Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic

[1990] FCA 22
(1990) 92 ALR 93
(1990) 21 FCR 193

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(Judgment by: Neaves J)

Minister for Immigration, Local Government and Ethnic Affairs
v.Kurtovic

Court:

Judges:
Neaves JRyan J
Gummow J

Hearing date: 7 February 1989
Judgment date: 7 February 1990

Sydney

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Judgment by:
Neaves J

On 2 March 1989, the court constituted by a single judge made a number of orders in a proceeding for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in which Veselko Kurtovic, the respondent to the present appeal, was the applicant and the Minister of State for Immigration, Local Government and Ethnic Affairs, the present appellant, was the respondent: see (1989) 86 ALR 99. The orders were in the following terms:

(1)

The deportation order of 28 January 1988 against the applicant is quashed and that it be set aside.

(2)

The Minister is estopped from signing another deportation order on the grounds relied on in making the deportation order of 28 January 1988.

(3)

Liberty is reserved to either party to apply for further orders in the event that they become necessary.

(4)

The Minister pay the applicant's costs of the proceedings including reserved costs or costs of previous proceedings where no costs were ordered.

(5)

Orders 1 and 4 be stayed until any appeal process is completed but I order that, until further order, the Minister be restrained from deporting the applicant from Australia.

(6)

The applicant's reporting condition 10 ordered on 2 December 1988 is deleted and in lieu thereof the applicant is ordered to report to the regional director of Immigration at Chatswood by telephone once a week in business hours.

(7)

These orders be taken out by the applicant and filed and served not later than 4 pm on 3 March 1989.

The Minister has appealed from the whole of those orders.

In making the deportation order of 28 January 1988, the Minister purported to act under s 12 of the Migration Act 1958 (Cth). That section provides:

12 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)

at the time of the commission of the offence the person --

(i)

was not an Australian citizen; and

(ii)

had been present in Australia as a permanent resident for a period of less than 10 years or for periods that, in the aggregate, do not amount to a period of 10 years; 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,

the Minister may order the deportation of the person.

It is not in dispute that, at the time of the making of the deportation order, s 12, in terms, applied to the respondent as he was not an Australian citizen, he had been convicted in Australia on two counts of manslaughter for which he had been sentenced, on 28 July 1983, to penal servitude for 10 years commencing on 16 December 1982 and he had, at the time of the commission of those offences, been present in Australia as a permanent resident for a period of less than 10 years.

The circumstances which have given rise to the issues between the parties are referred to in detail in the judgments to be delivered by the other members of the court and I need not set them out here.

The primary judge rejected a submission made on behalf of the present respondent that the power conferred by s 12 of the Migration Act 1958 had been exhausted and the section, therefore, provided no authority for the making of the deportation order of 28 January 1988. The circumstances which, taken together, were said to have resulted in the power being spent were that an order for the deportation of the respondent had been made on 23 July 1984 by the then Minister of State for Immigration and Ethnic Affairs, that that order had been revoked on 21 November 1985 following a recommendation to that effect by the Administrative Appeals Tribunal, that the decision embodied in the revocation order was confirmed by a further decision made on 6 November 1986 that a deportation order should not issue in respect of the respondent and that there had been no, or no significant, change in the matters relevant to the exercise of the power conferred by s 12 between the date of the revocation of the earlier deportation order and the making of the order under challenge.

In my respectful opinion, his Honour was correct in rejecting the submission. There is nothing in the language of s 12, or in the context in which it appears, to warrant the conclusion that Parliament intended that, absent any change in relevant circumstances, the power was to be regarded as spent upon its initial exercise in relation to a particular non-citizen. The power is, in my opinion, clearly one which may be exercised from time to time as occasion requires.

I am, however, unable to agree with the further conclusion reached by the primary judge that, given the existence of the power, the Minister was estopped from exercising it in relation to the respondent by reason of the terms of a letter dated 17 December 1985 addressed to the respondent by an official of the Department of Immigration and Ethnic Affairs consequent upon the revocation by the then Minister on 21 November 1985 of the deportation order made on 23 July 1984. The primary judge treated that letter as amounting to a voluntary promise that the respondent "would only be liable to deportation in the event of further offences" and regarded it as creating or encouraging an assumption in the respondent that that promise would be kept. His Honour answered favourably to the respondent the question whether he had acted to his detriment as a result of that assumption and concluded that there was no public benefit which outweighed and supplanted the unfairness to the respondent thereby caused.

