Brown, T.D. v Minister for Immigration & Ethnic Affairs

[1994] FCA 165

16s ,9y

JUDGMENT NO. ...s...... .a rr -

IN THE FEDERAL COURT OF AUSTRALIA	) )
AUSTRALIAN CAPITAL TERRITORY	)
1 No. ACT G 75 of 1993
DISTRICT REGISTRY	) )
GENERAL DIVISION	)

BETWEEN: TUNISIA DIANNE BROWN

Applicant

AND: MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER :	Neaves J.	RECEIVED
DATE OF ORDER	8 April 1994	12 APR 1994
WHERE MADE	Canberra	PRINCIPAL
REQISTRY
THE COURT ORDERS THAT:

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

1.    The application be dismissed.

2.   The applicant pay the respondent's costs of the application.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
AUSTRALIAN CAPITAL TERRITORY	1
1 No. ACT G 75 of 1993
DISTRICT REGISTRY	)
)
GENERAL DIVISION	j

BETWEEN: TUNISIA DIANNE BROWN

Applicant

AND: MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

=AM:  Neaves J.

DATE: 8 April 1994

REASONS FOR JUDGMENT

Tunisia Dianne Brown ("the applicant") has applied to the Court by way of appeal pursuant to s.138 of the Migration Act 1958 (Cth) ("the Act") from the decision of the	Immigration Review Tribunal ("the Tribunal") given on 2 July	1993 affirming the decislon of a delegate of the Minlster for
Immigration, Local Government and Ethnlc Affairs ("the Minister") given on 29 June 1992 refuslng to grant to the applicant's husband, Alfred Charles Brown, a temporary entry permit described as a December 1989 (temporary) entry permit. It is common ground that Mr Brown was, at all material times prior to 19 December 1989, a prohibited non-citizen and has, on and from that date, been an illegal entrant.
Mrs Brown is the applicant in this Court by reason of the operation of s.138(2) of the Act and reg.21C of the Migration (Review) Regulations made thereunder. Section 138(2) provides that an appeal to the Court from a decision of the Tribunal may be instituted by the applicant for review by the Tribunal or by the Minister. Regulation 21C provides that no person other than an Australian citizen or Australian permanent resident who nominated an applicant in relation to an application for a December 1989 (temporary) entry permit may apply to the Tribunal for a review of a decision to refuse that application. Mrs Brown is an Australian citizen and it was she who nominated Mr Brown in relation to the application for a December 1989 (temporary) entry permit and subsequently applied to the Tribunal for a revlew of the decision to refuse the application.
The application for the issue of the temporary entry permit was lodged with the Department of Immigration, Local
Government and Ethnic Affairs on 25 May 1992. ~nde; the Act and the Migration Regulations made thereunder ("the
Regulations"), in the form in which the Act and the Regulations then stood, one of the classes of entry permits that might be granted was that specified in Item No. 59A in Schedule 3 to the Regulations, that class being described as "December (1989) temporary" (see the Act, s.33(2)(a) and the Regulations, reg.21 and Schedule 3). That class of entry permit was given the code number 440.
The Act provided (s.34(3)) that, where it appeared to the Minister that an applicant was, under the Regulations, entitled to be granted an entry permit of a particular class, the Minister was, subject to Division 3 of Part 2 of the Act, to grant the applicant such an entry permit. Regulation 42(1) of the Regulations provided that, subject to ss.40 and 45 of the Act, which are not relevant for present purposes, a person was entitled to be granted an entry permit referred to in the Regulations if the person satisfied the prescribed criteria in relation to that entry permit. Prescribed criteria in relation to a December 1989 (temporary) entry permit were to be found in regs 42(1B) and 131A and In those provisions in Schedule 1 to the Regulations identified by the letters "D" and "E" and the letter and figure "H'".
Before proceeding further, it is to be noted that the Regulations as in force when the application was lodged and when a decision thereon was taken by the delegate of the

Minister were repealed with effect from 1 ~ebruar~' 1993 by

reg.8.1 of the Migration (1993) Regulations. Regulation 8.2 of those Regulations, however, provides that, notwithstanding the repeal effected by reg.8.1, the Regulations previously in force continue to apply, inter alia, to an application for an entry permit made before 1 February 1993 and to proceedmgs for review of a decision in relation to such an application.

