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: Ryan J)

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

Court:

Judges: Neaves J

Ryan JGummow J

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

Sydney

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Judgment by:
Ryan J

The appellant, the Minister for Immigration, Local Government and Ethnic Affairs, appeals against an order of a single judge of this court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) quashing and setting aside a decision of the appellant to order the deportation of the respondent: see (1989) 86 ALR 99.

On 16 June 1983, the respondent was convicted of the manslaughter on 16 December 1982 of his parents-in-law and on 28 July 1983 he was sentenced to 10 years' imprisonment. On 23 July 1984, the then relevant Minister signed an order for the deportation of the respondent based on the commission of the offence of 16 December 1982. The respondent then applied to the Administrative Appeals Tribunal (the AAT) for a review of the Minister's decision that he be deported. After a hearing of that application, the AAT constituted by Mr Deputy President Todd on 6 September 1985 recommended to the Minister that the deportation order in respect of Mr Kurtovic be revoked and remitted the matter to the Minister for reconsideration in accordance with that recommendation.

In accordance with that recommendation, the successor to the previous Minister on 28 November 1985 revoked the deportation order. That revocation was notified to Mr Kurtovic by a letter of 17 December 1985 from a departmental officer on behalf of the regional director of the Department. Omitting formal parts, that letter was in these terms:

I am writing to confirm that the Minister for Immigration and Ethnic Affairs has decided to revoke the deportation order signed against you.

This letter is to confirm the oral warning administered to you today in relation to your conviction for manslaughter at Sydney District Court on 28 July 1983 which rendered you liable to deportation from Australia pursuant to s 12 of the Migration Act 1958.

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.

I enclose relevant extracts from the Migration Act on deportation liability and a copy of the Government's criminal deportation policy. I suggest that, in your own interest, you study these papers fully.

On 24 January 1986, the New South Wales Parole Board refused an application by Mr Kurtovic for release on parole. On 18 July 1986, the New South Wales Court of Criminal Appeal adjourned the hearing of an appeal against that refusal. When announcing the adjournment, Street CJ observed:

This matter comes before the court as an application to review the decision of the Parole Board of 24 January 1986 to withhold parole from the applicant. The basis of the application is that the Administrative Appeals Tribunal, in September of last year, recommended to the Minister that a current deportation order should be revoked. The Minister acted in accordance with this recommendation and revoked the deportation order. It is proposed to contend that the same reasons that led to the recommendation to revoke the deportation order should lead to the granting of parole. We should say that we have the gravest concern regarding weight of those reasons when considered in the context of the entirety of the information in the papers before us.

The papers before the court in this matter disclose matters of grave concern regarding the justification for the revocation of the deportation order. They include material that was not before the Administrative Appeals Tribunal. There are also subsequent representations from persons who consider that they are placed at risk in consequence of the prospect of the applicant not being deported; these, and the other material, are plainly of very significant relevance.

It seems to us that the matter is one in which the Minister might well wish to reconsider his decision revoking the deportation order, in the light of the whole of the material in this file. There is a compelling case for concluding, pursuant to s 8 of the Migration Act 1958, that deportation would be appropriate and for concluding that, in the entirety of the circumstances, the acceptability of the recommendation of the Administrative Appeals Tribunal should be reconsidered by the Minister. Until that has taken place it would seem to be preferable that the matter be adjourned.

The applicant in fact seeks an adjournment on the basis of difficulty in obtaining certain documents, so that the adjournment in fact will both meet the immediate difficulties concerning the applicant in preparing the matter, but more importantly it will afford the Minister an opportunity of considering again the question of the applicant's deportation. In order to assist the Minister in that regard, we direct that the Minister be furnished with a complete copy of the papers before the court in today's application, together with a copy of these observations.

The same Minister who had acted on the AAT's recommendation to revoke the deportation order did reconsider his earlier decision but decided not to issue a new deportation order. Shortly afterwards the Court of Criminal Appeal dismissed Mr Kurtovic's appeal against the withholding of parole.

