Bax v Minister for Immigration and Multicultural and Indigenous Affairs

Case •

[2002] FCA 1167

•

18 SEPTEMBER 2002

FEDERAL COURT OF AUSTRALIA

Bax v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1167

MIGRATION - judicial review – New Zealand citizen – indefinite special category visa – in Australia for less than 10 years – serious criminal convictions – two counts of assault occasioning bodily harm – imprisonment – deportation order – application for review by Tribunal – effect of privative clause, s 474 on Tribunal’s powers – Minister’s General Direction – whether binding on Tribunal – whether Tribunal pre-empted exercise of discretion by prima facie view of clear case for deportation – no ground for review made out – application dismissed.

Migration Act 1958 (Cth) s 201 s 474 s 500
Judiciary Act 1903 (Cth) s 39B
Administrative Appeals Tribunal Act 1975 (Cth)

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 applied
Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 cited
Collector of  Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited

DAVID JOHN BAX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W544 of 2001

FRENCH J
18 SEPTEMBER 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

 W544 OF 2001

BETWEEN:

DAVID JOHN BAX
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

18 SEPTEMBER 2002

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

 W 544 OF 2001

BETWEEN:

DAVID JOHN BAX
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

FRENCH J

DATE:

18 SEPTEMBER 2002

PLACE:

PERTH

REASONS FOR JUDGMENT

Introduction

  1. David John Bax was born in New Zealand on 26 October 1958.  He is a New Zealand citizen.  He came to Australia on 25  September 1994 and has remained in this country since that time.  He was granted a special category visa upon entry with no fixed expiry date.  The visa expires upon his next departure from Australia.

  2. On 19 August 1999, Mr Bax was convicted on two counts of assault occasioning bodily harm said to have been committed on 28 March 1998.  He was sentenced to sixteen months’ imprisonment on each count, the sentences to be served concurrently.  He had also at that time been dealt with for some motor vehicle offences committed on 1 February 1999.  These were refusing a breath test, giving a false name and address, driving without a motor driver’s licence and refusing to give his name and/or address.

  3. Mr Bax had a criminal history in New Zealand before he came to Australia.  That history was as follows:

Date of

 Offence

Location of

Offence

 Offence Sentence/Outcomes
09.10.76 Wellington,
New Zealand 		Driving in a dangerous manner $120 fine; disqualified from driving for 9 months.
06.01.77 Lower Hutt,
New Zealand 		Driving in a dangerous manner $125 fine; disqualified from driving for 1 year
08.02.77 Lower Hutt,
New Zealand 		Disorderly behaviour – likely to cause violence 64 hours community work; probation for 1 year and 6 months
27.11.85 Greymouth,
New Zealand 		Cultivate cannabis Fine $750
24.06.88 Christchurch,
New Zealand 		Licensed person with excess blood alcohol level (0163) $350 fine; disqualified from driving for 1 year
25.09.90 Nelson,
New Zealand 		Social welfare fraud

Reparation of $4,615.45; non resident PD 3 months
12.7.93 Nelson,
New Zealand 		Driving with excess blood alcohol content (0147) $750 fine; disqualified from driving for 6 months
08.10.93 Nelson,
New Zealand 		Male assaults female (manually) 4 months imprisonment
08.10.93 Nelson,
New Zealand 		Possess offensive weapon (other) 2 months imprisonment
22.07.94 Nelson,
New Zealand 		Common assault (manually) Sentence if call 1 year (ie suspended sentence).

  1. On 12 October 2000, the Minister for Immigration and Multicultural Affairs signed an order pursuant to s 200 of the Migration Act 1958 (Cth) that Mr Bax be deported from Australia. He also signed a certificate under s 502 of the Act in the following terms:

    “CERTIFICATE

    I, Philip RUDDOCK, Minister for Immigration and Multicultural Affairs, having decided that, because of the seriousness of the circumstances giving rise to my decision to deport David John BAX under Section 200 of the Migration Act 1958 because of circumstances specified in Section 201 of the Migration Act 1958, it is in the national interest that David John BAX be declared an excluded person in accordance with Subsection 502(1) of the Migration Act 1958.

    Dated this 12th day of October 2000.

