Bustescu v Minister for Immigration and Multicultural Affairs
[1999] FCA 1713
•10 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713
MIGRATION – Deportation – Ministerial Direction – Whether Direction fettered decision-maker’s discretion – Whether Administrative Appeals Tribunal (“AAT”) misapplied Direction – Whether AAT made findings on material questions of fact.
D Pearce and S Argument, Delegated Legislation in Australia (2nd ed 1999).
Migration Act 1958 (Cth), ss 200, 201, 253(1), 253(2), 253(8), 499, 500(1)(a).
Administrative Appeals Tribunal Act 1975 (Cth), ss 41(1), 43(2B), 44.Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1, cited.
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, distinguished.
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, considered.
Howells v Nagrad Nominees Pty Ltd (1982) 43 ALR 283, cited.
NCA (Brisbane) Pty Ltd v Simpson (1986) 13 FCR 207, cited.
Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, followed.East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457, considered.
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, followed.Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited.
DAN IONEL BUSTESCU V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1100 OF 1999
JUDGE: SACKVILLE J
DATE: 10 DECEMBER 1999PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1100 OF 1999
BETWEEN:
DAN IONEL BUSTESCU
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
SACKVILLE J
DATE OF ORDER:
10 DECEMBER 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The decision of the Administrative Appeals Tribunal (“AAT”) made on 1 September 1999 be set aside.
2. The matter be remitted to the AAT, differently constituted, to be determined according to law.
3. The respondent pay the applicant’s costs of the proceedings.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1100 OF 1999
BETWEEN:
DAN IONEL BUSTESCU
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
SACKVILLE J
DATE:
10 DECEMBER 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Proceedings
This is an appeal on a question of law from a decision of the Administrative Appeals Tribunal (“AAT”), made on 1 September 1999. The AAT affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the “Minister”), made pursuant to s 200 of the Migration Act 1958 (Cth) (“Migration Act”) to deport the applicant from Australia. The applicant, who is a Romanian citizen from a Gypsy family, is presently serving a sentence of imprisonment, having been convicted of a serious criminal offence.
The “appeal” is brought in the original jurisdiction of the Court, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). The applicant has raised three questions of law, although, as Mr Game SC (who appeared on behalf of the applicant) acknowledged, they overlap. The three questions can be summarised as follows:
(i)Did the AAT err by failing, contrary to s 43(2B) of the AAT Act, to make findings on material questions of fact, specifically on the extent of hardship the applicant would experience if deported to Romania, his country of nationality?
(ii)Did the AAT misconstrue or fail to apply “General Direction – Criminal Deportation – No 9” (the “Direction”) issued by the Minister on 21 December 1998 pursuant to s 499(1) of the Migration Act?
(iii)Is the Direction, or any part thereof, invalid?
For reasons that appear in this judgment, I propose to make orders setting aside the decision of the AAT and remitting the matter for consideration according to law. It is important to appreciate that the function of this Court on an appeal under s 44(1) of the AAT Act is not to consider the merits of the question before the AAT, namely whether the deportation order made by the delegate should be affirmed. I am concerned only with whether the AAT has acted beyond the limits of the power conferred on it: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1, at 36, per Brennan J. In my view, it has.
The AAT will need to reconsider the merits of the case consistently with the powers conferred on it and the terms of the Direction. I express no view on the outcome of that reconsideration, beyond noting that there is nothing in this judgment that would preclude the AAT, should it consider it appropriate to do so, affirming the delegate’s decision. That is a question entirely for the AAT. I note, too, that if the applicant is released from prison pending the reconsideration of his case by the AAT, there is power to keep him in immigration detention until the reconsideration is complete: Migration Act, s 253(1), (2), (8); AAT Act, s 41(1).
The Legislation
Migration Act
Sections 200 and 201 of the Migration Act provide as follows:
“200. The Minister may order the deportation of a non-citizen to whom this Division applies.
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:
(i)had been in Australia as a permanent resident:
(A)for a period of less than 10 years; or
(B)for periods that, when added together, total less than 10 years; or
(ii)...; and
(c)the offence is an offence for which the person was sentenced… to imprisonment… for a period of not less than one year;
section 200 applies to the person.”
There is no dispute in this case that the applicant satisfied the terms of s 201 of the Migration Act and that, accordingly, the Minister’s power in s 200 was enlivened. Section 500(1)(a) of the Migration Act provides that applications may be made to the AAT for review of decisions of the Minister under s 200 because of circumstances specified in s 201.
Section 499 of the Migration Act empowers the Minister to give written directions. It provides as follows:
“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.(1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.
(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) …”.
AAT Act
Section 43 of the AAT Act provides for review of decisions. Subsection 43(2B) states:
“(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”
Background
The applicant was born in Romania on 24 March 1974. His family is of Gypsy or “Roma” (the term more commonly used in Europe) origin. He was raised in Romania largely by his grandmother, as his mother worked full-time. The applicant’s father emigrated to Australia in the late 1970s, but did not arrange for the applicant’s family to join him until 1987.
The applicant arrived in Australia on 22 March 1987 when he was almost thirteen, accompanied by his mother and three brothers. The applicant’s family was sponsored by his father. The day after they reached Australia, the applicant’s father deserted them and has had virtually no contact with them since that time.
