. Although I raised the matter during the course of argument (the applicant being unrepresented), for the reasons I have given it is not appropriate for it to be further pursued. 37 Failure by a decision-maker to expressly refer to a matter, will not necessarily give rise to an inference that the decision maker did not consider the matter: see Burchett J in Australian Conservation Foundation v Forestry Commission (1988) 79 ALR 685 at 691: "There is no doubt that the omission to mention a matter expressly in a report or in reasons for a decision can lead a court, upon an examination of the whole of the context, to conclude that the matter was not considered. But it need not do so. It is a question of the proper inference. Not every matter taken into account must be set out expressly" (emphasis added). The policy issues behind this principle were enunciated by Fox J in Steed v Minister for Immigration & Ethnic Affairs (1981) 37 ALR 620 at 621: "It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his [sic] attention. It is not in anyone's interests that the judge or Tribunal be expected to set out every consideration which passes through his mind, although some, and usually the most significant, will be expressly dealt with". That aside, however, as Burchett J recognised in the passage cited above, it is clear that where no reference is made to a matter, it remains open to a court to infer that the matter was not taken into consideration by the decision-maker: see eg Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J at 349; Choo Ai Lin v Minister for Immigration & Ethnic Affairs (1996) 45 ALD 291 per Tamberlin J at 300-301. Thus, in summary, absence of reference to a matter will only ground a finding that a relevant consideration was not taken into account, where that conclusion is supported generally by the particular factual circumstances of the case. 38 Although the reasons for decision (par 6) contain the following statement: "A failure to satisfy a particular relevant matter as set out in the guidelines would not obviate the need for the delegate to consider other relevant matters, or to decide 'in all the circumstances, whether it is reasonable that the application be granted'." Thereafter the author confines his consideration of the matter to an application of the Guidelines. 39 The document is put forward on the basis that it contains the "reasons for decision" and the matters which were taken into account in formulating the recommendations. The topic of the nature and extent of the detriment which may accrue to the applicant is addressed in par 18, but apart from the erroneous reference to illegal residence in Australia, the only matter referred to under this heading is the risk of deportation back to Romania. There is no reference to the detriment flowing from the applicant's claimed inability, due to difficulties of language and comprehension to prepare and conduct his case in AAT, or to the claim that he faces the prospect of indefinite detention should his deportation be affirmed depending on the attitude of Romania. 40 The matters referred to in par 32 above were put forward by the applicant as being relevant. If they are accepted as factually true, they are capable of being relevant to the issue falling for decision, although whether any, and if so what, weight should be given to them is a matter for the decision-maker. 41 On the materials before me I am satisfied that the decision-maker failed to take these matters into account. I came to that conclusion because: - there is no reference to the matters in the "reasons for decision";

• that document purports to expose the factors which were taken into account in making the recommendation;

• the matters are germane to the issue, or capable of being so regarded;

• if it is right to say that the applicant is unable, due to difficulties of language and comprehension, to prepare and conduct his case in the AAT, that is so obviously an important matter that, had it been taken into account, specific reference to it would have been made. To a lesser extent, the same may be said of the other matters;

• of the terms of par 18 of the "reasons for decision". 42 As I understood the respondent's submission, it was that I should infer that the matters referred to in par 32 above were taken into account, but that it was considered by the decision-maker that they provided an insufficient reason for reaching a different result from that produced by the application of the guidelines. The respondent's legal representative accepted that the applicant's personal circumstances were material matters which ought to be taken into account, but the proper inference is that the decision-maker took account of them. 43 Having regard to the matters referred to in par 41 above that is not an inference which I am prepared to draw, particularly in a case in which a reasoned recommendation is put forward to a delegate who endorses her agreement to it. The natural inference is that she agreed to the recommendation for the reasons stated. One would not ordinarily infer that she took into account matters which were not stated, but which, in my view, should have been taken into account both by the person making the recommendation, and perhaps more importantly, by the decision-maker herself. 44 It follows that the application for an order of review should be allowed, the decision of the respondent given on 4 May 2000 should be set aside, and the application under s 69(2) of the AAT Act remitted to the respondent to be dealt with according to law. 45 Having regard to that conclusion, it is not strictly necessary for me to address s 256 of the Migration Act, but it is convenient that I should do so. The attempted invocation of s 256 of the Migration Act fails essentially for two reasons. First, the respondent is not the person responsible for the applicant's immigration detention, and it is to that person that s 256 is directed. Second, s 256 requires that there be given to a person in immigration detention: "all reasonable facilities for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention". In Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs (digested at (1994) 35 ALD 395 - but without the relevant extract) Drummond J said of the precursor to s 256 (and Article 16 of the Refugees Convention): "However, neither provision goes further than prescribing the denial to a person of access to the Courts or the denial to a person of full opportunity to obtain for himself legal advice and assistance. They do not impose a positive obligation on the decision maker or anyone else to ensure that the applicants are provided with such assistance at public expense." Those observations are equally applicable to s 256. There may be a further question as to whether an application to review a deportation order is appropriately characterised as a proceeding in relation to the applicant's immigration detention, but it is not necessary to come to a conclusion on that question. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Solicitor for the Respondent: Ms D Watson Australian Government Solicitor