    Philip RUDDOCK
    Minister responsible for Administering the Migration Act 1958”

  2. On 8 November 2000, Mr Bax, in the presence of his legal adviser, was served with a copy of the deportation order by an officer of the Department.  At this time he had been at liberty, on parole, for about twenty months.  His lawyer sent a letter to the Department on that day advising of his intention to make application to the Administrative Appeals Tribunal to appeal the order of the Minister.  At that time it appears he had not been made aware of the s 502 certificate.  In a fax sent to the lawyer on the same day, the officer who had earlier served the deportation order on Mr Bax advised that a s 502 certificate had been signed on 12 October and, in accordance with the requirements of the Act, had been tabled in both Houses of Parliament on 30 October 2000.  In the letter Mr O’Connor, the officer concerned, said it was his understanding that the signing and the tabling of the s 502 certificate precluded review by the Administrative Appeals Tribunal.  He said he would arrange for corrected documentation to be served upon Mr Bax.  The Department evidently attempted to speak with Mr Bax at the Immigration Detention Centre on 15 November 2000 but he refused to speak to any departmental officer unless his lawyer were present.  A letter had been prepared by the Department for hand delivery to Mr Bax on that day referring to the initial erroneous advice of 8 November that he was entitled to seek a review of the decision to deport him at the Administrative Appeals Tribunal.  The letter of 15 November sought to advise him of the s 502 certificate and the consequence that he had no entitlement to seek merits review, although he did have an entitlement to seek judicial review through the Federal Court.

  3. In the event, Mr Bax applied to the Administrative Appeals Tribunal in November 2000 for review of the Minister’s decision.  At the hearing which did not take place until 18 October 2001, counsel for the Minister conceded that the s 502 certificate was invalid and that no point would be taken that the Tribunal lacked jurisdiction.

  4. On 29 October 2001, the Tribunal affirmed the decision to deport Mr Bax. On 26 November 2001, he filed an application under s 39B of the Judiciary Act 1903 (Cth) seeking prerogative relief against the Tribunal and/or the Minister. The hearing of the application took place on 1 May 2002 but judgment was deferred pending the decision of the Full Court about the effect of the new privative clause, s 474 of the Migration Act, in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.

    Grounds of the Application

  5. The grounds of the application, by the time the matter came on for hearing in the Federal Court, were to be found in a minute of further amended grounds of application which was filed at the hearing.  Leave was given to amend the grounds accordingly.  They were in the following terms:

    “(a)The Administrative Appeals Tribunal (“AAT”) erred by acting in excess of its jurisdiction and/or by committing jurisdictional error in ways that affected its exercise of power and/or by constructively failing to exercise jurisdiction.

    Particulars

    (1)At paragraph 11 of its Reasons the AAT formed a prima facie view that the Applicant was “a clear candidate for deportation”.  The AAT did so without any or without a proper consideration of the matters contained in the Minister’s General Direction – Criminal Deportation – No 9 (“General Direction No 9”) and without an application or a proper application of the relevant criteria contained in General Direction No 9.  In so doing the AAT:”

    (i)ignored or did not give effect to or did not take into account relevant material or relevant considerations; 

    (ii)relied on irrelevant material;

    (iii)made an erroneous finding and/or reached a mistaken conclusion;

    (iv)acted in breach of one or more indispensable conditions and/or preconditions to jurisdiction or exercise of power and/or imperative duties and/or went beyond inviolable limitations or restraints;

    (v)did not exercise its power reasonably.

    (2)After forming the prima facie view referred to in (1), the AAT proceeded to consider whether the Applicant had demonstrated that the prima facie view should be disturbed.  The AAT erred in approaching the matter in this way and in so doing exceeded its jurisdiction and/or committed jurisdictional error in one or more of the respects referred to in (1)(i) to (v) above, and further acted in excess of jurisdiction and/or committed jurisdictional error in not complying with or in departing from the requirements of procedural fairness and/or natural justice.

    (3)The AAT erred in approaching the matter on the basis that satisfaction of the criteria contained in s 201 of the Migration Act 1958 (Cth) prima facie justified an order for deportation. In so doing the AAT exceeded its jurisdiction and/or committed jurisdictional error in one or more of the respects referred to in (1)(i) to (v) above.

    (4)The AAT assessed or purported to assess the risk of recidivism without a proper application or consideration of General Direction No 9.  In so doing the AAT exceeded its jurisdiction and/or committed jurisdictional error in one or more of the respects referred to in (1)(i) to (v) above.

