Ali Ali v Minister for Application, Local Government & Ethnic Affairs

[1992] FCA 947

JUDGMENT No. ..?.k z,...l ,.S&

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOKITE WALES DISTRICT REGISTRY) NG 465 of 1992

GENERAL DIVISION 1

Between: ALI ALI

Applicant

And: MINISTER FOR IMMIGRATION,

10 DEC 1992 LOCAL GOVERNPIEWT h ETHNIC

FEDERAL COURT OF

AUSTRALIA	AFFAIRS
PRINCIPAL
REOISTRV	Respondent

EINPELD J SYDNEY 24 AUGUST 1992

The applicant was convicted of the crime of murder in 1981 and sentenced to life imprisonment. He was released on parole on

4 November 1991. A deportation order, made pursuant to

section 55 of the Migration Act on 1 November 1991, is now sought to be executed. The order was considered by the Administrative Appeals Tribunal on 7 July 1992 and the Tribunal affirmed the decision to deport. This is an appeal

m	from that affirmation.
It was obvious from the face of the filed notice of appeal, and was highlighted by the written submissions of the respondent, that the grounds of appeal did not contain any question of law. This Court is, of course, limited in its capacity to review decisions of the Tribunal to such
questions. Thus in written submissions which I ordered before and in preparation for this hearing, the applicant
foreshadowed that he would not be proceeding on the grounds contained in the notice of appeal as filed but would be seeking to proceed on a number of other matters. To this end I . he brings before the Court this morning an qmeided notice of appeal which he seeks to file and argue in the appeal , , listed for hearing today. Obviously, the factual situation is the

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same and therefore there is some similarity between the X.

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amended notice of appeal and the one originslly 'file$:

In its attempt to deal with the legal problem posed by the •
filed appeal, the amended notice of appeal adds two
significant assertions. One of them relates to a supposed
government policy concerning the deportation of non-citizens
who had committed deportable crimes whilst in Australia. The
policy was said to allow someone who had been in Australia for

longer than five years not in custody - such as the applicant

- to remain here notwithstanding conviction and imprisonment

for serious crimes. The other new ground relies on the making of this deportation order long after the murder which

made just prior to the completion of the applicant's period of	ultimately activated it had been committed, it being in fact
imprisonment. There seems to be some evidence that about a year before the order was made, the applicant was notified whilst in prison that deportation was in contemplation.
The Tribunal was not asked to consider either of the two additional matters raised in the amended notice of appeal. As it seems to me, neither of these matters can properly be dealt with on this appeal. The existence of the suggested policy, its terms, its applicability to this case, whether it was considered by the decision-maker - all of these matters and more arise and none have been evidenced. Likewise on the second matter, none of the circumstances of or reasons for any delay have been evidenced. There is no provision for their initial consideration on this appeal.
However, it is possible that these issues could be raised in