As the Tribunal was satisfled that the applicant met the criteria prescribed by regs 42(1B) and 131A of the Regulations, it is unnecessary to set out the provisions of those Regulations.

The criterion referred to by the letter "D" appearing in Item No. 59A in Schedule 3 to the Regulations was that the applicant meet relevant public lnterest criteria. The expression "public interest criteria" was deflned in reg. 2 (1) . For present purposes, it is sufficient to refer to the requirement that the person be of good character. Regulation 4(l)(a)(ii)(A) provided, inter alia, that, for the purposes of the Regulations, a person was to be taken not to be of good character if, in the case of an applicant for an entry permit of any class, the applicant had at any time been convicted of a crime and sentenced to imprisonment for a period of not less than one year.

The material before the Tribunal established

conclusively that the applicant had been convicted of a crime

one year. The fact is that on 11 February 1987 the applicant	and sentenced to imprisonment for a period of not less than
was convicted on a charge of murder and sentenced to imprisonment for 14 years wlth a non-parole period of 8 years,
a sentence which, on appeal to a Full Court of this Court
(reported (1987) 78 ALR 368), was increased to 16 years with a non-parole period of 10 years. He was released on parole on 21 January 1993.

Regulation 143 of the Regulations relevantly "Notwithstanding any other provision of these Regulations, the Minister may grant . . . an entry permit to an applicant who fails to satisfy public interest criteria only because the applicant is to be taken not to be of good character, if:

provided:

(a) the Minister is satisfied that:

(i) ... ; or

(ii) in the case of conduct referred to in subparagraph 4(a)(ii) ... - the applicant has shown by subsequent conduct that he or she is reformed; and

(b)	the Minister is satisfied that undue harm would be unlikely to result to the Australian community if the . . . entry permit was granted; and
(C)	. . . "

The reference to subparagraph 4(a)(ii) is an incorrect reference. The reference should be to subparagraph

4 ( l) (a) (ii) . -

After referring generally to Mr Brown's history and

his convictions for criminal offences in New Zealand and this country, to the relevant legislation and to the material before it, the Tribunal, in its reasons for decision, found that the criteria for the grant of a December 1989 (temporary) entry permit were met, save for the health and public interest criteria. The Tribunal further found that Mr Brown failed the public interest criteria as a person conv~cted of a crime and sentenced to imprisonment for a period of not less than one

year. In the light of that findlng, the Trlbunal did not
further consider whether Mr Brown met the health criteria.

The Tribunal ldentlfied the issue for its determination as being "whether the good character requirement should be waived pursuant to regulatlon 143". Thls, as the Tribunal recognised, was a paraphrase of the provlslons of that regulatlon. What the regulation required, in order that the entry permit applied for might be granted, was that the Tribunal be satisfied that Mr Brown had shown, by subsequent conduct, that he was reformed and be further satisfied that undue harm would be unlikely to result to the Australian community if the entry permit was granted.

