N1112/00A v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 I have before me two applications by Applicant N1112/00A ("the applicant"). One application is for an extension of time in which to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"), constituted by Dr D Chappell, given on 13 August 1999. The other is an application for leave to be granted to the applicant to bring an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act")in respect of a decision of the respondent, the Minister of Immigration and Multicultural Affairs ("the Minister"), given on 9 June 1987. That decision was to make an order under s 200 of the Migration Act 1958 (Cth) ("the Migration Act")for the deportation of the applicant. The decision of the Tribunal was a decision affirming the Minister's decision to deport the applicant. 2 In order to explain the context in which the applications are made, it is necessary to say something about the background. The applicant was born on 1 July 1962 in Iran. After leaving school he bought a small business and was employed in that occupation until his departure from Iran. Prior to his departure, the applicant married an Iranian woman. The couple subsequently had two children. Between late November 1988 and early 1989, the applicant and his family left Iran to travel to India. The applicant and his family settled initially in Bombay and then moved to New Delhi where the applicant sought protection as a political refugee. On 18 June 1990, officials of the United Nations High Commission for Refugees in New Delhi certified that the applicant was recognised as a refugee under the mandate of the Commission. 3 In February 1991 the applicant applied for a permanent entry visa for Australia on refugee or humanitarian grounds. In March 1991 he was interviewed by immigration officials at the Australian High Commission in New Delhi. In May 1991 the applicant was notified by the Australian High Commission in New Delhi that his application for migration to Australia had been accepted. On 29 September 1991, in company with his wife and two children, the applicant arrived in Australia. On 8 July 1992 the applicant left Australia to travel to India and returned from that trip on 23 September 1992. Shortly after his return the applicant was arrested in relation to a number of drug-related offences. The arrest took place on 30 October 1992 after he had taken possession of a package posted from India that contained opium. 4 During 1994 the applicant's wife and children were granted Australian citizenship. In the same year their marriage began to break down and the applicant and his wife were separated. In November 1994 the applicant was convicted on two counts of assaulting his wife and daughter. In September 1995 the applicant pleaded guilty before the District Court of New South Wales to three counts: importation, of prohibited imports consisting of traffickable quantity of opium; possession of a traffickable quantity of opium imported into Australia; and possession of a traffickable quantity of opium reasonably suspected of having been imported into Australia. 5 Following those guilty pleas, the applicant was sentenced to a period of six months' imprisonment in respect of the first and third counts. In relation to the second count, the Court imposed a sentence of two years and three months with a minimum term of one year and six months. In 1997 the applicant was released from prison following completion of the minimum term of his sentence set by the District Court. 6 On 9 June 1997 the Minister's delegate, Mr Mark Anthony Sullivan, signed a deportation order in relation to the applicant. At the time of signing the order Mr Sullivan noted as follows: "A difficult case. The offence is serious. [The applicant] has few contacts in Australia. He is estranged from his wife and children. His present record is good. However the first offence happened on the day he arrived and the latter not long after. This behaviour so soon after arrival convinces me that deportation is appropriate." Accordingly an order was made under s 200 of the Migration Act. Section 200 provides that: "The Minister may order the deportation of a non-citizen to whom this Division [Division 9] applies." Section 201, which is in Division 9, provides: "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) when the offence was committed the person was a non-citizen who: (i) had been in Australia as a permanent resident: (A) for a period of less than 10 years; or …………………… 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; section 200 applies to the person." Thus it was clear that s 200 could validly be invoked by the Minister. 7 On 2 July 1997 the applicant lodged an application for review of the deportation order with the Tribunal. The hearing of that matter commenced in March 1998. During the first three days of hearing it was determined that further evidence would be required in relation to the best interests of the applicant's children as well as his status as a refugee and his involvement in drug and alcohol treatment while in prison. 8 The hearing resumed in June 1998 when a number of additional witnesses gave evidence on behalf of the applicant. On completion of that testimony, Mr Hurley, who was appearing for the Minister, made an application on behalf of the Minister for the Tribunal to exercise its discretion under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act")to refer the decision under review back to the original decision-maker for reconsideration. Section 42D(1) provides as follows: "At any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person." The subsequent subsections of s 42D go on to specify what is to be done upon such remitter. 