    (5)In assessing or purporting to assess the risk of recidivism, and in particular whether the Applicant had become rehabilitated, the AAT considered the Applicant’s positive demeanour in the witness box and presentation at the hearing to have been at least in part the product of chronic depression.  This view played a material part in the AAT’s assessment of the risk of recidivism.  The AAT erred in this regard in that there was no evidence that the Applicant suffered from chronic depression at any material time.  Further, there was no specialist medical evidence or other material before the AAT as to the effects or symptoms of chronic depression, and it was not open to the AAT to reach these conclusions.  The AAT thereby exceeded its jurisdiction and/or committed jurisdictional error in one or more of the respects referred to in (1)(i) to (v) above, and by taking extraneous matters and considerations into account.  The AAT further acted in excess of jurisdiction and/or committed jurisdictional error in not complying with or in departing from the requirements of procedural fairness and/or natural justice.

    (6)The AAT further erred in not drawing the matters referred to in (5) concerning the Applicant’s demeanour on which it intended to rely to the attention of the Applicant’s counsel at the hearing and to have invited submissions as to the legitimate inferences to be drawn from the evidence and from the Applicant’s demeanour.  The AAT thereby acted in excess of jurisdiction and/or committed jurisdictional error in not complying with or in departing from the requirements of procedural fairness and/or natural justice.

    (7)The AAT assessed or purported to assess the risk of recidivism without a proper consideration of the relevant evidence and material before the AAT.  In so doing the AAT exceeded its jurisdiction and/or committed jurisdictional error in one or more of the respects referred to in (1)(i) or (v) above.

    (8)The AAT assessed or purported to assess the issue of the seriousness of the offences committed by the Applicant without a proper application or consideration of General Direction No 9.  The AAT thereby exceeded its jurisdiction and/or committed jurisdictional error in one or more of the respects referred to in (1)(i) to (v) above.

    (9)In assessing the seriousness of the offences committed by the Applicant the AAT erred by not giving proper consideration to the learned sentencing Judge’s sentencing remarks, not giving proper consideration to or attaching appropriate significance to the length of the sentence imposed, overstating the seriousness of the offences, and not having regard or proper regard to the circumstances of the offending and to mitigating factors.  The AAT thereby exceeded its jurisdiction and/or committed jurisdictional error in one or more of the respects referred to in (1)(i) to (v) above.

    (10)The AAT erred in concluding that the Applicant’s offences properly fell within the category of offences contemplated by paragraph 15 of General Direction No 9, and in particular that the community would expect the Applicant to be deported.  In so doing the AAT exceeded its jurisdiction and/or committed jurisdictional error in one or more of the respects referred to in (1)(i) to (v) above.

    (11)The AAT erred in its consideration of the hardship that may be suffered by the applicant if he were deported and, in particular, in finding that the Applicant would not suffer material hardship.  In so doing the AAT exceeded its jurisdiction and/or committed jurisdictional error in the respects referred to in (1)(i) to (iii) above.

    (b)The errors referred to above are such as to be unprotected by the provisions of s 474 of the Migration Act 1958.

    (c)Further or in the alternative to (b), by reason of the matters referred to in (a) above, the AAT’s decision was not one made “under” the Migration Act for the purposes of s 474(2) of Act and was therefore not a “privative clause decision” for the purposes of s 474(1) of the Act.”

    Statutory Framework

  6. The provisions of the Migration Act relating to the deportation of non-citizens are to be found in Div 9 of Pt 2 of the Act (ss 200- 206). By s 200 the Minister is empowered to order the deportation of a non-citizen to whom Div 9 applies. Section 201 relevantly provides:

    “201.  Where:

    (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:

    .

    .

    .

    (ii)was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:

    (A)for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or

    (B)for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and

    (c)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 1 year;

    section 200 applies to the person.”

  7. At the time that Mr Bax made his application to the Administrative Appeals Tribunal, s 500 of the Act provided:

    “500(1)  Applications may be made to the Administrative Appeals Tribunal for review of:

    (a)decisions of the Minister under section 200 because of circumstances specified in section 201;

    .

    .

    .

    other than decisions to which a certificate under section 502 applies. 

    (2)  A person is not entitled to make an application under paragraph (1)(a) unless:

    (a)the person is an Australian citizen; or

    (b)the person is a lawful non-citizen whose continued presence in Australia is not subject to any limitation as to time imposed by law.”

