Andary v MIMA [2004] HCATrans 242 (23 June 2004)

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Andary v MIMA [2004] HCATrans 242 (23 June 2004)

Last Updated: 2 July 2004

[2004] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B72 of 2003

B e t w e e n -

GEORGE ANTHONY ANDARY

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 11.32 AM

Copyright in the High Court of Australia

MR S.J. STANTON: May it please the Court, I appear for the applicant with my learned friend, MR P.A.J. BUBENDORFER. (instructed by Peter Bubendorfer)

MR P.G. BICKFORD: Your Honours, I appear for the respondent. (instructed by Blake Dawson Waldron)

GUMMOW J: Thank you.

MR STANTON: Your Honours, this application has a narrow point but, nevertheless, a substantive one. The applicant, your Honour, arrived – no doubt your Honours have read the Full Court judgment?

GUMMOW J: Yes, we have.

MR STANTON: Indeed, your Honours, and if I could just take you to the point if I may. It really concerns, your Honours, or effectively concerns I should say, the application of the Wednesbury principle in respect of proportionality and the failure by the Full Court to adopt and to implement that decision. The circumstances that we say the Wednesbury principle came about, your Honour, in terms of its application emanate, we would submit, your Honour, from pages 6 and 7 of the Full Court judgment. If I could just take your Honours to that. The Full Court in the reasons - - -

KIRBY J: Just pausing there. The Wednesbury principle is a principle devised by judges to deal with extreme cases - - -

MR STANTON: Indeed, your Honour.

KIRBY J: It cannot contradict the language of a statute. It cannot contradict the purpose of Parliament in enacting very large powers to ministers to expel from this country aliens. You raise an objection that your client was not an alien, but he is, I think, in the same situation, is he not, except that he was never a British subject, as Mr Shaw, who I think came here at the age of two. I think your client came at the age of three or four and, therefore, the Court has already passed on that matter and said that such people in the case of people born in the United Kingdom have no basis for contesting that they are aliens, a fortiori one would think, a person who arrived from Lebanon who was not British subject, never had been, has no basis on Shaw’s Case to challenge that conclusion. Is that not correct?

MR STANTON: That point is correct, your Honour.

KIRBY J: Well now, if that is so, then the Act bites and applies to your client and it does appear to be the purpose of the Federal Parliament to provide that people in the position of your client, no matter how long they have been here, if they are not citizens and are aliens can be removed if the requirements of the Migration Act are satisfied and as I understand it you accept that they were satisfied in this case?

MR STANTON: Your Honour, the acceptance of it, as was accepted in the concession made in the first hearing and on appeal was, nevertheless, a concession made, your Honour, but not one that would be fatal, in my submission, to this extent - - -

GUMMOW J: There are, I think, now sufficient decisions to indicate Wednesbury unreasonableness, to use that term, can give rise to jurisdictional error for the purposes of section 75(v) of the Constitution, and, therefore, for the construction of section 474, but your burden is to show that that being the accepted law, either you want to reformulate it in some way; and two, whether in any event, even if reformulated, this would be a case in which you have sufficient prospects of success of winning even on a reformulated, widened basis of Wednesbury unreasonableness.

MR STANTON: Indeed, your Honour. Your Honour, if we look at Eshetu’s Case in 197 CLR - - -

GUMMOW J: Well, as I have just said to you, we do not need to look at that. The question is how are you going to win?

MR STANTON: Well, your Honour, we would say that we would win because the power here, that is to say the power under section 501 is one which is far more amenable to the Wednesbury principle as opposed to 474 which is the Refugee Review Tribunal. Here, your Honour, it is not a question that the Tribunal had in Eshetu - - -

GUMMOW J: Section 474 applies generally, does it not?

MR STANTON: Well, your Honour, I beg to differ, if I may please, because in Eshetu - I think it is your Honours – certainly at 650 and 651 of your Honours’ judgment, your Honour looked at the position that a decision maker - - -

GUMMOW J: That is pre-474.

MR STANTON: Yes, that is 474, your Honour, but your Honour then went further - - -

GUMMOW J: It is pre-474.

MR STANTON: Sorry, pre-474, your Honour, but your Honour then went further, in Eshetu and made this very relevant observation, at 651, paragraph 131:

A determination that the decision-maker is not “satisfied” that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution.

Now, your Honour, what we say is that this is the very power or this is the very scenario that your Honour was referring to under 501. Your Honour at - - -

HAYNE J: Let us for the moment assume that to be so. Can we get down and dirty into the facts.

MR STANTON: Yes.

HAYNE J: Why, on the facts, was this decision not one within the available range of decisions open to the Minister?

