Pagliara v Attorney-General

JurisdictionNew Zealand
CourtSupreme Court
Judgment Date30 May 1973
New Zealand, Supreme Court, Christchurch.

(Quilliam J.)

Pagliara
and
Attorney-General

The individual in international law Aliens Expulsion of Procedure of expulsion Whether alien should have right to be heard before deportation order made The law of New Zealand

The individual in international law Aliens Expulsion of Right of expulsion Registered alien convicted on drug charge Order of deportation by Minister Whether rules of natural justice require alien to be given opportunity to make submissions Distinction between judicial and administrative functions Minister's discretion under Aliens Act 1948 Audi alteram partem principle Whether Minister required to hold inquiry or investigate accuracy of facts The law of New Zealand

Summary: The facts:The plaintiff, an Italian national, had come to New Zealand in 1963 and was a registered alien under the Aliens Act 1948. In October 1971 he was convicted in the Supreme Court at Christchurch on a charge of selling drugs. The judge was asked to recommend deportation under Section 14 of the Aliens Act but refused. The question of deportation was not raised on appeal in the Court of Appeal, which increased the sentence of imprisonment. The Secretary of Justice then wrote to the Secretary of Labour recommending deportation of the plaintiff. The letter, together with a police report on the plaintiff, was passed to the Secretary of Internal Affairs who approved the recommendation in December 1972 and obtained the approval of the Governor-General in Council in January 1973. The plaintiff first learned of the matter through a newspaper report in January 1973. After a meeting with the plaintiff's solicitor the Minister signed the formal order of deportation in February 1973. The plaintiff filed an application for an order that the decision of the Minister be set aside or that he should reconsider the matter. He contended that there had been a denial of natural justice insofar as the Minister had made his decision without giving him an opportunity to make any submissions.

Held:The relief sought by the plaintiff was refused.

(1) The nature of the tribunal, whether judicial, quasi-judicial or administrative, would not preclude the rules of natural justice being applied.

(2) The purpose of Section 14 of the Aliens Act was to enable the Minister to have removed from the country someone who had no right in any event to remain. To fetter the Minister's discretion by applying the principle of audi alteram partem was contrary to the nature of that Act.

(3) The use of the expression if the Minister is satisfied in Section 14 of the Act did not indicate that the Minister was under an obligation to hold any inquiry or to investigate the accuracy of statements of facts presented to him.

(4) In any event, the facts had not disclosed any evidence of a breach of the principles of natural justice.

The following is the text of the judgment of the Court:

QUILLIAM J. The applicant came to New Zealand from Italy with his parents in 1963 and became a registered alien under the Aliens Act 1948. He returned to Italy in 1965 and then came to New Zealand again in 1967. He has remained here ever since. He is now 26 years of age and has been in regular employment in New Zealand as a hairdresser. On 6 October 1971 he was convicted in the Supreme Court at Christ-church on a charge of selling two tablets of LSD to an undercover policeman. He was sentenced to nine months' imprisonment and an application for a recommendation by the Court that he should be deported was declined. The Crown appealed against the sentence and the Court of Appeal increased the term of imprisonment to two years. At the hearing in the Court of Appeal no reference was made to the subject of deportation. On 17 December 1971 the Secretary for Justice wrote to the Secretary of Labour referring to the increase in the sentence and stating that, with normal remission, the applicant would be due for release on about 11 April 1973, and recommending deportation. This was passed on to the Secretary of Internal Affaire who also received a police report on the applicant. The question of deportation was then investigated by the departmental officers and, on 12 December 1972, the matter was placed before the Minister with a recommendation for deportation. The Minister had before him a comprehensive report from the Secretary of Internal Affairs and two reports from the police as well as the department's full file on the matter. The Minister's attention was drawn to the fact that the applicant had aa earlier conviction in 1970 for possession of valium (although it was incorrectly stated that this charge had been brought under the Narcotics Act 1965 when it had in fact been brought under the Poisons Act 1960), and to certain other aspects of his previous character and conduct. On 19 December 1972 the Minister approved the recommendation and, oa 10 January 1973, recommended to Cabinet that the applicant should be deported. Cabinet, on 15 January, authorised the submission of the matter to the Executive Council and on the same day the Governor-General in Council made a formal order under s 14(1) (b) of the Aliens Act 1948 requiring the applicant to leave New Zealand. The first the applicant knew of the matter was when, on 16 January while in prison, he read in a newspaper of the decision to deport him. His solicitor then requested a meeting with the Minister and an opportunity of discussing this matter with you before further action is taken. The Minister agreed to this request and the meeting took place on 9 February. There is no evidence of what took place at the meeting but it is reasonable to assume that the applicant's solicitor placed before the Minister whatever matters he thought relevant with a view to persuading the Minister to change the decision he had made. On 13 February the Minister wrote to the applicant's solicitor saying he was not prepared to change his decision and giving in outline his reasons. On 14 February the formal order of deportation was signed by the Minister and was served on the applicant on 16 February. On the same day the Minister signed the further formal order (required under s 15 of the Act) directing the applicant's removal from New Zealand on or about 26 February, and on 19 February the Minister of Finance approved the necessary expenditure for an air fare for the applicant from Christchurh to Rome. A subsequent order under s 15, replacing that of the 16 February, directed the applicant's removal from New Zealand on an aircraft nominated by the Minister and further directed his detention in custody in the meantime. On 28 February the present application was filed.

The applicant seeks an order declaring that the decision of the Minister ordering deportation of the applicant was unauthorised or otherwise invalid and for a further order setting aside the decision, or in the alternative, for an order that the Minister should reconsider the matter. I am informed that this is, or may be, the first application made under the Judicature Amendment Act 1972 and I was asked to give some indication of the procedure which should be followed in the setting out of the grounds of such an application. The application in the present case is expressed to be made upon the grounds that the decision made by the Minister in the exercise of his statutory power of decision was unauthorised or otherwise invalid and upon the further grounds appearing by the affidavit of the applicant sworn and filed in support hereof. Section 9(1) of the Judicature Amendment Act 1972 is as follows:

In an application for review it is sufficient if the applicant sets out in the motion the grounds on which he is seeking relief, and the nature of the relief sought, without specifying the proceedings referred to in subsection (1) of section 4 of this Act in which the claim would have been made before the commencement of this Part of this Act.

I think, as a matter of practice, it is an insufficient compliance with that provision to state the grounds as they were stated here. It was necessary to examine the applicant's affidavit to try and elicit...

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1 cases
  • Hernandez (Reuben) v Attorney General
    • Jamaica
    • Supreme Court
    • 18 Septiembre 2006
    ...In Chandra v Minister of Immigration (Supra) , the Court relied on and quoted with approval, dicta by Woodehouse J. in the case of Pagliara v Attorney General [1974] 1 NZLR 476, which was also concerned with the reviewability of the Minister's decision on application by a student to extend ......