•	other proceedings, in particular in proceedings by way of judicial review of the decision to deport, if leave to proceed out of time can be obtained and the right to seek review otherwise exists. There is still a problem because they were not considered below but it is less exclusionary than at present. I therefore raised at the hearing today whether the applicant ought now to be permitted to argue for leave to file an application for judicial review of the decision to deport, although significantly out of time. The applicant
a	understandably embraced the proposition with enthusiasm but
the respondent opposed the suggested course on the basis that this appeal should be dealt with as a separate item. He did
not argue that the Court did not have jurisdiction or power to consider review, but said that whatever may happen in the future should be allowed to happen.
The community has already spent a considerable sum of money on Mr Ali. It maintained him in prison for ten years and has also suffered considerably from other illegalitiee including acts of violence which he committed before the murder. It goes without saying that the family of the murdered person have been very severe victims of Mr Ali's activities. In consequence, I am not inclined to permit a procedure by which the applicant could have this hearing by way of appeal from the determination of the Tribunal and another hearing to deal with the matters which the amended notice of appeal seeks to raise. To me that would be altogether too much public expense.
It would also produce significant further delays. For example, if this appeal against the Tribunal's determination were upheld on the technical basis now proposed and the matter went back for further consideration, the Tribunal would have to find that the new matters raised in the amended notice of appeal were not placed before the original decision-maker. The evidence on which they are based would have to be investigated. If the Tribunal recommended the reconsideration of the deportation order on these grounds but upon
with it was re-affirmed, that decision itself would be liable reconsideration by the decision-maker, the decision to proceed to further review.
In almost any circumstance of which I can think, therefore, the advocacy of these matters and their availability would require at least one more hearing. Everything should be done to avoid that occurrence, if it is at all possible. I therefore invited the applicant to place before me and argue a notional application for leave to file out of time an application for judicial review of the decision to deport. Because of his usual thoroughness in the preparation of cases, counsel for the applicant was in a position to proceed with such an application. He even had, as he usually does, helpful written submissions to support the argument.
The application for an extension of time for judicial review
was first based upon the concept that deportation orders
•	should be made within a reasonable time after the events on which they are based occurred: Koon Wino Lau v Calwell [l9491 80 CLR 533, but reasonableness depends upon the factual circumstances including the conduct of the deportee. It is argued that the circumstances here are such as to have demanded that the deportation order be made at the beginning of, or at least early in, the applicant's term of imprisonment. The failure to do so, it is said, lulled the applicant into a belief that he would not be deported and
a	subjected him to prejudice as a result. Mentioned in this
connection were such matters as that most of his family now lives in Australia and that he applied himself to
rehabilitation in prison with some degree of commitment, albeit after his early imprisonment was somewhat less than ideal.
I cannot see why it is either reasonable or ought to be demanded that a deportation order should be made at the commencement of what was at the time a sentence of life imprisonment. It is widely known in the community, and would undoubtedly have been known to the respondent, that life imprisonment ordinarily does not mean the whole of a person's life and therefore that the applicant would be likely to have qualified for release from prison at some fixed time in the future. Nevertheless, there could have been little doubt in the circumstances of this case that the applicant was likely to be in prison for a considerable time. On the other hand, it must have been known to the applicant that the commission of a serious crime by a non-citizen of this country would at least place at risk his continuing entitlement to remain here when he was eventually released. For myself I should have thought that any non-citizen who had committed murder, not to mention this applicant's other serious crimes before, would have had well in mind - and if not him, then members of his family or friends or advisers - that deportation was at least a possibility, if not a likelihood, when the sentence was complete.
coming before the respondent's department, the stress on its In view of the many pressing matters of status and liberty
resources and the difficult tasks it has to perform, it is therefore not at all unexpected that it would give the fate of the applicant, so far as deportation is concerned, somewhat less than urgent priority. This applicant was a migrant to Australia who has not taken out citizenship but has remained here as a non-citizen for as long as 20 years. During that period of time he appears to have paid little regard to the social and legal norms of this community. To my way of thinking, he is not in a position to claim prejudice by reason of the determination of the Minister for Immigration to give priority to matters other than his deportation.