  8. Since 2 October 2001 and by virtue of the Migration Legislation Amendment (Judicial Review) Act 2001, the principal jurisdiction of the Court to entertain applications for review of decisions under the Migration Act has been its general jurisdiction under s 39B of the Judiciary Act. The scope of the powers conferred by the Act and the construction of conditions affecting those powers are now affected by the operation of s 474 which was introduced by the amending legislation. Relevantly, that section provides:

    “474(1)  A privative clause decision:

    (a)is final and conclusive; and

    (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

    (c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

    (2)In this section:

    privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4 or (5).

    (3)   A reference in this section to a decision includes a reference to the following:

    .

    .

    .

    (i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act. 

    .

    .

    .

    (4)   For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:

    …”

    There is then set out a tables of decisions that are not privative clause decisions. None of these is relevant for present purposes. It can be seen that the provisions of s 474 apply, by virtue of s 474(3)(i), to decisions of the Administrative Appeals Tribunal on review under the Act albeit that such decisions may be taken under the Administrative Appeals Tribunal Act 1975 (Cth) rather than under the Migration Act  - Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 at 11-13.

  9. Reference should also be made to s 499 of the Act which provides, inter alia:

    “499(1)  The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a)the performance of those functions; or

    (b)the exercise of those powers.

    .

    .

    .

    (2)  Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

    (2A)  A person or body must comply with a direction under subsection (1).

    (3)  The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

    (4)  Subsection (1) does not limit subsection 496(1A).”

    Section 496(1A) subjects delegates of the Minister to his directions. 

    The General Direction – Criminal Deportation – No 9

  10. At the time the Minister made his decision there was in existence a general direction under s 499.  It was entitled “General Direction – Criminal Deportation – No 9”.  The Direction identified two primary considerations to be taken into account in making a decision whether or not to deport a non-citizen.  They were:

    “(a)the expectations of the Australian community; and

    (b)in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.”

    The Direction further noted that there would be other considerations relevant in individual cases, two of the most common being:

    “(a)the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and

    (b)the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation.”

  1. In elaboration of the first primary consideration relating to the expectations of the Australia community, it was said that there are two aspects to community expectations:

    “(a)the expectation that the community will be protected and not put at risk; and

    (b)the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.”

    The Direction identified the following factors as relevant to an assessment of the level of risk to the community and the need for its protection:

    “(a)the seriousness and nature of the crime;

    (b)the risk of recidivism; and

    (c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.”

  2. Examples of offences considered by the Government to be very serious included:

    “(e)murder, manslaughter, assault or any other form of violence against persons;

    .

    .

    .

    (l)any other crimes involving violence or the threat of violence:

    -Such crimes are of special concern to the welfare and safety of the Australian community.”

  3. Under the heading “The risk of recidivism” it was said to be the Government’s view that a person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism.  Decision-makers, it was said, should have due regard to the Government’s view in this respect.  The following factors were stated to be relevant to the assessment:

    “(a)the person commits a further offence after having been warned previously about the risk of deportation.  They should expect that the warning will be given sufficient weight in consideration of his or her case;

    (b)a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour.  In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;

    (c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.”

  4. Under the heading “OTHER CONSIDERATIONS”, referring to the degree of hardship suffered by the deportee, factors to be considered include:

    “(a)whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;

    (b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government’s intention that such people will never be deported.

    (c)the degree and extent of the potential deportee’s ties with the likely country of return;

    (d)the strength of other family, social or business ties in Australia;

    (e)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and

    (f)the situation in the country of proposed return……”

    The Tribunal’s Reasons for Decision

  5. The Tribunal began by recounting the history of events leading to the making of the deportation orders against Mr Bax.  It referred to the contention that, serious as the offences were, there was little risk of Mr Bax reoffending and that a proper exercise of discretion guided by principles set forth in the Minister’s General Direction should have resulted in Mr Bax being warned rather than deported.  The Tribunal referred to the Minister’s contention that, taking account of the seriousness and nature of the offences, the risk of recidivism, community expectation and the absence of significance hardship for Mr Bax or any dependents, the decision under review should be sustained. 