The Tribunal's reasons for decision continue:

"Mr Brown has a history of criminal behaviour, although

most of his convictions are for minor offences. However, his conviction for murder in 1987 cannot be characterised as an exceptional error in an otherwise blameless life.

brutal murder. Mr Brown now claims that he did not	The records show that he was convicted of a particularly
commit the actual murder but that he assisted after the offence, although he chose not to reveal this to the police or the Court at the time. At the very least, this demonstrates a disturbing disregard for the law consistent with his earller history and an equally disturbing lack of concern for the interests of the victim and the victim's famlly. In any event, hls solicitors accept that the Tribunal cannot go behind the
conviction.
Mr Brown is now claimed to be reformed. His oral
evidence is that he reallses what he put his family through and that he would not be so 'stupid' again. He is understandably very concerned about what would happen to him if he is deported to England, where he knows nobody. His llmited education and lack of other resources mean that he would have difficulty supporting himself there. The evldence 1s that hls family would not accompany him. On the other hand, he believes that he would have little difficulty gaining work as a painter here and asserts that he 1s reformed and will not reoffend in Australia.
In support of his claim is hls excellent prison record, which includes a commendation for 'assisting to quell a potential riotous situation'. The good record lead [sic] to parole after 6 years imprisonment. MS Hancock of ACT Correctional Services reports that he initially presented as hostile but has since shown a more positive attitude to supervision and has abided by the conditions of his parole order. Her opinion is that he has the ability to
lead a normal lifestyle ...
The Tribunal sought from Mr Brown his feelings about the man who was killed. He replled that he did not think about him as he did not kill him. He also gave evidence that he did not seek any counselling whllst in prison and this is consistent with information in his Parole Report from the NSW Department of Correctional Services, which states that he has not sought any professional assistance."

After discussing the principles to be applied in determining those matters, the Tribunal said:

"Mr Brown's capacity to prove that he has reformed is

inhibited by the fact that he has only recently been released from prison. While we give some weight to his good prison record over 6 years, this cannot have the

environment. He has been on parole for only a few months	same significance as good behaviour in a less supervised
and, while the report of MS Hancock is generally positive, it is not unqualifiedly so. We refer here to his being initially hostile and resistant to supervision.
Mr Brown's assertion that he dld not commit the murder, perhaps ironically, also makes it more difficult to show that he is reformed. Mr Brown has expressed regret at his conviction and imprisonment because of the devastating effect on hls own life and that of his family. He has shown no concern before the Tribunal or, as far as can be determined, elsewhere, for the victim or the victim's family. Even lf his own version of events is correct and his role was restricted to aiding the murderer, his apparent lack of remorse for the violent death of the victim leaves the Trlbunal with insufficient evidence to substantiate Mr Brown's clalm that he is
re£ ormed.
The task of the Tribunal would appear to be to balance its assessment of the harm that is likely to result from the granting of the entry permit against the compassionate considerations favouring the grant. The latter include the very serious loss to his family of the presence of a loving husband and father and the on-going concern his absence in a strange country might cause them. They also include the very difficult living circumstances Mr Brown would find himself in should he be required to return to England. Against this must be weighed the potential risk to the Australian community should Mr Brown re-offend.
In summary, Mr Brown has a history of criminal, including violent, behaviour, albeit mostly of a relatively minor nature. He has been convicted of a brutal murder. He now says he will not re-offend because to do so would further damage his own life and that of his family. His wife and other family members concur with his assessment. These statements are inevitably self-serving. While it may be that Mr Brown intends to lead a blameless life, there is limited objective evidence before the Tribunal to allow it to conclude that he has reformed and that undue harm is unlikely to result to the Australian community if he is allowed to stay in Australia. The evidence in his favour is a good prison record and compliance with his parole conditions since his release earlier this year.
Taking all of the evidence into account, the Tribunal is unable to find on the balance of probabilities that the
good character criteria should be waived. In taking t h ~ s
decision, we are mindful of the severe effect this decision may have on Mrs Brown and her family, as well as on Mr Brown himself. However the Tribunal is unable lawfully to make any other decision."

The decision under review that Mr Brown not be granted a

December 1989 (temporary) entry permlt was affirmed.

It is difficult, as counsel for the respondent submitted, to identify in the Tribunal's dec~sion and its reasons a question of law that will sustain the application to this Court. The supplementary notice of appeal filed on behalf of the applicant asserts that three questions of law are raised on the appeal. One of those was not relled upon at the hearing. The remaining two are expressed in the following terms :

"(a) The Tribunal made findings of fact that were so unreasonable, perverse or arbitrary that no reasonable person would have made those findings.