On 22 October 1987, Mr Kurtovic was interviewed by a departmental officer and told that further consideration was to be given to the question of deportation. In the course of that interview Mr Kurtovic intimated that he saw a need to speak with his lawyer whom he named. He was invited to make written submissions and was told that if he did so they would be considered by the Minister.

On 28 January 1988, yet a third Minister for Immigration considered whether Mr Kurtovic should be deported, and approved a departmental recommendation for the issue of a deportation order. An application was then made to this court for review of that decision under the provisions of the ADJR Act. That application was heard by Einfeld J who made, amongst others, the following orders:

(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.

The learned judge at first instance upheld a contention advanced on behalf of Mr Kurtovic that the Minister was estopped from issuing a second deportation order in the absence of some changed circumstances arising since the revocation of the first order. He also ruled that Mr Kurtovic had been denied natural justice in the course of events which led to the making of the decision of 28 January 1988, and that the decision then made was an improper exercise of the power because of a failure to take into account relevant considerations and a reliance on irrelevant considerations. His Honour rejected arguments by counsel for Mr Kurtovic that there was no power to make a second deportation in respect of the same Australian resident, and that an issue estoppel precluded the making of such an order.

I share the doubts expressed by Gummow J, in his judgment which I have had the advantage of reading in draft, as to whether, properly construed, the letter written on behalf of the Minister on 17 December 1985 amounts to a representation that a further order for the deportation of Mr Kurtovic would not be made in the absence of changed circumstances. However, it is clear that the power conferred on the Minister by s 12 of the Migration Act 1958 (Cth) is one for the exercise of a public discretion. If it is not exercisable once and for all in respect of the same non-citizen, the Minister cannot by contract or any form of estoppel preclude himself or any successor to his office from exercising it at all, or in a particular way, in the future: see eg New South Wales Trotting Club Ltd v Glebe Municipal Council (1937) 37 SR (NSW) 288 at 307 and 313 and Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 17 ALR 513 ; 139 CLR 54 at 74.

In Robertson v Minister of Pensions [1949] 1 KB 227 it was held by Denning J that an assurance by a public authority that a disability had been accepted as attributable to military service which had been acted on by a serviceman, estopped the relevant Minister from later asserting that the disability was not attributable to war service. However, his Lordship there seems to have regarded the acceptance of the disability as attributable to war service as something that under the applicable Royal Warrant was contemplated as occurring once and for all. At all events, although it was referred to in argument in Southend-on-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416 it was not regarded by Lord Parker CJ with whom Winn and Widgery JJ agreed, as diluting in any way the principle that a public authority cannot by contract fetter the exercise of its discretion and no estoppel can be raised to prevent or hinder the exercise of the discretion. It is also significant that the Southend-on-Sea Corp case was distinguished by Windeyer J in Brickworks Ltd v Warringah Corp (1963) 108 CLR 568 where his Honour observed at 577:

Does not this found an estoppel? It was argued that it could not do so because estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. There is no doubt about the principle; but I doubt its application to this case. The decision of the Court of Appeal in Southend-on-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416 was relied on. The facts of that case do bear a superficial resemblance to those of this case. But there is a distinction. There the corporation had, by its engineer, said that its permission for the use of land as a builder's yard was not in fact and law required. It was mistaken in this view; and it was held that what the engineer had said could not create an estoppel preventing the corporation from exercising its statutory discretion to forbid the land being used as a builder's yard. That is to say, the corporation had in effect said to the respondent company there, 'You do not need our permission; we have no discretion to prevent your action'. In the present case, on the other hand, the council said in effect, 'You do need our permission; we have a discretion which we have exercised in your favour'. It seems to me that, in the circumstances of this case, the council was estopped from denying that it had exercised its discretion in the manner it had said it had done. The case is not, as I see it, one in which a consent once given could be withdrawn. That could only, I think, be so if the consent were expressly given upon a condition that it might be withdrawn in specified events. And, moreover, it is not now said that consent was given and later withdrawn. The allegation now is that it was never given. The case of New South Wales Trotting Club v Council of the Municipality of Glebe (1937) 37 SR(NSW) 288 ; 54 WN 77 is entirely different from the present case.