MR STANTON: Because, your Honour, when you look at the reasons for the Minister, and they are set out in the analysis of them by the Full Court at pages 6 and 7 of the Full Court’s judgment, they are hardly reasons at all. All they are, your Honour, is a litany of concern without any reason being ascribed in any way, shape or form, on a basis that one could say that reasons were given for the concern expressed.

KIRBY J: Well, as the Full Court said, there would be quite a few Australians who would think that sending a person who has lived here since the age of four back to a country where he has no family, no connections, no support is something that ought not to happen, but that is not the view of the Parliament. It has provided as it has and your client has, it must be said, a rather discouraging criminal record, and that being the case, why, even if you accept say the Irish Supreme Court’s test of Wednesbury proportionality, how could it really be said in this case that it was disproportional for the Minister to send – I am sympathetic to the Irish Court and I am sympathetic to what Lord Cooke of Thorndon has said, but looking at it from the point of view of testing those propositions in the Court you would want to have a case where there was a real point of the margin between so unreasonable to no reasonable person could reasonably ever reasonably reach it, which Lord Cooke says is circular, and a most disproportional application of the power. Now, this does not seem to be such a case.

MR STANTON: Well, your Honour, we would submit it is for these reasons, but firstly, your Honour, the discouraging criminal record is hardly a matter of such gravity in terms of (a) the record and (b) the offences, although it fits the statutory - - -

GUMMOW J: Really?

MR STANTON: Well, your Honour, can I say this? The supply of drugs, your Honour, not by reason of the numeracy or the frequency of the supply charges that occur in all the States in this country, but the circumstances of - - -

HAYNE J: How much actual gaol time has your client done?

MR STANTON: All up, your Honour?

HAYNE J: Yes.

MR STANTON: Certainly in excess of two years, your Honour.

HAYNE J: Yes.

MR STANTON: Yes.

HAYNE J: And that is not serious criminal offending to warrant punishment of aggregating to over two years prison, actual time served?

MR STANTON: Well, your Honour, can I - - -

HAYNE J: A hard barrow to push, I think, Mr Stanton.

MR STANTON: Well, your Honour, can I meet your Honour’s proposition this way. It may well be of a grave nature in terms of the repetition and the time served, but does it justify exile from his children and his mother and father and his siblings. I mean, your Honour, one must understand that whilst Parliament dictates and deigns, nevertheless there must be proportionality and that is why Wednesbury has evolved. It just cannot be left up in the domain, your Honour, that one would say, yes, he has done the time, he has fitted the category, the offences are there so I am going to send him into exile. I mean, your Honour, that hardly is a proper and responsible reflex.

KIRBY J: Yes, but Parliament has delegated that power to a Minister of the Crown. This is a very high office-holder, Constitutional office-holder and it has done so deliberately, recognising that the circumstances of every case are going to be different and the Minister has reached that view. Now, for this Court to set it aside you would have to have a pretty strong case if you are entitled to set it aside and that is why courts have struggled for these words, but even if you take proportionality, do you put your case this way, that although two years in aggregate is serious enough, they are relatively small. They do not compare to Mr Shaw who, I think, had a very considerable criminal record and they are mostly bound up with a drug dependence problem of his own and then you put it in with his de facto relationship, his children, the dependence of his children on him and you say, well, it is just a disproportionate exercise of the power.

MR STANTON: And we so submit, your Honour. We say, your Honour, that within the matrix of the facts, acts and circumstances, that the case comes before the Minister and ultimately before this Court, that the Full Court failed to, of necessity, give a view or come to a view that would accord with what was proportionate as opposed to accepting carte blanche what the Minister did, despite expressing concern as to the disquiet that they came to, themselves, to then go the next step which they were due to go to, we would submit.

KIRBY J: But why would a court not say, just applying say Lord Cooke’s test, was it a decision which a reasonable authority could reach. Why would a court say, “Well, I would not reach that conclusion because drug dependence is a matter of widespread phenomenon in our community and people get caught up in these things”, but this is a Minister and the Minister is elected, the Minister is accountable, the Minister reflects the views of a lot of people in the Australian community, the Minister takes the brunt if the Minister gets it wrong in our democratic theory. Why would not a court say, “Well, I would not have done it, but it is not one that I can affirmatively say is one that no reasonable authority could reach or that is disproportionate to the power that has been conferred”?

MR STANTON: Of course, your Honour, that is available and it is a proposition that in meeting it, and with due deference to the Court, to give it an argument or to reply to it in a sensible fashion, we say, your Honour, that whilst that can be put and a Minister, as your Honour has ably reminded me, elected official as he is, or as the Minister was, and certainly acting constitutionally, perforce of the office, nevertheless, your Honour, there is on such exercise the necessity that whatever the power be, it be exercised in a proportionate manner to the subject and the nature, or the person who is being affected by the repository of that power.