As I see it, a person who is serving a life sentence for murder must take his turn in the considerations of the bureaucracy. There are many people in this country whose far more auspicious immigration status questions await attention
•	but which pressures of work and the exigencies of inadequate resources force to be delayed. In my opinion, the apparent failure of the department to consider, and certainly the Minister's failure to make, a deportation order in respect of this applicant before some arbitrarily fixed time cannot be viewed as "an act of capriciousness, forgetfulness, oversight or perversity", to use some of the suggested criteria proposed by the applicant's counsel.
In these circumstances, it seems to me that there is no
on the grounds that it was unreasonably delayed in its making, foundation for granting leave to review the deportation order
as such an application, in my opinion, would be bound to fail.
The application for leave also raises the alleged policy that non-citizens who had committed deportable crimes should not be deported if they have been at liberty in Australia for longer than five years. There was no evidence of this policy before the Tribunal and therefore there is none before me. From the bar table counsel for the Minister says there was no such policy at the relevant time. He says also that even if there had been, it would have been a matter for the original decision-maker rather than the Court on judicial review. Any such policy pronouncement would need to be closely examined to see whether it had any application in this case.
I agree with those submissions. I do not believe that the
matter can be reopened now to consider a policy of which there
is no evidence and which would undoubtedly require evidence
even to understand, let alone to examine for appropriateness
to this particular case. At the very least a ministerial
policy of the type suggested would not be able to be applied
without consideration of the factual circumstances. This must
be especially so when the deportable crime is murder, but
whatever the crime, if such a policy were applied without
consideration of the particular facts of the case, judicial
review would be available on the ground that the policy was
applied blindly and without consideration of the particular a
circumstances.
The applicant's expression of the so-called policy conceded that it is discretionary, and there is no evidence to support a submission that an exercise of the discretion in favour of this applicant was called for. Thus even if there was such a policy and even if it applied to the applicant's circumstances, I cannot see how the failure to apply it in consideration of this deportation order could amount to a reviewable error of law in the making of the deportation order itself. If the policy existed, it is hardly conceivable that it would not have been in the minds of the decision-maker when this deportation order was made or recommended to the Minister. But as there is no evidence on the matter at all, even assuming that the notional application for leave to file an application for review of the deportation order out of time were granted, no ground is made out for the review of the deportation order on either of the bases suggested.
The remainder of the amended notice of appeal does not, it seems to me, raise any significantly new matters so as to prejudice the respondent in any way and no prejudice has actually been claimed. In fact the respondent in arguing the acceptability of the amended notice of appeal answered the remaining matters by saying that they raise questions of fact and not of law. As that has always been the respondent's approach to the original notice of appeal, this argument seems to me to raise matters for consideration on the appeal itself
be allowed to be substituted. and not on the question of whether the amended notice should
I therefore propose to allow the amended notice of appeal with the questions of law set out in paragraph 2(i) to (vi) inclusive and the grounds of appeal in paragraph 4(i) to (vi) inclusive. As so reconstructed, the applicant effectively now bases his appeal from the Tribunal's determination on three grounds. One is that the Tribunal handled inadequately, in venue; the third was, to cover the event that the first application was granted and the second one refused, the matters of substance raised in the amended application. The first respondent's counsel then read his affidavits and drew particular attention to evidence on all these matters. The first respondent's counsel expressLy said that he was willing for the substance of the amended application to be heard and determined because the applicant had brought no evidence to
•	support it.
After hearing this evidence and the cross-examination of Mr Price, and after Mr Price was permitted to leave to return to Perth, counsel for the applicant commenced to argue for the relief sought. During the course of argment, she suddenly sought to read additional evidence, including three affidavits going to, amongst other things, the question of whether adequate notice was given to the liquidator. If this was a matter of substance on this application, those affidavits
a	should have been read earlier. Even though it meant the very
permitted the affidavits to be read. The fact that these late re-opening of the applicant's case, I nevertheless
affidavits had not previously been adumbrated or notified on 23 June or today meant that Mr Nilant could not possibly have had any knowledge of the case which the applicant wished to make in this respect. Yet it was his supposed default in this respect that was being put under attack.