The representation relied on as founding an estoppel in the present case, if having the effect contended for, clearly went to the exercise in the future of the Minister's discretion. Although the letter of 17 December 1985 contained the assertion that the Minister had revoked the subsisting deportation order, the representation which Mr Kurtovic has sought to import into it is that no second deportation order would be made in the absence of changed circumstances. That was not a representation of the kind identified in Robertson v Minister of Pensions and Brickworks Ltd v Warringah Corp as to a past or existing exercise once and for all of a power or discretion.

It will be apparent from what I have already said, that I do not regard the power conferred on the Minister by s 12 of the Migration Act 1958 as exercisable once and for all. I agree, with respect, with the conclusion reached by Gummow J for the reasons which he has indicated that it is a power exercisable from time to time whether or not there has been any change in the relevant facts.

I also agree with Gummow J that the doctrine of issue estoppel has no application to the present case. As I understand the argument advanced on behalf of Mr Kurtovic on this aspect, it is that the decision of the AAT of 6 September 1985 to recommend the revocation of the deportation order concluded the issue between Mr Kurtovic and the Minister of whether Mr Kurtovic should be deported in the light of the relevant facts as they were at that time. The power which the AAT exercised on Mr Kurtovic's application was that conferred by s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) setting aside the decision of 23 July 1984 and remitting the matter to the Minister for reconsideration in accordance with the recommendations of the AAT.

No particular state of fact or law has been identified as essential to the ultimate conclusion which the AAT reached. The existence of a previous adjudication as to a state of fact or law (the issue), is prerequisite for the application of issue estoppel. This was made clear in the following passage from the judgment of Dixon J in Blair v Curran (1939) CLR 464 at 531-2:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of Township of Hartington Middle Quarter (1855) 4 E & B 780 at 794 ; 119 ER 288 at 293, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

Because of the nature of the decision of the AAT affecting Mr Kurtovic, it is unnecessary in the present case to resolve whether, as was doubted in Commonwealth v Sciacca (1988) 78 ALR 279, a determination of the AAT can give rise to an issue estoppel.

On the question of whether the Minister's decision was an improper exercise of power as contemplated by s 5(1)(e) of the ADJR Act, Einfeld J observed:

Neither party addressed specific argument on this claim, which was not clearly particularised, possibly because it would have been merely repetitive of the other claims. There was no evidence or no new evidence, lay or expert, which made possible any conclusion that recidivism was likely, or that there were mental or other health reasons for deportation. It seems to me that these matters, amongst others, were relevant considerations to be considered if rational and not impulsive or politically motivated conclusions were to be drawn. They do not appear to have been considered, certainly not in relation to the position as it was in 1988 when the relevant decision was made. The inference I draw is that relevant considerations were omitted and that irrelevant considerations were relied on.

However, the minute of 14 January 1988 on which the Minister relied in deciding to issue the second order for the deportation of Mr Kurtovic listed as one of the factors against deportation identified by the Minister who issued the first deportation order:

(iii)

the applicant's prospects for rehabilitation appear to be reasonable and he now has no overt symptoms of any mental illness. I regarded the risk of recidivism as low.

Reference was also made in the same minute to a "comprehensive submission" which had been placed before the second Minister who revoked the first deportation order. That submission, according to the minute, canvassed, amongst other things:

(b)

the problems that led to the commission of the crime by Kurtovic (ie his belief that his late parents-in-law had sought to prevent him from seeing his daughter) would arise again if he was not deported and could lead to a similar tragedy in that there would be problems between Kurtovic and his former wife in relation to access to their daughter as the family would be defending strenuously any application for access on any basis through every possible avenue open to them in the Family Court.