  6. The Tribunal considered Mr Bax’s criminal history in New Zealand and in Australia.  He had admitted all the offences but gave evidence in which he attempted to explain most of them.  His description of their facts and circumstances was found often to be at variance with the legal ingredients of the offences.  In many instances the explanations he gave suggested that the penalties imposed were adversely disproportionate to the nature and extent of his involvement.  He presented as a well-groomed, softly spoken individual, quite unlike the person conjured up by the New Zealand offence record and the detailed description of the two Australian assault charges given by the sentencing judge, Muller DCJ when sentencing him on 19 August 1999. 

  7. Reference was made then to the sentencing remarks in which the judge had described Mr Bax’s assault in March 1998 upon his former girlfriend and her male friend at her unit.  She had been kicked and punched and had fallen to the ground.  She got up and ran to a bathroom where she had tried to close the door. Mr Bax had forced the door open and again attacked her, kicking and punching her.  She had screamed continually until he left her in the bathroom and left the unit.  She suffered injuries including bruising to her head, forearm,  left leg and right ankle.  Mr Bax had also assaulted her male friend.  He had been struck on the face while asleep.  When he woke he had seen Mr Bax standing over him.  Mr Bax had raised his foot and brought it down in the area of the man’s left eye and cheek.  The force of the blow caused him to bleed from his mouth and nose. 

  8. The Tribunal said that Mr Bax’s presentation at the hearing and the supportive evidence of his four witnesses would lead easily to the conclusion that since his imprisonment in August 1999 he had become a changed man.  The Tribunal, however, was hesitant in reaching a conclusion because it thought that his credibility was “highly suspect”.  The Tribunal said:

    “It is plain that there has been a history of violent behaviour which I have little doubt has been fuelled by excessive consumption of liquor and it is also clear to me that the sanitised version of his offending history given by the applicant cannot be accepted.  On the basis of these considerations he is, prima facie, a clear candidate for deportation.”

  9. The Tribunal considered submissions that Mr Bax is now reformed, that he had undergone  an anger management program and had voluntarily sought counselling since his release.  It referred to claims that he had cut down on his alcohol consumption, had taken time to review his life and was remorseful for his past misconduct.  The Tribunal accepted that there were certain aspects of his behaviour since his conviction in August 1999 which suggested that he had achieved a new level of maturity and that his claims might be genuine.  He had spent a large part of his working life in the fishing industry and had spent long periods of time at sea.  As to this, the Tribunal said:

    “The history of his early life in New Zealand and later in Australia suggests a hard drinking knockabout individual.”

    He had had several relationships with women, none of which had been enduring, although some had been comparatively long term.  Prior to being taken into immigration detention he had been living in Perth as a single man without ties or dependants.

  10. The Tribunal referred to the witnesses called for Mr Bax, the first of whom was his parole officer.  He said that Mr Bax had met all of the goals of his management plan.  In the parole officer’s opinion, he suffered from depression but although he recommended counselling, Mr Bax had not acted on his advice.  The Tribunal observed:

    “This may be a significant factor in making an accurate assessment of the applicant whose presentation at the hearing was certainly consistent with the flat affect which is one of the hallmarks of chronic depression.”

    The parole officer expressed the opinion, based on his personal acquaintance with Mr Bax, that he was unlikely to reoffend.  However, he added that he appeared to have a short temper and if provoked would react rather than back down.  He suggested that violence could be the result if Mr Bax were the victim of theft or abused in a hotel.  While the parole officer was not a behavioural expert, the Tribunal recognised him as having a wealth of practical experience which required that his opinion be considered with respect. 

  11. A supervisor at the Perth Immigration Detention Centre gave evidence of his knowledge of Mr Bax as a detainee following the deportation order.  He had found him to be a likeable person who would sometimes become agitated but never aggressive.  Another   witness was a senior prison officer who had direct supervision of Mr Bax during nearly the whole of the time that he was at Canning Vale serving his sentence on the two assault convictions.  He described him as polite and as a model prisoner.  He had been sent to the East Perth Lockup towards the end of his sentence as a “trusty”.  He expressed his opinion that Mr Bax would not reoffend.  The final witness was a friend who had first met Mr Bax in 1994.  He described him as a trustworthy person. 

  12. The Tribunal said:

    “The evidence persuades me that despite the applicant’s past history he has developed some insight and maturity largely as a result of his imprisonment and his consequent self-examination.  Whether he will commit further violent offences will depend very much upon the nature of the relationship he is in or the aggression or provocation with which he may be confronted.  I think he has materially benefited from the anger management course and I think he genuinely wishes to avoid further trouble.  I think his compliant demeanour in the witness box was in part the product of chronic depression rather than a basic character transformation.  Although the risk of recidivism may not be high, it is by no means non-existent.”