(b) The evidence is not reasonably capable of sustaining the decision."

The grounds relied upon in support of the applicant's case are stated in the supplementary notice of appeal as follows:

"4. Grounds:

The Tribunal gave insufficient weight to the objective evidence that Alfred Charles Brown had shown by subsequent conduct that he was reformed.

4.1 The Tribunal placed too much emphasis on Alfred Charles Brown's apparent lack of remorse on the murder offence without taking into account at all other matters going to the question of Alfred Charles Brown's reform.

4.2 The Tribunal accepted portions of the report of the

ACT Community Corrections Officer (Rosina Hancock

dated 12th of May 1993) without referrlng to or	giving any weight at all to other sections of that
report. "

What is asserted in the supplementary notice of appeal as the first of the two questions of law appears to have its genesis in what is often referred to as Wednesbury unreasonableness. The question is, however, not correctly stated. To succeed in having an administrative decision set aside on that ground it must be established that the decision is so unreasonable that no reasonable person could have made it. It is not sufficient merely to show that a finding of

fact made by the decision-maker is so unreasonable that no reasonable person could have made it. That 1s not to say, however, that an examination of the findlngs of fact made by the decision-maker may not form an important element in the review process. Ultimately, however, the question must concern the unreasonableness of the decision itself.

In the present case, the essence of the decision made by the Tribunal was its lack of satisfaction that Mr Brown had, in terms of reg.l43(a)(ii), shown by his subsequent conduct, that is to say conduct after the commission of the criminal offence of which he was convicted, that he was reformed. To assert that the Tribunal's lack of satisfaction was unreasonable in the relevant sense is to essay the task of establishing, in effect, that, on the material before it, the Tribunal could have reached no other conclusion than that it was satisfied that Mr Brown had shown that he was reformed. The burden of establishing that proposition is a very heavy one and, in my opinion, it has not been discharged.

What is asserted in the supplementary notice of appeal as the second question of law ralsed on the appeal does not, in truth, state a question of law. During the course of the hearing, counsel for the applicant conceded that it was necessary to show that there was no evidence before the Tribunal which would sustaln its decision. The present case, however, presents a curious situation. How can the applicant succeed in setting aside the decislon of the Tribunal on the basis that there was no evidence before the Tribunal to sustain it when it was the very lack of that evidence which formed the foundation of the Tribunal's decision?

Counsel for the applicant referred particularly to what the Tribunal said as to Mr Brown's lack of remorse in relation to the crime of which he was convicted. Counsel referred to the remarks of the sentencing judge, a transcript of which was included in the material that was before the Tribunal. He pointed out that those remarks were clearly the source of the Tribunal's statement that the crime of whlch Mr Brown had been convicted was "a particularly brutal murder". The sentencing judge said:

"Now ... I think consistent with the jury's verdict of murder and the issues that were raised and put by me to them, the jury by its verdict have indicated that they were necessarily satisfled beyond any reasonable doubt that at the time the accused, Brown, struck the blows to Burgess he did not believe that he was dead. As I indicated in the course of submissions, I am of the clear view that the full story has not been told, nor has the full basis of why what happened been revealed. The blows	that were delivered, lt must be said, manifest a savagery	and a ferocity to suggest that what was done was done in
a kind of wild frenzy and with death the inevitable result of those blows. But, as I have indicated, the apparent lack of motive is a matter that seriously troubles me."

Counsel was critlcal of the Tribunal for not referring to the passage in the sentencing judge's remarks immediately

following the passage quoted. In that paragraph the judge "It is for the reason that there is absent a demonstrated selfish motive which frequently is the case in murder trials, where the death is done for some sort of personal gain or for some sort of personal retribution or revenge, and because there is no demonstrated selfish motive of that kind, that I do not regard this as the worst case of murder that one could imagine, and I do not proceed to my sentencing function on the basls that it is of that

kind. "

It is not apparent to me how Mr Brown's case would have been advanced by the Tribunal giving particular consideration to that paragraph of the sentencing judge's remarks.