9 The reason advanced on behalf of the Minister for the request to the Tribunal to exercise its power under s 42D was that the Minister had discovered that an error of law had been made by the original decision-maker. The original decision-maker had assumed that the applicant and his family had entered Australia under the provisions of a special humanitarian program. The Minister acknowledged before the Tribunal that the applicant had arrived on a refugee (class 200) visa. As a result of that mistake the Minister wished to reconsider his original decision according to the obligations that Australia had under international law as a signatory to the Convention relating to the Status of Refugees and the protocols associated with that Convention. 10 After hearing from Mr Hurley for the Minister, the member of the Tribunal asked the applicant what his attitude was to the application. The applicant was unrepresented in the proceeding but was assisted by an interpreter. Through the interpreter he said as follows: "A few points. The first is that by the date of 23rd of the 6th of 1997… it was decided that I should be deported from this country. Now, that's about a year ago… Is that the case that before the decision was made my file had not been looked upon or looked at to see whether or not I was a refugee? The second point is that by the date of 23rd of March 1998 in this Tribunal… I referred to documents… [and] pointed to the places where… the issue of me being a refugee was quite obvious… So why after all this time from last year… is it now that finally the Immigration and Multicultural Affairs Minister has accepted the proposition that I was a refugee… before this Tribunal one of the big issues was to prove whether I have been or whether I am a refugee or not… At the present time I'm being placed in the position of being under pressure from both side and I don't know which way I should be going…" Mr Hurley, for the Minister, in response to an inquiry from the presiding member, said: "my instructions are that if this matter is remitted for reconsideration, it will be given priority, but…a specific timeframe cannot be put on it. And my instructions are that the respondent still strongly impresses that they want this matter reconsidered." The applicant then said, through the interpreter: "Isn't it the case that this Tribunal is in the process of reviewing the decision? …isn't that the purpose of this Tribunal to review that decision. That same thing that the respondent insist?" The presiding member then said to the applicant: "…if I understand you correctly you are uncertain which option you should make, whether you should agree or not agree to have the matter referred back to the Minister, but that you believe that the Tribunal at the present time is the body that has the decision before it and it is that body which you think should be the body which makes the decision. Have I summarised that correctly?" The applicant responded through the interpreter, "Yes." The presiding member then said: "Well, I think I would have to read that as a basic view that [the applicant] does not consent… to the remittal back to the Minister of this decision." 11 The Tribunal gave reasons for rejecting the Minister's application for the exercise of discretion under s 42D. Amongst other things, the presiding member said the following: "The Tribunal is being asked to consider a request by the respondent… to exercise the discretion that the Tribunal has under section 42D of the Administrative Appeals Tribunals Act to refer the decision which is currently under review… back to the original decision maker… for reconsideration. ………………………… …it is now acknowledged that [the applicant] arrived on a refugee class 200 visa and… the respondent now wishes to reconsider its original decision according to law and according to the obligations, particularly that Australia has under International Law as a signatory to the Refugee Convention and the protocols associated with that Convention. …I have already, in my questioning of [the applicant] this afternoon, ascertained that he is in a state of some uncertainty about what he should do, but that it is his belief that this Tribunal already is considering the issue…and I have accordingly taken the view that he in essence does not agree with the proposal made to refer the matter back under section 42D. ……………………… …the powers under section 42D were not to be exercised simply because of an inadequate finding of fact or inadequate reference to evidence or inadequate reasons being provided by a decision maker. Nor should it be exercised simply because a decision maker wished to support his or her decision on a different basis from that which originally prompted the decision… ………………………… the Act, or this section, remains largely an untresspassed or untraversed area so that it does not make the matter an easy one or an easy decision… ……………………… In the present case we have now traversed some five or six days of hearing of evidence and while I think it is clear… that the wording of the section is such that referral back can be made… ………………………… I think that it is more likely that any referral would be made at an early, rather than a later stage in the hearing in most of the circumstances that I can envisage for the exercise of the discretion. I think that the discretion might well be exercised, for example, where a new fact situation emerged which completely changed the circumstances considered by an original decision maker, which would make it more efficient, less costly, time saving, if the