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Signed ..cceccceesscecees ra (NOTE: To be despatched to Principal Registry, Sydney for on-forwarding to law publishers) CATCHWORDS Migration Act 1958 Section 12 - whether Minister can take into account conduct other than conviction and sentence -— denial of natural gustice by Minister - if applicable cured before execution of order of deportation - assuming denial no remedy on appeal to Federal Court. N.S.W. No. G19 of 1979 IVAN DE MIRKO CESKOVIC v. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Coram: Smithers J, St.John J, and Northrop J. Sydney 13 November, 1979 IN THE FEDERAL COURT OF AUSTRALIA } NEW SOUTH WALES DISTRICT REGISTRY ) No. G19 of 1979 GENERAL DIVISION IN THE MATTER OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (AS AMENDED) BETWEEN: IVAN DE MIRKO CESKOVIC Plaintiff AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Defendant ORDER JUDGES MAKING ORDER : Smithers J, St.John J, and Northrop J. DATE OF ORDER : 13 November, 1979 WHERE MADE : Sydney THE COURT ORDERS THAT : 1. That the appeal is dismissed. 2. The Plaintiff to pay the Defendant's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA } NEW SOUTH WALES DISTRICT REGISTRY No. G19 of 1979 GENERAL DIVISION IN THE MATTER OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (AS AMENDED) BETWEEN : IVAN DE MIRKO CESKOVIC Plaintiff AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Defendant 13 November, 1979 SMITHERS J, ST.JOHN J, AND NORTHROP J By an order dated 17 February, 1977 Ivan de Mirko Ceskovic, also known as John Ivan Ceskovic, was ordered to be deported by the Honourable The Minister for Immigration and Ethnic Affairs, such order being expressed to be in pursuance of the power conferred by Section 12 of the Migration Act, 1958. An application for an order of review was made to and heard by the Administrative Appeals Tribunal, the Deputy President -. /f2 of which was Mr Justice Davies. The learned Deputy President affirmed, on 27 March, 1979, the decision of the Minister that the applicant be deported. From that decision the plaintiff Ceskovic appeals to this Court. In his notice of appeal, as amended, the questions to be raised in this Court were stated as follows: 3. (a) (b) (c) (e) (£) The Tribunal misdirected itself on the significance of the Declaration of the U.N. High Commissioner for Refugees that the Plaintiff had the status as a political refugee. The decision was in breach of Article 33 of the convention relating to the status of refugees. That the decision was also in breach of Article 32 of that convention in that, the Plaintiff being at present in prison, he does not constitute a threat to public order or national security. The Tribunal failed to consider that the Minister's discretionary powers allowed by statute had been validly exercised. The Tribunal failed to satisfy itself that the Minister had in the exercise of his discretionary powers applied the correct criteria. The Tribunal applied the wrong criteria in making its decision. -35- (g) The Tribunal admitted evidence and gave such evidence undue weight. The obscurity and vagueness of these grounds was only slightly diminished by the submissions advanced in their support. Section 12 of the Migration Act, 1958 (The Act), so far as is relevant, is in the following terms: 12. Where an alien has been convicted in Australia of a crime of violence against the person. .. for which he has been sentenced to imprisonment for one year or longer, the Minister may, . . . order the deportation of that alien. Section 14 of the Act provides that if 1t appears to the Minister that the conduct of an alien has been such that he should not be allowed to remain in Australia, the Minister may, subject to the Section, order the deportation of that alien. It is clear from the matter before the Tribunal that conduct of the plaintiff other than that conduct which led to convictions for crimes of violence was considered in the exercise of the Minister's discretion as to whether or not to deport. The Minister's consideration of that conduct founded an argument, the main point of which was that because there was a power to deport based on conduct in Section 14, the Minister in exercising his power under Section 12 could not have regard to conduct other than the fact of being convicted of the requisite offence and receiving the requisite penalty. This argument was not assisted when the ground was changed by submitting that the Minister should take into . . 