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circumstances I shall briefly outline, the risk of recidivism on the part of the applicant. The second is that the Tribunal failed to consider the circumstances of the commission of the offence in question. Thirdly, the Tribunal is said to have failed to consider the successful rehabilitation of the applicant and the interest of the Australian community in having expended and undertaken significant investment to that end.

The Tribunal dealt with the possibility of recidivism as a • central matter to its determination. In particular, the learned Deputy President made a careful assessment of the evidence presented to him concerning the possibility that the applicant would offend again. In view of the applicant's past history, the likelihood that he would drink alcohol in the future was an important part of this consideration.

The Deputy President had available to him a significant amount of material in this regard. Firstly, there were the findings

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when it considered the re-sentencing of the applicant after he	and judgment of the Supreme Court of New South Wales (Allen J)
had served many years in prison. Second, there were evidenced the detenninations of what I understand to be two sentencing review authorities, each of which was at the relevant time under the chairmanship of a serving or former judge. The learned Deputy President also had some primary material, at least some of which it seems had been available to those review tribunals. It is clear from his determination that he gave the considerations both of Justice Allen and of the two review tribunals, and the primary evidence, close and careful consideration.
It is submitted that the Tribunal failed to have regard to these matters. In the way in which the matter was argued, I am very doubtful that this raises a question of law at all but if it does, the argument must fail. The best support that I can have for that conclusion was actually given by counsel for the applicant himself, who it must be said has argued this difficult matter with particular skill, especially having regard to the fact that he seems to have only come into the matter late. But in answer to a question I put to him after he outlined with his customary thoroughness the way in which the Tribunal approached the possibilities of recidivism, he agreed that it was open to the Tribunal to come to a different conclusion to those reached by Justice Allen and by the two review bodies. Once that is said, any possible question of
law evaporates. It was certainly open to the Deputy President
to come to different conclusions to two psychologists and some other experts who, after interviewing the applicant, gave
reports which were part of the primary material.
This concession was completely correctly made and there can be no criticism of counsel for having made it. In considering or reviewing the period which a person should spend in custody, sentencing authorities charged with the respective responsibilities consider a range of matters, including a comparison between the circumstances appropriate to the
particular person whose case is being reviewed and others who have been sentenced or reviewed in similar circumstances. They also consider the facts applicable to people still in prison and to those who have already been or are proposed to be released as well as a series of other social and personal questions.
In a deportation case, whilst some of the matters considered by some of these other bodies may and probably will be relevant, they are certainly not decisive or the only matters that need to be considered. In this case the Tribunal was not considering the balancing questions that come before courts and tribunals fixing or reviewing sentences. Deportation is the reverse of permitting someone to come and live in Australia. At the time people are permitted to come and live in Australia, their character is investigated. Sometimes they give various undertakings. By inference, if not explicitly, they accept or are assumed to accept various behavioural norms of this society.
Australian way of life offered to them, the question of If by their voluntary conduct they determine to reject the
whether their permission to remain here should be withdrawn becomes a very stark one. Bodies reviewing the terms of imprisonment of convicted persons do so from the standpoint that there are only two choices available -- retention in prison or release with or without conditions. In the case of deportation, there is a third and quite separate option. It attracts its own separate criteria even though it may also share some of the criteria attaching to the other decisions.
For those reasons it seems to me perfectly open, as the applicant's counsel wisely conceded, for the Tribunal to take into account what was said by these other bodies but to determine the matter of deportation on a different basis to them. It must, of course, take into account and have regard to the evidence presented but there is no legal requirement to adopt it. As has been said in many cases, "having regard to" a matter or taking it "into account" does not mean accepting it, it means considering it.
Not only did the Deputy President consider all these matters. It seems to me that he gave them very considerable weight as was entirely appropriate. The Deputy President noted the applicant's agreement that only one drink is necessary to put him on the downward path. The fact that the Tribunal
ultimately concluded that the risk of the applicant having one drink in the rest of his life with the attendant possibility
if not likelihood, as was virtually agreed in the evidence, that it would lead him into further violence and offence, cannot now be assailed. Certainly the risk could not be excluded to the point where community standards would be offended by his deportation.
The ground of appeal is actually expressed in paragraph 4(i) of the amended notice of appeal as that there was no evidence that the applicant was likely to re-offend. The issue is better expressed in paragraph 2(i) of the amended notice of appeal which states the question of law as whether there was any evidence to support the Tribunal's finding that the risk of recidivism was not low or minimal. There was in fact, no finding that he was likely to re-offend. The finding was that the risk of recidivism was unacceptably high. That was not a finding by the Deputy President that the risk was not low. It was a finding that whatever risk the sentence review bodies were willing to take in relation to the applicant's continued imprisonment, he was not willing to accept it as appropriate for a non-citizen liable to deportation. He said:

Having regard t o t h e na ture o f t h e crime and t o t h e consequent ly low r i s k which t h i s community should be asked t o take , I cons ider t h a t t h e r i s k i s

unacceptably high .

I must say that although as a finding of fact it is not a

matter for me to determine or review, I find that conclusion	quite unexceptionable.
The second matter raised was the particular offence in the sense of its circumstances. In this regard the learned Deputy President took into account the full details of the offence as disclosed by the evidence before him and compared them to the views expressed by the trial judge (Cross J) during the sentencing process. That judge made remarks indicating that the circumstances of the case made it not the worst case of this kind which is likely to occur or which that particular judge had met.
Looked at from today, nearly twelve years later, it is difficult to see precisely to what the learned trial judge was referring, but as he had presided over the trial and as he was a judge of much experience, I would not even contemplate substituting my own views for his. It is true that the Deputy President should likewise not have done or tried to do so but, in my opinion, he did no such thing. The circumstances of the case were extremely serious, the murder was quite unpremeditated and occurred almost in an instant apparently during or after an argument in the context of the applicant being considerably affected by alcohol. Understandably, the Deputy President described the crime as "serious" and "horrific". He came to the conclusion "that the crime of murder where the victim was viciously chosen at random is repulsive to all members of the community". He
regarded that as the outstanding feature to be considered in
relation to deportation. In my opinion, it is not possible
even to question such a conclusion.
As he was perfectly entitled, indeed bound, to do, the Deputy President took into account as well the circumstances of the family of the dead man, considering them as, in effect, the living victims of the crime who could never be recompensed for what occurred. He also took into account the fact that the victim of the crime was young and that the circumstances took place in what appears to have been an otherwise entirely social circumstance. As I see it, the Tribunal would also have been entitled to take into account the fact that at the trial a defence of self defence was apparently raised, and that the verdict of the jury indicates that it did not believe the applicant's allegations made in that respect having regard to the onus of proof and other legal rules applying to that defence.
The applicant argues that mitigating circumstances of the crime include its impulsive unpremeditated nature, the role of alcohol in its commission, and the absence of any intention to murder before the applicant came into contact with his victim. But these were matters for the Tribunal which it did not omit to consider. Indeed, the Deputy President's concern was that the applicant might commit similar offences in the future. He was not concerned with the possibility of premeditated crimes of violence, committed without alcohol being a contributing