matter were sent back for reconsideration to take account of that new fact situation. But that does not seem to me to be the case here. The Tribunal… is exercising its inherent power under the AAT Act to make a de novodecision on the merits of the case, a decision which falls within the well established framework of Re Drake and related cases. It is not simply reviewing an original decision, it is seeking to reach a correct and preferable decision considering all of the evidence, and all of the circumstances which have been brought to the evidentiary arena both by the applicant and by the respondent. If an error has been made…then that error does not have to be repeated and it can be taken account of. And it was acknowledged by the respondent earlier in the hearing and before this application was made that [the applicant] was in fact a refugee. Now, I think that, again, was very much an appropriate recognition and reflected the model litigant the respondent seeks to be. As part of its deliberation and consideration, the Tribunal is now quite able to take account of the obligations that Australia has under the Refugee Convention and how they impact upon [the applicant]. I assume, in particular, that Articles 32 and 33 of the Convention are the ones that would be applicable here and would, I assume, be applicable as well if the matter were to be reconsidered by the respondent. ……………………… In this situation, in summary, I can see no purpose of rationale at this stage in referring the matter back to the respondent and under the terms of section 42D. I do not think this is a situation where the Tribunal should exercise its discretion under that section and indeed, I think if it were to it could potentially be prejudicial to the applicant because it would require further delay or would take further delay, and as the respondent has not been prepared to give any undertaking as to how long any reconsideration would take I have to assume that even though it might be given priority it could amount to some significant amount of time. ………………………… …in summary, I am not prepared to exercise the discretion under section 42D as sought by the respondent. I am prepared to adjourn the hearing for a reasonable period if the respondent believes that it would be opportune to reconsider the matter and reach some terms of settlement under section 42C of the Act. Meanwhile, I see really no alternative but to continue the proceedings and to hear the remainder of the evidence." I have set out at some length the reasons given by the Tribunal because they constitute the only ground upon which it is sought to appeal from the Tribunal's decision to this Court. 12 The application for extension of time attaches a draft notice of appeal which specifies the following as the only grounds of appeal from the decision of the Tribunal: "The Tribunal erred in law by refusing the application made by the Minister to review the Minister's deportation order of 9 June 1997 signed by the Minister's delegate, Mark Anthony Sullivan, as the applicant who had previously been declared a refugee and was found to have suffered torture had a legitimate and reasonable expectation that those matters would be taken into account. In fact the applicant was mistakenly assessed by the Minister under humanitarian grounds." In the course of argument it was made clear that the ground was intended to refer to a wrong exercise of discretion by the Tribunal under s 42D. 13 The applications under the AD(JR) Act and under the AAT Act were both supported by the affidavit of the solicitor for the applicant, saying as follows: "2. My client instructs me that although he represented himself at the hearing before the AAT, when the decision was handed down he consulted solicitors known as the Business Law Office of Suite 404 Level 4, 29-31 Solvent Circuit, Baulkham Hills, NSW 2153, and instructed them to appeal the decision. I understand the matter did not proceed because he was unable to place his representatives in funds. I am instructed that the applicant for the best part of this intervening time lived in an office belonging to a friend as he had no accommodation of his own. 3. Although I was approached by the applicant at the beginning of September 2000 I was not formally instructed until 11 October 2000." 14 The application under the AD(JR) Act and the notice of motion for leave under the AAT Act were filed on 18 October 2000. They are clearly out of time under both statutes. I indicated initially that I was not satisfied, on the evidence of the solicitor's affidavit, that there was satisfactory explanation for the delay. I indicated that I would be disposed to grant an adjournment to enable appropriate evidence to be filed as to those matters. However, it was regarded as convenient by both parties that I consider initially the question of whether there is any arguable ground that could be raised under either the AAT Act or the AD(JR) Act that could lead to success on either count. If I were not satisfied that there were at least some arguable case, then it would be futile to grant an adjournment to hear evidence as to the reasons for failure to file applications in time. 15 I consider that any application under the AD(JR) Act is doomed to failure. As a matter of discretion where a right of review on the merits is available, the Court would not intervene under the AD(JR) Act. Clearly enough the decision of the Minister's delegate was flawed. No argument was advanced to the contrary. In the absence of a procedure whereby the delegate's decision could be reviewed on the merits, it could well have been appropriate to extend the time within