Davidson v Minister for Immigration & Multicultural Affairs

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application for an order of review of a decision to detain the applicant, Mr Davidson, against whom a deportation order has been made. Mr Davidson is a citizen of New Zealand. The material before the decision maker indicated that he had been in Australia for a period of somewhat less than 10 years. He had been sentenced, for an offence committed while in Australia, to a term of nine months and an additional term of three months. 2 Under the Sentencing Act 1989 (NSW) the minimum term was a term which Mr Davidson must necessarily be required to serve. The additional term was one during which he might be eligible for parole. However, the minimum and additional terms set comprised, for the purposes of any law, the term of the sentence of the Court for the offence: Sentencing Act s 5. It follows, I think, that a question which I raised in the course of argument, that is to say, whether the Minister was entitled to order the deportation of Mr Davidson, must be answered in the affirmative. Accordingly, the further question, whether, if not, the Court had power to review the decision to detain on the ground of lack of authority to order deportation, does not arise. 3 Mr Davidson prepared his application for an order of review without legal assistance and was not legally represented at the hearing. Not surprisingly he has, I think, had some difficulty in understanding the precise nature of the power of the Court to review a decision to detain of the kind in question and the grounds on which it is open to the Court to review such a decision. The matters which Mr Davidson stressed during the course of the hearing were that he appreciates that what he did was wrong; that he was properly sentenced for his crimes; but that he now sees that a life of criminal activity is wrong and a mistake, and does not intend to offend again. 4 He told me - and this is reflected in material included in the documentation before the decision maker - that he has an offer of what he says is a well paid job; that he has family ties in Australia and in reality none in New Zealand; that he has on foot an appeal to the Administrative Appeals Tribunal against the deportation order and that he will be able to afford proper legal representation on that appeal only if he is able to obtain employment (particularly, the employment he says he has been offered) so that he may pay for the representation. 5 But it is necessary for me to consider whether the matters to which Mr Davidson refers relate to any of the grounds on which the Court may review a decision, under s 253 or s 254 of the Migration Act 1958 (Cth), to detain a person against whom a deportation order has been made. The Court's powers of review arise under and only under, s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). The grounds upon which review is available are the well established common law grounds, including particularly that the decision maker took into account irrelevant considerations or failed to take relevant considerations into account, and the decision was so unreasonable that a reasonable decision maker could not have made it. 6 I do not think on the material before me that any other ground might be available. It is well established - the decisions are discussed in Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 205 to which counsel for the Minister referred me - that the principal matters to which a decision maker is required to have regard are the prospect that the person against whom a deportation order has been made will make himself or herself available for deportation if required and matters going to any risk to which the community may be subjected if the person is released from detention. 7 Questions of risk to the community do not, I think, play any particular part in the present case and do not appear to have played any particular part in the decision made to detain Mr Davidson. On the other hand, the decision maker plainly took into account a number of matters which were regarded as relevant to the question whether Mr Davidson would present himself if required for deportation. They included a statement (which Mr Davidson referred to in argument before me as a mere figure of speech) that Mr Davidson would prefer to "do the runner" rather than return to New Zealand; they included also material concerning Mr Davidson's family ties (about the continuation of which there was conflicting material before the decision maker) and the offer of employment on release to which Mr Davidson referred during the course of the hearing. 8 The decision maker also took into account the unfortunate circumstance that it was not known how long the proceedings in the Administrative Appeals Tribunal would take. Those advising the decision maker record that the procedure could take up to 12 months. In that context I was referred by the Minister to a decision of Lindgren J in Kiet Tuan Vo v Minister for Immigration and Multicultural Affairs delivered on 8 December 1998, in which his Honour commented that if there were continuing delay in proceedings relating to the implementation of a deportation order there might come a time when, and there might be circumstances in which, it would not be a sustainable exercise of discretion to keep a deportee in detention. I think that may very well be so. On the other hand, though with some hesitation, I do not think it can be said that a delay in the Administrative Appeals Tribunal for a period up to a year (or perhaps even slightly more than that) would render a decision to detain so unreasonable that no reasonable decision maker could be expected to make it. 9 It is, of course, a most undesirable state of affairs that a deportee may be kept in detention for what may be a very long time pending an appeal to the Administrative Appeals Tribunal, during that time accumulating indebtedness to the Commonwealth, should the deportation order finally be affirmed; and continuing detention can make it difficult for a deportee to obtain legal assistance for the purposes of an appeal. The extent of that latter difficulty depends to a large extent upon where the deportee is detained. 10 In any event as I have said I do not think the decision made in this case can be regarded as failing the Wednesbury test: that is to say, I do not think it is possible to regard it as so unreasonable that no reasonable decision maker could have made it, nor do I think it is possible to regard the decision as one in the making of which the decision maker took account of irrelevant matters or failed to take account of the relevant matters, that is matters that the decision maker was required to take into consideration. 11 Accordingly, given the limited nature of judicial review and given that the court has no power to review, in a general sense, the merits of a decision to detain, the necessary consequence is that Mr Davidson's application must be refused. The Minister seeks costs; I think costs should follow the event. 12 The Minister will no doubt, given the circumstances and having regard to any further delays and their likely consequences, keep under review the question of the desirability of Mr Davidson's continued detention. 13 A matter relevant to the review may be the desirability that Mr Davidson should be able to obtain reasonable access to any legal assistance that he may be able to engage for the purposes of his appeal to the Administrative Appeals Tribunal. That may well depend, to a large degree, upon where Mr Davidson is detained and the practicalities of his access to any legal assistance scheme which may be available to him. 14 Those matters do not affect the outcome of the application, which is that it is dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.