Among the comments made by the minute writer on the representations contained in the comprehensive submission were:

(b)

although the Minister in ordering deportation assessed Kurtovic's rehabilitation prospects as being 'reasonable' and the risk of recidivism as 'low' the AAT found on the basis of its own first hand evaluation of the evidence that it could make an even more confident/favourable assessment, describing his rehabilitation prospects to be in fact 'very good' and the risk of recidivism as 'very low indeed' (see para 5(a)(iii)).

(d)

in view of the AAT's findings on the evidence that the risk of recidivism was so low, the concern about the possible affect on the families concerned if Kurtovic were permitted to remain in Australia appears to be misconceived.

As well, reference was made in the minute to advice received on 8 April 1987 from the Secretary of the New South Wales Parole Board which contained these passages:

The Parole Board is disturbed about the circumstances and facts of this case and is gravely concerned that Mr Kurtovic may commit further violent offences if released. The Board also noted the sentencing court's belief that the prisoner would be deported.

Mr Kurtovic will be released by remission and will have no supervision or counselling by the Probation and Parole Service when released. Further, the prison medical service advised that Mr Kurtovic will not undergo psychiatric examination or counselling.

In addition, the departmental minute contained this paragraph:

26. Further information was provided by the Parole Board on 8 May 1987, namely, parole officer's reports (two reports dated 24 September 1986 and 12 February 1987 -- papers commencing at annex 'L' refer) and a report from the prison medical services, dated 24 March 1987 -- annex 'M'. The Parole Board mentioned the report of 24 September 1986 was not provided to Kurtovic because of the Board's concern for the writer and, furthermore, 'It is stressed that in no circumstances should this report be made available to the prisoner'.

An extract from the parole officer's report of 12 February 1987 which was produced in the departmental minute concluded with these words:

It is reiterated that Mr Kurtovic still appears to be psychiatrically disturbed and is in need of treatment before any decision is made regarding release.

Two lengthy paragraphs of the minute were gathered under the heading "Extent and prospects of rehabilitation/risk of recidivism". The second of those paragraphs was summarised as follows in the antepenultimate paragraph of the minute:

(ii) Possibility of recidivism

The matters canvassed at para 37 above show a divergence of opinion on the question of recidivism and may be summarised as follows:

in 1983 the sentencing judge, having the benefit of four psychiatric reports, remarked that any assessment of Kurtovic re-offending should be made in the light of contemporary information;

in 1985 the AAT, with the benefit of a single psychiatric report, took the view that 'the risk of a repetition of violent conduct is very low indeed';

in January 1986 the Parole Board withheld parole because of the reservations about how Kurtovic would react to possible denial of access to his daughter. The Parole Board urged Kurtovic to participate in the works release program (which Kurtovic subsequently declined to enter);

in July 1986 the Court of Criminal Appeal, with the benefit of extensive reports, expressed disagreement with the AAT's judgment;

the Probation and Parole reports of 24 September 1986 and 12 February 1987 opined that Kurtovic was psychiatrically disturbed and needed treatment before release into the community (Kurtovic has refused psychiatric assessment or assistance).

Finally as one of the factors in favour of deportation there was listed:

(ii)

The risk of Kurtovic re-offending is difficult to assess and this is reflected in the contrasting views expressed by various experts and authorities. It is contended that the Australian community should not be expected to bear any level of risk.

In the light of those extensive references to the likelihood of recidivism and the mental health of Mr Kurtovic, I am unable, with respect, to draw the inference, which Einfeld J did, that the Minister, in deciding to issue the second deportation order, failed to take those presumptively relevant considerations into account. Nor have I been able to identify any irrelevant considerations (which his Honour did not specify) which the Minister took into account. Accordingly I do not regard the Minister's exercise of his power as improper on either of the grounds indicated in s 5(2)(a) or (b) of the ADJR Act.