  13. The Tribunal referred to the General Direction – Criminal Deportation – No 9.  It noted the primary considerations which include the expectations of the Australian community.  It noted that there are no children with whom Mr Bax is in a parental relationship.  Mr Bax had not contested the proposition that the two assault offences committed in March 1998 were very serious.  The Tribunal referred at length to the sentencing remarks of the trial judge and agreed with his assessment of the gravity of the crimes.  It then said:

    “In the context of this case these are important issues to consider and upon reflection I have concluded that despite the applicant’s apparent reformation, members of the Australian community would expect that the perpetrator of the 2 assaults occasioning bodily harm now in question would be deported.”

  14. The Tribunal found it impossible to conclude that Mr Bax would suffer material hardship if deported.  He had no ongoing marital or defacto relationship with an Australian citizen or resident.  He had social ties in Australia and no continuing ties in New Zealand.  However, he did not spend his formative years in Australia and if returned to his native land, would not have to adapt to a strange or foreign culture.  The Tribunal did not regard the potential hardship factor as having any substantial weight in the overall assessment.  There was no reason to anticipate that he would have difficulty making new friends in his country of origin.  Nor was there any reason to believe that such skills as he has in joinery, floor finishing and the like would be less in demand in New Zealand than in Australia.

    The Reviewability of the Tribunal’s Decision

  15. The available grounds for review of the Tribunal’s decision are affected by the introduction of the new s 474 into the Act. That section has recently been construed by a special sitting of five members of the Court as a Full Court on five appeals heard together in NAAV v Minister for Immigration & Multicultural & Indigenous  Affairs.`  Although applications have been filed seeking special leave to appeal to the High Court in three of the five matters decided in that case, I am bound, in the meantime, to apply the ratio of that decision as expressed in the judgment of von Doussa J, with whom Black CJ and Beaumont J substantially agreed.  Thus, provided that a decision to which the section applies does not exceed constitutional limits, is made bona fide, relates to the subject matter of the Act and is reasonably capable of reference to the power conferred by it and does not transgress any “inviolable limitation” imposed by the Act on the exercise of the power, the decision will be valid and protected from review.

    Alleged Jurisdictional Errors

  16. In the minute of further amended grounds of application, effectively the sole ground for review is that set out in par (a) which asserts jurisdictional error and provides some eleven paragraphs of particulars of such error. None of the particulars asserts that the Tribunal failed to act bona fide or that its decision did not relate to the subject matter of the Act or that it was not reasonably capable of reference to the power conferred by s 200. Rather the particulars rested entirely on the proposition that there were inviolable limitations which had been transgressed and which vitiated the exercise of the Tribunal’s decision-making power.

  17. The primary contention appeared to be that the Tribunal did not comply with General Direction No 9. It was submitted that compliance with that Direction was an essential pre-requisite to the exercise of the Tribunal’s jurisdiction. The Direction does not bind the Minister himself. The Tribunal in affirming his decision was exercising a power conferred upon it by s 43 of the Administrative Appeals Tribunal Act.  The power conferred upon the Minister under s 499 is a power to give directions “to a person or body having functions or powers under this Act …”.  The Administrative Appeals Tribunal’s powers arose under the Administrative Appeals Tribunal Act.  It was therefore not bound by the requirement of s 499 to comply with the Direction.   Nevertheless it is entitled to have regard to such directions as an expression of ministerial policy produced according to a process which is sanctioned by statute.  That much being said, compliance with the Direction does not condition the power of the Tribunal to exercise its functions under the Administrative Appeals Tribunal Act.  To the extent that the further amended grounds of review rely upon the contention that compliance with the Direction was an indispensable condition of the exercise by the Tribunal of its jurisdiction, those grounds cannot succeed.  Neither can the assertions in particular (1) that the Tribunal ignored or did not give effect to or did not take into account relevant material or relevant considerations, that it relied on irrelevant material, that it made an erroneous finding and/or reached a mistaken conclusion and that it did not exercise its power reasonably. 