Now we say, your Honour, that if the Full Court was minded to see that there was, certainly on its face, a disproportionate exercise then the need for intervention or the basis for intervention has not been properly explained by the Full Court in terms of failing to exercise or implement what were their concerns. Your Honour, if it was such an open-and-shut case where there were circumstances, there was a concern and a person acting reasonably would do as the Minister did, then the Full Court would have left it at that. The Full Court did not do that, your Honour.

KIRBY J: Well, the Full Court expressed its view. It said that there would be many people who would not take this view, but that is not the test, because Parliament has not given the power to the Full Court of the Federal Court of Australia. It has given the power to a Minister of the Crown and that Minister is accountable to the Australian people through election processes and these matters are not without agitation in the Australian community.

MR STANTON: Indeed, your Honour.

KIRBY J: We have a democracy here.

MR STANTON: Yes, your Honour, there is no doubt about that. Your Honour, the gist of our submission really is that in the circumstances, the disproportionate - - -

KIRBY J: Have you said everything that stands in your side of the ledger on the disproportion?

MR STANTON: I have, your Honour, yes.

KIRBY J: On the one side of the ledger is the pretty discouraging repeat offences of your client and the two years time in prison. On the other side is his long period of life in Australia, the fact that he has been here since the age of four, that he has no family in the Lebanon, that he has children and a de facto wife here and that they want him to stay here and he has no connections with Lebanon.

MR STANTON: Indeed, your Honour.

KIRBY J: Is there anything else in the disproportion that you are urging on us?

MR STANTON: Your Honour, I could not urge anything further and, in my submission, that that of itself, your Honour, is a circumstance or a series of circumstances that of itself must carry weight when one considers that what, in effect, is being done is to send this applicant into exile. Now that just cannot be a proper response where, in the circumstances, the ledger is in his favour and not outside his favour, your Honour. I mean a Minister acting rationally and reasonably, we would submit, would not come to that view that one would of necessity expel him where the ledger is far more in his favour than against him. They are our submissions, your Honour.

Now that accords with what we say was what Mr Justice Deane meant in Bond’s Case and why, your Honour, that the concept of Wednesbury, as Mr Justice Deane referred to it in Bond, would equally apply to the exercise of power under section 501 of the Migration Act and the Act in question, your Honour.

GUMMOW J: Thank you.

MR STANTON: Thank you, your Honour.

GUMMOW J: Yes, Mr Bickford.

MR BICKFORD: Your Honours, there are two proposed grounds of appeal, only one of which seems to be troubling your Honours at the moment. The other ground, that the Minister had no power to make the order is not a ground that is being - - -

GUMMOW J: Well, that is gone.

MR BICKFORD: That is gone. Shaw has put the end to that. So the - - -

KIRBY J: The issue is whether, given that the authorities in other countries which are in the common law world have addressed this issue of Wednesbury, which as Lord Cooke of Thorndon has said is a tautology in a sense, the way you say it is expressed, searching for a better formulation, reached for proportionality. Now, at one stage, this Court is going to have to come to grips with that, I think. The question is, is this an arguable case where that would be posited to the Court given the balance that has been identified by Mr Stanton?

MR BICKFORD: Yes, your Honour. In my submission, this is not an appropriate vehicle, as we have submitted. There are at least two reasons for that. One is that the decision that the Minister made was reasonably open to him, albeit, in the view of other impartial observers a harsh decision. The other reason is that the analysis of the relevant legal principles has not been undertaken by - - -

KIRBY J: It is a bit like – what was that other case, the case of the German who was engaged – who.....up later and admitted to murder and he had been here since he was brought as a very small child - Palme.

MR BICKFORD: Yes, there are a few decisions, I think, going way back, your Honour. There is Pochi who was a gentleman from Griffith who had been here for a very, very long time - - -

KIRBY J: I think it was Taylor, but Taylor won temporarily.

MR BICKFORD: I think I was thinking of Pochi being involved in the drugs trade but the offences of which he was convicted - - -

KIRBY J: Palme had a more serious offence of murder, but he only had one offence, whereas in this case it is a rather typical repeat offence of – but rather minor offences, mostly of possession.

MR BICKFORD: Building up to supplying a dangerous drug which resulted in a term of imprisonment, well actually what resulted in a term of imprisonment was breaching previous terms of probation.

KIRBY J: It is not a lot of imprisonment, two years imprisonment?