4 account only those aspects of the plaintiff's conduct which could be regarded as amelioration and not those aspects which could be regarded as aggravation. The submission based on Section 12 totally ignores the discretion vested in the Minister by the word "may". It was also argued that the Minister denied natural justice to the plaintiff in the exercise of his power. Whether or not the Minister is bound to obey the dictates of natural justice rules was not fully argued for the plaintiff and it would be unwise in the circumstances to rule upon it. Decision is unnecessary because in our view there is absolutely no foundation for a submission that natural justice was in fact denied. Secondly, on the assumption that it applies, had it been denied, the remedy is not in this Court on appeal from the Administrative Appeals Tribunal. Thirdly, if natural justice was denied by the Minister, it certainly was not on the review of the order by the learned Deputy President. Counsel for the Minister referred us to The Queen v. Commissioner of Police; ex parte Ivusic 20 F.L.R. 412, a decision of Connor J. in the Supreme Court of The Australian Capital Territory where His Honour considered but did not decide whether observance of the rules of natural justice was required of the Minister in the exercise of his powers under Section 13 of the Act. That Section gives the Minister a power to deport an immigrant, inter alia, who has been convicted of an offence punishable by death or by imprisonment for one year or longer being an offence committed within five years after entry by the immigrant into Australia. .. SS -5- Connor J, did decide that it would be sufficient if they were observed after the order for deportation was made and before it was executed. It was further submitted that in the consideration by the learned Deputy President of the plaintiff's propensity to violent behaviour and being present on occasions when violence has erupted, that there was "the glaring omission of him engaging in any activities of violence in prison". It is true that the learned Deputy President did not refer to the absence of violence during incarceration as a matter he took unto account, but that would obviously be explicable, even if it were relied upon in the plaintiff's favour, on the lack of opportunity for violence whilst in custody. The Minister stated that he took into account in exercising his powers to deport a United Nations Convention on the status of refugees, Article 32, Paragraph 2 of which provides: "The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority." On the plaintiff's behalf, he having been accepted as a refugee by the Minister, it was submitted that "due process" - . /6 had been denied and certain definitions formulated in the United States of America as to the meaning of those words were referred to. We accept the submission of counsel for the Minister that the definition of "due process" would appear to be in accordance with the rest of the paragraph quoted and in those circumstances "due process" was accorded the plaintiff. It is apparent from the evidence before the Tribunal that the plaintiff is amply qualified for deportation because of his convictions, the most serious of which was malicious shooting with intent to do grievous bodily harm for which he was convicted in the District Court, Sydney on 18 February, 1975 and for which a sentence of six years penal servitude was imposed. In addition he has convictions for other crimes of violence and, as the learned Deputy President put it, the plaintiff "demonstrated a propensity to become involved in disputes which led to violence and in which persons other than the applicant (plaintiff) were injured". On two occasions the plaintiff shot human beings, one fatally. We have carefully considered the reasons of the learned Deputy President for affirming the Minister's decision independently of the plaintiff's submissions as well as with them in mind. It is clear that all relevant factors were taken into account and carefully considered. The appeal is dismissed with costs. I certify that tuateand the Sax Co) preceding pages are a true copy of the Reasons for Judgment herein of AS Honours Mr. Justice 0 6. Suceanrei4, bee Gusner. St. Tein, Ma Dusted daaly Associate A. (ena fitr, Dated : 13.11. 1@ ERRATUM IVAN DE MIRKO CESKOVIC v. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS No. G19 of 1979 CORAM : SMITHERS, ST.JOHN AND NORTHROP JJ. 'DATE OF ORDER : 13 NOVEMBER, 1979 i MADE ; SYDNEY Please substitute the attached page for the final page in the reasons for judgment. AY, Mean tien . i A. HUNTER ASSOCIATE TO ST.JOHN J. I certify that ised the "4A &) preceding rages are a true copy of the Reasons for Judgement herein of his Honour. Vr. Justice Suuhers, bu duende Sr, aaa , hae Uretiice Nev Toeey> Associate te. SCE, K ¢ Dated (3.11 249 CASS (rn tLD ,