  18. All of the preceding contentions rested upon the statement by the Tribunal that on the basis of Mr Bax’s criminal history as assessed by the Tribunal, he was “prima facie a clear candidate for deportation”.  There was nothing exceptionable about that observation.  It is to be remembered that the Tribunal is not a court.  It is an administrative decision-maker and its reasons for decision “… are not to be construed minutely and finely with an eye keenly attuned to the perception of error” – Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. It was saying no more than the obvious, that with a serious criminal history behind him, there is, absent any other considerations, a clear basis for deporting the applicant. To the extent that the submissions made on behalf of Mr Bax suggest that the observation by the Tribunal pre-empted its consideration of the matters contained in the General Direction – Criminal Deportation – No 9, it is not sustainable. Particulars (1), (2) and (3) of ground (a) advanced substantially the same criticism of that observation. None of these discloses a ground of review.

  19. The contention followed that the Tribunal assessed Mr Bax’s risk of recidivism without a proper application or consideration of General Direction No 9. For the reasons already set out, this does not disclose an excess of jurisdiction. The Tribunal was not bound by the provisions of General Direction No 9 and any failure to apply them does not give rise to vitiating error rendering the decision amenable to review notwithstanding s 474. In truth, it does not appear that the Tribunal regarded the risk of recidivism as particularly high. Its words were:

    “Although the risk of recidivism may not be high, it is by no means non-existent.”

    The risk of recidivism seems to have played very little part in the Tribunal’s decision.  Rather, it turned upon the Tribunal’s assessment that despite Mr Bax’s apparent reformation members of the Australian community would expect that as the perpetrator of the two assaults occasioning bodily harm which were in question, he would be deported. 

  20. The suggestion is made in particular (5) that the Tribunal, in assessing the risk of recidivism, considered Mr Bax’s positive demeanour in the witness box and presentation at the hearing to have been at least in part the product of chronic depression.  The Tribunal’s words were:

    “I think his compliant demeanour in the witness box was in part the product of chronic depression rather than a basic character transformation.”

    The Tribunal had had evidence from Mr Bax’s parole officer that he suffered from depression. It found Mr Bax’s presentation at the hearing to be consistent with the flat affect which is one of the hallmarks of chronic depression. It may be right to say that the Tribunal, absent medical expertise or expert evidence, was in no position to make that kind of judgment. But having said that much, is not to disclose an error which will vitiate the exercise of its power having regard to the operation of s 474 as construed in NAAV. 

  21. Then it is said that the Tribunal did not draw to the attention of Mr Bax’s counsel the way in which it intended to rely upon his client’s demeanour. This was said to have been a departure from the requirements of procedural fairness. It is questionable whether there was in fact a breach of procedural fairness in this regard. After all, depression had been the subject of an express, albeit unqualified, opinion from the parole officer. In any event, again having regard to s 474 as construed in NAAV, breach of procedural fairness does not give rise of itself to a ground of review supporting the relief sought. 

  22. For the preceding reasons, particulars (4) to (6) inclusive of the particulars of review will not support the grant of any relief.

  23. Particular (7) asserts that the Tribunal assessed or purported to assess the risk of recidivism without a proper consideration of relevant evidence and material. Counsel for Mr Bax in his submissions on this point attacked the evidentiary basis of the Tribunal’s conclusions about recidivism. He asserted that all relevant considerations pointed to Mr Bax having become rehabilitated and there being no real risk of reoffending. Detailed reference was made in the submissions to the evidence of the various witnesses on this point. In the approach it had taken, the Tribunal was said to have asked itself wrong questions, relied upon inadmissible evidence and to have ignored or not given effect to relevant material, relied on irrelevant material and to have based conclusions on matters which were not the subject of appropriate evidence. None of these matters gives rise of itself to a ground of review, having regard to the operation of s 474.

  24. The remaining particulars made similar kinds of criticisms of the Tribunal’s assessment of the seriousness of the offences committed by Mr Bax and of the hardship that might be suffered by him if he were deported.  None of the matters advanced in relation to these grounds again fell within any of the exceptions to the privative clause as enunciated in NAAV. 

    Conclusion

  1. As appears from the preceding, there is no viable ground for the grant of the relief sought in this application.  The application must be dismissed with costs.

I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Acting Associate:

Dated:            18 September 2002

Counsel for the Applicant: Mr A Karstaedt
Solicitor for the Applicant: M Rothstein & Co
Counsel for the Respondent: Mr P Macliver
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 1 May 2002
Date of Judgment: 18 September 2002
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