Counsel submitted that the Tribunal's conclusion that there was an apparent lack of remorse on Mr Brown's part was based on the answers which Mr Brown gave to questions asked of him by the Tribunal -

"Q. What about the young man who got killed what do you think about him now?

A. Well I try not to. I just sort of think in a way you know it's all passed it's gone.
Q.	... But what about this young man, he's dead, and

his family you don't think about that at all?

A. No because I didn't kill him."

Counsel submitted that Mr Brown's answers were to be read in the context of the assertion he had made since he was convicted - though, it may be noted, not an assertion that he made at the trial - that he did not commit the murder but only assisted in moving the body and the further circumstance that he had, subsequent to his conviction, made further statements

to the police pertaining to the murder. Although the evidence before the Tribunal was that police enquiries had failed to corroborate Mr Brown's assertions, counsel submitted that, considered in its context, "the lack of remorse for a person in Mr Brown's position, having adopted this course of action, is a perfectly reasonable corollary from what he said in his evidence". It was submitted that there was no plausible explanation for the conclusion that the Tribunal reached. On the contrary, so it was said, the evidence showed some remorse on Mr Brown's part.

In my opinion, the matters relied upon by counsel for the applicant provide no sufficient basis for intervention by this Court. The Tribunal clearly took into account the favourable reports concerning Mr Brown's conduct while in prison. A consideration of the transcript of the proceedings before the Tribunal and of its reasons for decision lead me to

on Mr Brown's part as a factor which, with the other matters

think that the Tribunal was searching for evidence of remorse

to which the Tribunal referred, might have led it to a different conclusion from that it in fact reached. The Tribunal had the benefit not only of the reports made concerning his conduct but also of observing him giving evidence. It is not open to the Court to substitute its view for that reached by the Tribunal. I am unable to agree that it was unreasonable for the Tribunal to fail to be satisfled, on the material before it, that Mr Brown had shown remorse for

the crime of which he had been convicted or to be satisfled that he had shown, by subsequent conduct, that he was reformed.

I should add that I am unable to accept the further submission by counsel for the applicant that the Trlbunal failed to give due consideration to the whole of the report of MS Rosina Hancock dated 12 May 1993.

In my opinion, the applicant has failed to establish any ground upon which the Court should set aside the declsion of the Tribunal. It follows that, if Mr Brown is to avoid the consequences of the Tribunal's decision, he must persuade the respondent to reconsider the application for a December 1989 (temporary) entry permit. The justification for such a reconsideration may be found in the circumstance adverted to by the Tribunal that, as Mr Brown had been released from prison only two months before the matter came on for hearing

before it, there had been a very limited opportunity to assess	his conduct outside the prison environment, a vital element in
reaching satisfaction, in terms of s.l43(a)(ii) of the Regulations, that Mr Brown had shown by subsequent conduct that he was reformed. An examlnatlon of Mr Brown's conduct during the time that has now elapsed since hls release from prison on parole might well provide a more satisfactory basis for determining whether the good character requirement should be waived. That is, however, a matter for the respondent.
In the result, the application is dismissed. The applicant must pay the respondent's costs of the application.

I certify that this and the preceding 14 pages are a

true copy of the Reasons for Judgment hereln of the Honourable Mr Justice Neaves .

Associate

Dated: 8 April 1994

Counsel for the applicant : Mr R. Mildren

Solicitors for the applicant : Legal Aid Office (ACT)

Counsel for the respondent : Mrs J. Bonsey

Solicitor for the respondent : Australian Government' Solicitor

Date of hearing	: 20 September 1993
Date of judgment	: 8 April 1994