For a number of reasons I have reached a conclusion on this aspect of the case which differs from that of the primary judge. The first of these reasons concerns the terms of the letter dated 17 December 1985. After referring to the decision of the Minister to revoke the deportation order and confirming an oral warning which was said to have been administered to the respondent in relation to his convictions for manslaughter, the letter contained the following crucial paragraph:

You are warned that any further conviction which renders you liable to deportation will lead to the question of your deportation being reconsidered by the Minister. Consequently, if you again become liable to deportation, you should expect that disregard of this warning will weigh heavily against you when the Minister reconsiders your case.

In my opinion the letter provides no sufficient foundation for a plea of estoppel. It contains no representation of fact and no promise by the Minister that the power under s 12 of the Migration Act 1958 would not be exercised unless the respondent was convicted of another offence, or other offences, of the kind, and in the circumstances, referred to in that section. The letter, on its proper reading, amounts, in my opinion, to no more than what it purports to be, namely a warning as to the likely consequences of the commission of a further offence.

In the second place, I am unable to discover in the evidence any sufficient basis for concluding that, to the knowledge of the Minister, the respondent relied upon the suggested implied promise and did so to his detriment.

Thirdly, to construe the letter as amounting to a promise such as that relied upon by the respondent would, in my opinion, amount to an impermissible fetter upon the future exercise of the discretion conferred by s 12: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 ; 17 ALR 513.

A further matter raised before the primary judge by the present respondent -- a matter upon which his Honour did not find it necessary to reach a definitive conclusion -- was that an issue estoppel arose as between the Minister (and his successors in office) and the respondent by reason of the recommendation by the Administrative Appeals Tribunal that the deportation order of 23 July 1984 should be revoked and its subsequent revocation in accordance with that recommendation. In my opinion, the submission lacks substance and must be rejected.

The remaining substantial matter is whether the respondent was afforded an adequate opportunity to make submissions to the Minister before the deportation order of 28 January 1988 was made. The evidence clearly establishes that on 22 October 1987, that is to say prior to the making of the deportation order, an officer of the Department of Immigration, Local Government and Ethnic Affairs had personally informed the respondent that the Minister proposed to consider the question whether a deportation order should be made and invited him to make written submissions to the Minister in that regard. The evidence, however, also establishes that the Minister, in exercising his discretionary power, took into account, and gave weight to, certain matters adverse to the respondent which were set out in reports dated 24 September 1986 and 12 February 1987 respectively made in relation to the respondent by officers of the Parole Service of New South Wales and a report by the New South Wales Prison Medical Service. Neither these reports nor the substance of their contents had been made available to the respondent by the Parole Board of New South Wales, relying for this purpose upon s 45 of the Probation and Parole Act 1983 (NSW).

Whatever may have been the justification for the prison or parole authorities withholding those reports from the respondent, the Minister, consistently with what was said by the High Court in Kioa v West (1985) 159 CLR 550; 62 ALR 321, was bound, if he proposed to take those matters into account, to afford the respondent an opportunity to make submissions in relation to them. This could have been done without necessarily giving the respondent copies of the reports if the Minister had adequate grounds for declining to do so. For example, the reports could have been made available to the respondent's legal advisers. But, by whatever means it could be achieved, it was incumbent on the Minister to give notice of the matters derived from those reports on which he intended to rely so that submissions could be made in relation to those matters if the respondent chose to do so.

The Minister's reliance upon those reports when he had failed to give the respondent an opportunity to make submissions in relation to them requires that the deportation order of 28 January 1988 be set aside.

For completeness, I should add that I agree with the other members of the court that the evidence does not establish that the Minister failed to take into account relevant considerations or took into account irrelevant considerations.

In the result, I would allow the appeal from so much of the judgment under appeal as held that the Minister was estopped from signing another deportation order on the grounds relied upon in making the deportation order of 28 January 1988 and that, until further order, the Minister be restrained from deporting the applicant from Australia. Those orders, being orders (2) and (5) made by the primary judge on 2 March 1989, should be set aside. Otherwise the appeal should be dismissed. I draw attention to order (6) which varied the order made by the primary judge on 2 December 1988. As the latter order is not before us, it is inappropriate that the court as presently constituted make any order with respect to that order or with respect to order (6). Either party is, of course, at liberty, if so advised, to make application to a judge of the court in that regard. As both parties have partially succeeded before this court, I would make no order as to the costs of the appeal.