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to the moral culpability of the offender, it is not	cause. While the unpremeditated nature of a crime is relevant
particularly relevant to the damage the community suffers. The victims remain victims whether the crime is impulsive or calculated. I find it difficult to see how the ground raises an issue of law but if it does, it is not made out. In my opinion, there was no error of the Tribunal under this heading.
Finally there is raised the question of rehabilitation. On the evidence before the Tribunal, the applicant was shown to have had a very unsatisfactory start but a more than satisfactory completion to his imprisonment. During his time in prison, he appears to have adjusted to community attitudes and standards and committed himself to a level of involvement in productive activity which was commendable. The Tribunal took into account that the applicant now has the benefit of trade skills acquired during his time in prison.
It is always possible in such circumstances that a prisoner who is a non-citizen might so act because he was advised to do so or thought on his own part that he should do so in order to avoid deportation. But there is no evidence of any such bad faith here and it is not argued on behalf of the Minister that the applicant's efforts at rehabilitation were other than bona fide and genuine.
Likewise, the evidence establishes that, shortly after his
with whom he had had only a limited association beforehand. release from prison, the applicant married an Australian woman
It is suggested in the papers, and it is once again certainly possible, that he undertook this marriage with a view to assisting his efforts to avoid deportation. But again the respondent did not cross examine to establish, and did not argue, that the marriage was other than genuinely undertaken with a view to its permanence and there is no reason for coming to any conclusion other than that it was a bona fide marriage. Thus the applicant said that in addition to the formal rehabilitation undertaken in prison, he now has the comfort and support of his wife which might be expected to contribute significantly to his readjustment to life and a future law-abiding existence.
Whilst of course, as policy and the public interest would demand, hardship to the applicant in the event of deportation must be taken into account, it is not suggested that the Tribunal did otherwise than consider this issue adequately, and there is no ground of appeal that hardship to him was not properly considered. Hence under the rehabilitation heading, the argument is that the Tribunal "ignored the damage to the community from the loss of these skills, as well as the loss of the example set by the applicant within the prison system" (paragraph 4(vi)).
It is true that the Tribunal does not seem to have considered the benefit to the community of the applicant's skills, and the community's investment in him. The mention of his trade
terms of its contribution to Australian society. No doubt skills was in the context of hardship to the applicant, not in
this was because the question of possible recidivism was regarded as a substantially more important factor. The Tribunal considered, and I respectfully agree, that the cost to the community in terms of the loss of a person's life is incalculably greater than any contribution this applicant, however well trained professionally, could make to Australian society. The risk of another murder or serious assault quite understandably was the principal concern of the Deputy President. In my opinion, the Deputy President was not bound to consider the loss of the applicant's skills to the Australian community. But even if he was so bound, this factor is not of sufficient significance compared with the risk of the applicant committing a crime of violence so that its consideration could have materially affected the decision.
The Tribunal took into account the fact that the applicant had attained these skills, had ultimately done well in prison, and had married. It accepted that he was apparently reformed so far as drink is concerned, and that although a social drink was still possible, it was unlikely he would place himself in the position that he was in in the years leading up to the murder, when he committed a large number of other offences, including some serious offences, in the main apparently while affected by alcohol.
The task before the Tribunal, however, was to consider whether these circumstances required that the deportation order be
revoked, not whether the applicant should be returned to
prison to see out the rest of his sentence or whether the
decision to release him was wrong. In performing this task, the Deputy President took into account the appropriate matters and came to the conclusion that the standards of the community and its tolerance in relation to the behaviour of non-citizens had been exceeded by this applicant. In doing so he drew a balance between those things that could and should be held against the applicant and those matters that could and must be taken into account in his favour. Whatever might be the proper conclusion in relation to parole, the conclusion reached by the Tribunal in the context of deportation was that good behaviour, rehabilitation and marriage are not enough to balance the applicant's history of crime and the unprovoked killing of another human being. I can see no legal or other reason to disturb this decision.
The appeal is dismissed with costs.