MR BICKFORD: He may have done far more time than that over the term of his life, your Honour. I think we are only talking about two years that led to this particular decision.

GUMMOW J: That is right. He has been in prison for longer than two years.

MR BICKFORD: Yes, in fact we have a copy of his criminal record here somewhere, I think.

KIRBY J: But he is a person - - -

GUMMOW J: What does it add up to?

MR BICKFORD: I will ask my solicitor to look at that, your Honour.

KIRBY J: Still adding up, but whilst he is doing that, the fact is he has been here since the age of four and he has no family there and he has only got family here. One can read between the lines that the Full Court of the Federal Court was concerned about the matter.

MR BICKFORD: Certainly, your Honours, but as her Honour Justice Kiefel observed in her reasons, we are dealing with the unreasonableness argument that:

It may be expected that strong views might be held about whether the circumstances pertaining to the applicant require the cancellation of his visa and deportation.

This is paragraph 35.

A decision to do so may be seen as very harsh, given that he has lived all his life in Australia, has a young family here and no family in Lebanon. To say that the decision is unreasonable on these accounts however, would be to say that the reasoning is wrong. It was pointed out in Minister for Immigration and Multicultural Affairs v Eshetu . . . the word “unreasonable” is often used to declare, emphatically, that the decision was wrong. It does not follow that there will be a legal consequence.

And this is such a case, as her Honour observed. It is a decision that was open to the Minister, and whether it is a harsh decision or not is really neither here nor there, if it is a decision that is open to the Minister. This is even a case where reasons were requested and given, this is apart from the adoption of the Departmental submission, reasons were actually asked for and given and they are quoted in the Full Court’s decision and, as the Full Court said, we might well not have shared the Minister’s view but that is not the test, and you are really going to trample into merits review very easily if you adopt an argument that - - -

KIRBY J: Well, just help me with this. What would be a case where the issue of serious disproportionality would arise that was not like this case? After all, we do have a number of factors and Mr Stanton says this is exile.

MR BICKFORD: That is if you were to adopt proportionality even arguably, your Honour, because it has not been adopted in England in relation to domestic matters, only in relation to Common Market matters, matters arising out of the European Community - - -

KIRBY J: Well, they are probably on a staging post.

GUMMOW J: Well, there is a case called Coughlan in the English Court of Appeal which produced the result that the applicant was entitled to stay in a particular nursing home for the rest of her life.

MR BICKFORD: Yes, your Honour. I am not familiar with that decision, but there is a very recent - - -

GUMMOW J: It was about three years ago.

MR BICKFORD: There is a recent decision I did locate - - -

GUMMOW J: But you are correct in the sense that the notion of proportionality comes out of Europe, like the notion of margin of appreciation, which is a polite way of saying people in other countries do things in peculiar ways. We have to allow them a margin of appreciation to measure up to the way we do things - - -

MR BICKFORD: Yes.

KIRBY J: Sometimes they may even do them better.

GUMMOW J: Exactly.

MR BICKFORD: That is arguably so, your Honour. Your Honour, the decision I was thinking of is R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] EWCA Civ 473; [2003] QB 1397, a decision of the Court of Appeal. Their Honours were urged to find that the proportionality principle - - -

KIRBY J: Has the House of Lords had a go at Wednesbury unreasonableness, this tautologous formula that everybody incants but does not really - - -

MR BICKFORD: Well, what Lord Cooke observed in the decision to which my learned friends have addressed, your Honour, has been seen to become accepted, in other words, that the Wednesbury test, as stated by Lord Greene, is not particularly helpful and that perhaps it would be less tautologous and more useful if it was stated in the way in which Lord Cooke put it. But that is a different matter to adopting the proportionality test, which has favour in Europe.

KIRBY J: Well, that might be so but, therefore, the issue is really whether this is a good vehicle to – in a case where, as Mr Stanton says, it amounts to exile. Now, the ancient Greeks took exile as the most serious of the punishments that they imposed.

MR BICKFORD: Certainly, your Honour.

KIRBY J: So it is a very serious consequence, and serious not only for the applicant but for his de facto wife who, I understand, is an Aboriginal Australian and for his children who are Australian citizens.

MR BICKFORD: Yes.

KIRBY J: It is a case of exile in response to, effectively in recent times, two years imprisonment.

MR BICKFORD: All matters the Minister took into account, your Honour.

KIRBY J: Yes, but that does not mean it is not subject to judicial review.

MR BICKFORD: Well, only if it is a decision - - -

KIRBY J: The only matter that concerns – I believe this Court will in due course look at Wednesbury because of its inherent defects - - -

MR BICKFORD: Yes.

