A v Minister for Immigration and Multicultural Affairs

[1998] FCA 1018

FEDERAL COURT OF AUSTRALIA

MIGRATION – criminal deportation – application for review of decision of Administrative Appeals Tribunal to deport the applicant – use of the term “no evidence” by the Tribunal – whether error of law in the Tribunal’s assessment of the risk of recidivism – application dismissed.

Migration Act 1958 s 200

Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472
Luu v Renevier (1989) 91 ALR 39
Barbaro v Minister for Immigration & Ethnic Affairs (1982) 44 ALR 690

“A” v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 456 of 1998

MOORE J

SYDNEY
17 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 456  of   1998

BETWEEN:	"A" APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		MOORE J
DATE OF ORDER:		17 AUGUST 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed

1. The applicant pay the respondent’s costs

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 456 of 1998

BETWEEN:	"A" APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	17 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Delivered ex tempore)

This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 seeking judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision to deport the applicant.

The decision of the Tribunal arose against the following background. The applicant arrived in Australia on 18 October 1990. He was a Vietnamese national then aged 21 years. He entered Australia possessing a refugee visa. In June 1994 he briefly returned to Vietnam and sought to re-enter Australia on 18 August 1994. He was apprehended carrying approximately 385 grams of heroin concealed in his shoes. The applicant was charged under s 223B of the Customs Act 1901 and convicted on 29 November 1994 in the District Court of New South Wales. He was sentenced to a period of imprisonment of six years with a non parole period of three and a half years. On 8 April 1997 a decision was made to deport the applicant under s 200 of the Migration Act 1958 which, together with s 201, provides:

200The Minister may order the deportation of a non-citizen to whom this Division applies.

201Where:

(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)when the offence was committed the person was a non-citizen who:

(i)had been in Australia as a permanent resident:

(A)for a period of less than 10 years; or

(B)for periods that, when added together, total less than 10 years;

or

(i)…

and

(a)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;

section 200 applies to the person.

It was the decision to deport that led to the proceedings in the Tribunal.  On 17 April 1998 the Tribunal affirmed the decision of the delegate to deport the applicant.

An appeal to this Court under s 44 is an appeal on a question of law only. Four grounds of appeal were advanced by counsel for the applicant. The first ground related to the approach of the Tribunal to the circumstances the applicant might confront if deported to Vietnam. The Tribunal said the following in para 40 of its reasons:

In the present case no evidence was presented to the Tribunal to support the submission that the applicant was at any risk of being tortured or subjected to an unfair trial or capital punishment upon his return to Vietnam.  The evidence which was tendered did refer to isolated examples of abuses of the judicial process in Vietnam, but the Tribunal is not satisfied by this evidence alone that the applicant would be subjected to such abuses.  In reaching this conclusion the Tribunal was greatly assisted by the testimony provided by Mr Peter Job, director of the unauthorised arrivals section of DIMA.

(Emphasis added)

The evidence of Mr Job was to the effect that the Vietnamese authorities would be provided with limited information concerning the events that led to the conviction of the applicant and the nature of that conviction.

Counsel for the applicant focused on the use of the expression "no evidence" by the Tribunal.  He then referred to material contained in the papers before the Tribunal which might be thought to indicate that either the applicant or someone in the circumstances of the applicant would be exposed to a risk of being tortured, be exposed to a process involving unfair trial or be exposed to capital punishment.  It was submitted that it was not open to the Tribunal to conclude there was no evidence concerning the risk the applicant might be exposed to were he to return to Vietnam.

However the use of the words "no evidence" by the Tribunal should not be approached in any narrow or technical way.  Indeed, I would respectfully adopt the observations of Gummow J in Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472 where his Honour dealt with a similar submission. His Honour said (at 479):

I would not treat the references in the paragraphs I have just set out from the s 13 statement as indicating that the delegate was dissatisfied because in various respects there was "no evidence" in a technical sense.  I treat the reference as beings to a lack of probative material confirmatory of what the applicant had put.