I agree with Gummow J that the invitation extended to Mr Kurtovic on 22 October 1987 to make written submissions for consideration by the Minister when reviewing the question of deportation, precludes a conclusion that there was a denial of natural justice in the sense that no opportunity was afforded to Mr Kurtovic to be heard generally before the Minister made his decision. However, a denial of natural justice was also said to have occurred as a result of a particular, as well as a general, failure to afford an opportunity to be heard.

That subsidiary argument rested on the inclusion in the material submitted to the Minister of two parole officers' reports dated 24 September 1986 and 12 February 1987 and a report from the New South Wales prison medical service. When supplying a copy of the report of 24 September 1986 to the immigration authorities, the Parole Board indicated that a copy had not been provided to Mr Kurtovic because of the Board's concern for the writer of the report and for persons named in it who had provided information to the writer. The Board also advised the Department that "it is stressed that in no circumstances should this report be made available to the prisoner". It was open to the Board to act on that view, which was apparently shared by the relevant officers of the Department of Immigration and Ethnic Affairs, because of the provisions of what was then s 45 of the Probation and Parole Act 1983 (NSW); see now s 49 of the Sentencing Act 1989 (NSW).

However, the fact that considerations of safety of the reporting officers or their informants or of security may have justified the Parole Board in withholding the reports from the prisoner does not entail that the Minister could properly deny Mr Kurtovic an opportunity of responding to the matter contained in the reports. Such an opportunity could have been afforded, as counsel for the Minister accepted, by making the reports available upon appropriate undertakings as to confidentiality, to the legal adviser named by Mr Kurtovic at the interview on 22 October 1987 or to some other suitable person nominated by her.

Nevertheless, counsel for the Minister contended that the Minister was absolved from the need to make the reports available in some such way as I have just indicated, because Mr Kurtovic had declined the general invitation extended to him at the interview to make written submissions to the Minister. I reject that argument. There is nothing to suggest that Mr Kurtovic was even aware, when he declined the general invitation, that the Minister had before him reports from parole officers and the prison medical service. It is true that the Court of Criminal Appeal in its statement on 18 July 1986 made reference to representations from persons who considered themselves at risk if Mr Kurtovic were permitted to remain in Australia, and to "the other material" not specified, which had not been before the AAT. However, those references fall far short of providing a basis for imputing to Mr Kurtovic, in October 1987, an awareness of comments by parole or medical officers on which the Minister might rely in coming to a decision adverse to him. Accordingly, I consider that the decision of the Minister was vitiated like that in Kioa v West (1985) 159 CLR 550 ; 62 ALR 321 by the failure to bring to the notice of Mr Kurtovic potentially prejudical matter so as to give him an opportunity to answer it.

I have reached the conclusion which I have just indicated without any need to reinforce, by reference to the legitimate expectation said to have been created by the criminal deportation policy announced by the Minister on 4 May 1983 and the transitional policy announced on 28 March 1984, the obligation on the Minister to afford an opportunity to be heard on potentially prejudicial matter. However, I agree with Gummow J that for the reasons which he has explained the existence of a legitimate expectation does not create a substantive, as distinct from a procedural, protection for the person in whom the expectation has been created.

Therefore, on the sole ground of a denial of natural justice constituted by the failure to give Mr Kurtovic an opportunity to respond to the matters raised by the reports of the probation officers and that of the prison medical service, I would affirm the order of Einfeld J that the decision of the Minister be set aside. However, consistently with what I have indicated earlier in these reasons, I agree with Neaves J that the appeal should be allowed to the extent of setting aside para (2) of the order of Einfeld J which is reproduced, supra. A necessary consequence of allowing the appeal to that extent is that the injunction granted by Einfeld J restraining the Minister, until further order, from deporting the applicant from Australia, should be dissolved. I also agree with the order as to costs proposed by Neaves J.