KIRBY J: Now, the question is whether in a case of exile, with these indicia on the other side of the picture, this is a good vehicle to do that. Now, why is it not?

MR BICKFORD: Well, your Honour, in my submission it is not because the matters that the Minister took into account, that is the seriousness of the conduct engaged in and the repetitive nature of it and the fact that the applicant – that in the Minister’s view the Australian community would expect him to make the decision which he made, in his view outweighed the other matters, including the best interests of the children and so forth. That was a matter that was open to him. That is a decision that was open to him. Others might not have made it - - -

KIRBY J: Well, I think we have the problem – subject to the addition of all the imprisonment. Can you tell us what that is now?

MR BICKFORD: My solicitor has worked out he has actually served a total of four years, but he has been sentenced to seven years 10 months all up, but three of the seven years were wholly suspended, so he has actually - - -

GUMMOW J: How old is he now?

KIRBY J: He is 36 or 38.

MR BICKFORD: He is 36, I think, your Honour.

GUMMOW J: It is a fair proportion of his adult life.

MR BICKFORD: He is 40, your Honour.

MR STANTON: Your Honours, he was born 10 February 1963, so he is 41, your Honour.

KIRBY J: Forty one. Well, it is a proportion of his life, but his life has been lived in Australia. From the age of four he has been one of us all that time, except that he did not become a citizen because his parents did not - - -

MR BICKFORD: Yes, well, your Honour I think in the first – Mr Andary has been before the Federal Court before, before Justice Dowsett and successful because I think the Minister had applied direction 17, which the Federal Court took a certain view of. But in any event, as his Honour said, “He may be a black cat, but isn’t he our black cat?” That really amounts to a merits review, as his Honour recognised. It is a matter for the Minister – Parliament has proposed a power in the Minister. It said that if you have been sentenced to terms of imprisonment totalling in excess of 12 months the Minister can consider deporting you.

GUMMOW J: Anyway, your opponent’s invocation of exile is misplaced, is it not? Citizens were exiled.

MR BICKFORD: Yes.

GUMMOW J: Alcibiades was a citizen of Athens.

MR BICKFORD: Yes.

KIRBY J: Well, he was not a citizen but he has been here an awful long time.

MR BICKFORD: Yes.

KIRBY J: Thirty six years.

MR BICKFORD: But he has never obtained citizenship, and that is explained I think in the record. He inadvertently applied for citizenship at the time of applying for passport, and it was rejected because of his criminal record at that point in time.

KIRBY J: Maybe there were not enough advertisements in the newspapers urging people to become citizens.

MR BICKFORD: Certainly, of course, that should be adopted, your Honour, because if you remain as a permanent resident only you leave yourself exposed to this possible consequence if you - - -

KIRBY J: It certainly should. Yes, indeed. Anyway, thank you for your assistance.

MR BICKFORD: Yes, thank you, your Honour.

MR STANTON: Your Honour, shortly in reply, the very fact that the Minister has the power under section 501 to consider whether a criminal record is a matter that can be taken into account means that itself,
your Honour. These cases will arise from time to time, and Wednesbury must, as a matter, be taken into account in terms of how the Minister should act. This is an appropriate vehicle.

This is an appropriate vehicle for these three reasons: (1) Here is a man who has spent most of his life in this country, has a wife, dependants and has been a member of society, whilst not an erstwhile member, nevertheless a member; (2) That to be sent out of this country, whether it is an Alcibiades exile or a George Andary exile, it is nevertheless an exile. If a person who has been in a country and is then sent out of it to a land where he knows no language and has no familiarity with its surrounds, that of itself is tantamount in one way to harsh and cruel and unusual punishment; (3) Your Honour, the Court of itself – I think Justice Hayne in Eshetu said that he knows of – well, he was not prepared to decide the Wednesbury point, but nevertheless the Wednesbury point is right for consideration and it is a vehicle that presents itself to the Court now and it should be accepted as the appropriate vehicle for its determination. It is vital, your Honour, as I say because the Minister has the power with respect to people who offend and Wednesbury, in terms of its application to such a power, a significant power, should be determined. May it please your Honours.

GUMMOW J: Thank you.

Upon the assumption, without deciding, that the applicable principle is a reformulated Wednesbury criterion adopting a notion of disproportionality, nevertheless the circumstances of this case are such that there are insufficient prospects of success to warrant a grant of special leave. I would refuse special leave with costs.

KIRBY J: I would grant special leave.

HAYNE J: I agree with Justice Gummow.

GUMMOW J: Accordingly, special leave is refused with costs. We will adjourn to reconstitute.

AT 11.59 AM THE MATTER WAS CONCLUDED