There was material before the Tribunal concerning the laws of Vietnam relating to drug offences that indicated certain drug offenders were at risk, if convicted, of capital punishment. However it was accepted by counsel for the applicant that this material concerned Vietnamese laws which were not in operation at the time of the commission of the offence by the applicant.  There was no material before the Tribunal that would have supported a conclusion that the regular and lawful application of Vietnamese laws could result in the applicant being subjected to capital punishment.  Accordingly the submission of counsel for the applicant was limited to the contention that there was material before the Tribunal which indicated or tended to indicate that the applicant would be subjected to a process of unfair trial in Vietnam in which the laws would not or might not be properly applied.  Support for this submission was said to be found in the United States Department of State Vietnam Report on Human Rights Practices 1996, the 1997 Amnesty International Report including a report on Vietnam and an article dated 8 December 1997 in the South China Morning Post.

In my view the material before the Tribunal permitted it to reach the conclusion it did.  It is clear from para 40 of the Tribunal’s reasons, which I set out earlier, that the Tribunal turned its mind to this material concerning the possibility of unfair trial.  However, the material to which the Tribunal referred, and to which I was referred in these proceedings, did not dictate a particular conclusion.  It was open to the Tribunal, in my opinion, to form the view it did on this issue.

The second ground advanced by counsel for the applicant was related to the first.  It was submitted that consideration of the question whether the applicant was exposed to risks of the type referred to in para 40 should involve an assessment of whether there was a real chance of the applicant being subjected to that risk.  The concept of “real chance” is a well established one when assessing whether a person is a refugee for the purposes of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees:  see e.g. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

There is no warrant either in the provisions of the Migration Act 1958, the ministerial guidelines promulgated for the implementation of s 200 or at general law, dictating that an approach involving notions of “real chance” should be adopted by the Tribunal. Indeed, it is consistent with the guidelines for the decision-maker to approach this issue on the basis that it was necessary to have a high measure of satisfaction about the nature of the harm that would be occasioned to the applicant. The ministerial guidelines relevantly provided:

19.      The most important broad criteria on which judgements will be based are the nature of the crime; the possibility of recidivism; the contribution the person has made to the community or may reasonably be expected to make in the future and the family and/or social ties that already exist.  In particular the following factors will be taken into account when making a decision on whether a deportation order should be issued:

·…

·any unreasonable hardship the offender would suffer;

·…

This list is not exhaustive; if relevant, other factors that come to notice will be taken into account in individual cases.

(Emphasis added)

The guidelines speak of any unreasonable hardship the offender would suffer.  The Tribunal can depart from these guidelines if it wishes and is not bound to slavishly follow them.  However the applicant has not disclosed any error of law in relation to the way the Tribunal approached the risk of harm to the applicant if he returned to Vietnam.

The third ground concerned the consideration by the Tribunal of recidivism on the part of the applicant.  This was an issue dealt specifically in the decision of Tribunal between paragraphs 22 and 25 inclusive.  The ultimate conclusion of the Tribunal which addressed this and other factors is found in para 44:

Having regard to the totality of the evidence before it and to the submissions made on behalf of the applicant and the respondent, the Tribunal is satisfied that this is one of those cases in which the need to protect the Australian community against persons who commit serious drug-related offences like that for which the applicant was convicted, must be given pre-eminence over those factors which would mitigate against his deportation.  The gravity of the offence and the applicant's lack of ties in the community render it difficult for the Tribunal to assess  the risk of re-offending as being of a level which would justify his continuing presence in this country.  In paragraph 10 of the Policy the observation is made that the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences.  The potential damage to the community from importing heroin is universally accepted as great.  The risk of recidivism is enough to outweigh, in the Tribunal's view, any other consideration of hardship to others or to the applicant that might make the carrying out of a deportation order inappropriate.