which to bring proceedings under the AD(JR) Act. However, because of the availability of review on the merits, and the fact that the applicant elected to adopt that course, and has had a hearing on the merits, I consider that any application under the AD(JR) Act must is bound to fail. Accordingly there would be no utility in granting leave to bring an application under that Act out of time. 16 So far as the application under the AAT Act is concerned, it would be necessary for the applicant to persuade me that there is at least an arguable case that the ground specified is a question of law within the meaning of s 44 of that Act. If there had been a miscarriage of the discretion conferred by s 42D, that would, at least arguably, have been a matter that would form a ground of appeal under s 44. The question, therefore, is whether there are circumstances in which the discretion conferred on the Tribunal under s 42D must be exercised in favour of remitter. Putting it another way, did the Tribunal misdirect itself in the exercise of the power conferred by that section? 17 As the Tribunal said in its reasons, while the object of s 42D is not entirely clear, it would apply where, at an early stage in a proceeding before the Tribunal, it was apparent that the respondent acknowledged that a decision was flawed. In order to save the time of the Tribunal and the costs that would be involved in a proceeding before the Tribunal, it may well be appropriate in such circumstances, that the Tribunal, even though not by consent, remit a matter back to the decision maker. However, the circumstances in which the Tribunal would be bound to do so must be rare, if there are in fact any such circumstances. 18 In Re Company and Commissioner of Taxation (AAT decision no. 12865, 7 June 1998) Mr Block, Senior Member of the Tribunal, made some brief observations in relation to the operation of s 42D(1). Mr Block suggested that the section confers a power that would probably be exercised rarely. He suggested that it may be that the power should be exercised where the reasons of a decision-maker are so unsatisfactory that it is fair to infer that the decision-maker has not applied his or her mind to the decision or whether the reasons may be aptly categorised as a sham. 19 I express no view as to whether that proposition is correct. Even if it is, however, I do not consider that the decision under review in those proceedings is one that can be characterised as a sham, or one in which it could be said that the decision-maker has not applied his or her mind to the decision. The decision-maker prepared reasons for the decision which ran to some 14 pages. There is no reason to conclude that the decision-maker made anything other than a bona fide attempt to consider all relevant considerations and to make a real decision. 20 It is, of course, accepted by the Minister that the reasoning of the decision-maker was flawed because the decision-maker proceeded on a wrong assumption, namely that the applicant was resident in Australia under a humanitarian program rather than as a refugee. No similar complaint is made in respect of the Tribunal's decision. It is clear from the Tribunal's reasons of 13 August 1999 that it gave careful and detailed consideration to the applicant's status as a refugee before affirming the Minister's decision. 21 The circumstances that have arisen in the present case might be contrasted with circumstances that can arise under the Migration Act where the Minister, contrary to the prohibition contained in s 47(3), considers an application that is not a valid application. In those circumstances, it may be, assuming that no valid application is ever lodged, that the only decision that a Tribunal on review could come to is one setting aside the Minister's decision and remitting the matter to the Minister - see Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456. However, the decision to which the Minister's delegate came is one that was open to the Minister. It may be that the decision was flawed. It does not necessarily follow, however, that the decision was wrong. Even if the matter had been remitted in accordance with the Minister's request, the Minister after proper consideration may have reached the same decision. 22 Even where a decision-maker exceeds the authority vested in that decision-maker, but makes a decision that is otherwise open to the Minister, the Tribunal may embark on a hearing of a review of that decision on the merits - see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 317 ("Lawlor's Case"). A fortiori,where the decision-maker had power to make the decision, albeit that the decision was flawed, the Tribunal has power to embark on a consideration of the merits underlying the decision. 23 Certainly, Lawlor's Case was decided before s 42D was enacted. However, I do not consider that the effect of s 42D is to remove power or jurisdiction from the Tribunal to consider a matter. The purpose of s 42D is simply to confer a discretion on the Tribunal as to whether it will embark on such a review. I do not consider that there is any arguable case of error on the part of the Tribunal in the exercise of its discretion under s 42D. It follows in my view that any appeal on that ground alone is doomed to failure. There is therefore no utility in considering the question of whether or not adequate excuse has been advanced for the failure to lodge the notice of appeal in time. It follows that the motion for leave to do so should be dismissed. It would also follow, I would think, that the application brought under the AD(JR) Act should be dismissed as incompetent.