The submission of counsel for the applicant concerning the approach adopted by the Tribunal to the question of recidivism was, in substance, that the Tribunal ignored the views of the parole officer from the Probation and Parole Service of the Department of Corrective Services who had been responsible for considering the position of the applicant.  The views of the parole officer emerged in three ways: there was first a written report by him to the Department of Immigration & Ethnic Affairs dated 29 October 1996, there was a supplementary written report by him dated 9 December 1997 and there was the oral evidence given by the parole officer to the Tribunal on 21 January 1998.  That oral evidence was quoted by the Tribunal in para 25.  The views of the parole officer in the quoted passage of his oral evidence commenced with the observations:

The risk of re-offending I judge is minimal.

This is to be contrasted with a view that had earlier been expressed by the parole officer in his first report of 29 November 1996 which was also quoted by the Tribunal.  The parole officer had said in that report:

Of concern are his prospects on release, as he does not appear to have any ties.  His plans are vague, and his contacts few.

As far as I can glean from the material to which I was taken in these proceedings, the change in circumstance between the position adopted by the parole officer when preparing his report on 29 November 1996 and the position adopted when giving evidence on 29 January 1998 was that the applicant had gained the support of an organisation called Life After Prison Support Centre.  One might be a little sceptical that the support of that body would have materially changed the views of the parole officer if, indeed, the change in position evident from 29 November 1996 to 21 January 1998 can be described as a material change.

In support of his submission that the Tribunal's consideration of this issue manifested an error of law, counsel for the applicant referred me to a passage of this court in Luu v Renevier (1989) 91 ALR 39 at 48:

The finding of Mr Luu that there was a “real risk” of recidivism by Mr Renevier was crucial to his decisions to refuse the application for a permanent entry permit and to make a deportation order.  In arriving at that finding Mr Luu did not claim any personal expertise in assessing the likely effect of such an operation as Mr Renevier underwent.  He based himself entirely upon the two medical reports.  Under such circumstances the finding could only be rationally made if founded upon cogent evidence from a suitably qualified medical practitioner with knowledge of the facts.  There was no such evidence.

It is unnecessary in this judgment to rehearse the quite unusual facts in Luu.  It is plain from a reading of the judgment of the Full Court that there was no evidence to support the finding made by the delegate of the Minister that there was a real risk of recidivism.

Generally the question of whether there is a risk or recidivism is a matter to be considered by the Tribunal on the material before it.  So much is apparent from a joint judgment of a Full Court of this Court in Barbaro v Minister for Immigration & Ethnic Affairs (1982) 44 ALR 690. The Full Court in dealing with this question of recidivism by reference to its consideration by the Tribunal, said at 692:

Reading the passage in context, we understand the Tribunal to be conveying its view that there was at least some risk of recidivism.  This is a matter which in its nature is largely one of speculation; one can only conjecture about the risk involved.  It is not a matter of proof, but of judgment.

In the present case there was material before the Tribunal concerning the circumstances of the applicant including his prospects of employment, the nature of the offence he committed and his limited ties in the Australian community, that permitted the Tribunal to reach the conclusion it did about the risk of recidivism.  Its consideration of that issue does not, in my opinion, disclose an error of law.

The last ground concerned the consideration of the Tribunal of this question of ties to the community.  The question of ties to the community is an issue addressed by the ministerial guidelines at two points.  The submission was made to the Tribunal and repeated in these proceedings that this question ought not simply involve, indeed may not involve at all, a consideration of the extent to which the applicant has developed friendships and a network of people known to him in the Australian community or has been integrated into the Australian community.  In my opinion the approach adopted by the Tribunal to this question was unexceptionable and its consideration of this question as it is manifest in the ministerial guidelines was equally unexceptionable.

It follows from what I have said that I am not satisfied an error of law has been established by the applicant.  Accordingly I order that the application is dismissed and the applicant pay the respondent's costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore

Associate:        
Dated:             17 August 1998

Counsel for the Applicant:	Mr M Vincent
Solicitor for the Applicant:	Legal Aid
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 August 1998
Date of Judgment:	17 August 1998