The applicant commenced school in Australia on his arrival, but left after completing year 9. After leaving school, he held a few short-term unskilled jobs. The applicant has remained in Australia since his arrival in 1987.
The applicant was first charged with a criminal offence in November 1988, when he was aged fourteen years. A charge of goods in custody was found proven by the Camden Children’s Court. The applicant was placed on a recognisance to be of good behaviour for a period of six months, without a conviction being recorded. Since that time, the applicant has acquired what the AAT described as an “extensive criminal record”.
The first offence committed by the applicant which rendered him liable to be considered for deportation in terms of ss 200 and 201 of the Migration Act (then s 55 of the Migration Act) was that of robbery while being armed in company. The offence was committed on 4 May 1992. On 8 October 1992, Judge Conomos of the Wollongong District Court sentenced him to a minimum term of twelve months imprisonment, with an additional term of eighteen months.
In consequence of this conviction and sentence, the applicant was considered for deportation by a delegate of the Minister. A detailed report, dated 8 April 1993, was prepared by officers of the Department of Immigration and Multicultural Affairs (“the Department”) recommending against deportation. The report noted that the factors in favour of deportation included the applicant’s several criminal convictions; his modest work record; the seriousness of the crime which rendered him liable to deportation; and the fact that there was a moderate risk of recidivism. The factors weighing against deportation included the applicant’s strong family ties in Australia; the lack of any family in Romania; and the fact that he had no adult experience of that country. The report also expressed the view that the applicant would suffer both emotional and economic hardship if he were to be deported. The report concluded that the applicant’s young age and his potential for growth in maturity caused the “balance to fall in his favour”. Accordingly, the report recommended against the applicant’s deportation.
The Minister’s delegate accepted this recommendation. On 13 May 1993, the applicant was served with a written confirmation of an oral warning administered to him in relation to his conviction for robbery while being armed in company. The document included the following passage:
“The delegate of the Minister for Immigration, Local Government and Ethnic Affairs has decided on this occasion not to order your deportation from Australia on the basis of your conviction. Nevertheless you are warned that any further conviction will lead to the question of your deportation being reconsidered by the Minister or his delegate.
Disregard of this warning will weigh heavily against you if the Minister or his delegate reconsiders your case.”
The applicant was released from prison on parole on 4 May 1993. On 23 August 1994, the applicant, while still on parole, committed a further offence which again rendered him liable to be considered for deportation. The offence, committed with a co-offender, was that of armed robbery in circumstances amounting to what is commonly called a home invasion.
The applicant pleaded guilty to the charge and, on 5 September 1995, Judge Nield of the District Court at Liverpool sentenced him to a total of seven and a half years imprisonment, consisting of a minimum term of five years and an additional term of two and a half years. The applicant subsequently appealed against the severity of this sentence. On 20 December 1996, the New South Wales Court of Criminal Appeal quashed the sentence, and in lieu thereof imposed a minimum term of imprisonment of four years, with an additional term of two years.
Following this conviction, the applicant was again considered for deportation and a further report was prepared by the Department. This report identified several factors in favour of deportation. These included the clear warning that the applicant had ignored; the negligible contribution made by him to the Australian community; and the moderate to high risk of recidivism evidenced by the escalation in the gravity of his criminal conduct over the years. The factors against deportation included his very strong family ties in Australia, especially with his grandmother and fiancee; the emotional hardship that deportation would cause to all members of his family, particularly his grandmother; and the hardship that the applicant would suffer if he were returned to Romania, a country in which he had not resided since the age of twelve and with which he was not familiar. The report summarised the position as follows:
“The hardship that would be imposed on [the applicant], his family and his girlfriend is a significant factor in this case and it should be afforded considerable weight. However, it is considered that [the applicant] still poses a threat to the community as his criminal behaviour has shown no signs of abating. He has been given chances to get his life in order but has consistently failed to do so. The fact that he committed a further serious deportable offence within 15 months of receiving a warning weighs heavily against him. It is primarily for the overall benefit of the community that deportation is recommended notwithstanding the hardship that would be imposed on [the applicant], his family and girlfriend.”
On 24 August 1998, the Minister’s delegate ordered the applicant’s deportation. The delegate noted that the crime was very serious and had been committed after a warning. The delegate stated that the applicant’s strong family support did not outweigh the factors in favour of deportation.
On 18 September 1998, the applicant lodged an application for review of this decision with the AAT pursuant to s 500(1)(a) of the Migration Act.
The Direction
The AAT approached the application for review on the basis that it was bound as a matter of law to give “significant weight” to the Direction issued by the Minister on 21 December 1998. As already noted, the Direction was issued pursuant to s 499(1) of the Migration Act. It superseded a document known as the “Criminal Deportation Policy” which had come into effect on 24 December 1992. Unlike Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238 (FC), where the Minister failed to draw the attention of the AAT to the Direction, there is no dispute in the present case that the AAT had been notified of the terms of the Direction.
The preamble to the Direction states that it “provides guidance to decision-makers in considering the making of deportation decisions under [ss 200 and 201] of the Migration Act”. Paragraph 4 identifies the purpose of deporting a person from Australia as being
“to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to remain in the community.”
Paragraphs 5 to 10 of the Direction are as follows:
“PRIMARY CONSIDERATIONS
5. The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a potential deportee. In making such a decision, a decision maker should have regard to two primary considerations and a number of other considerations. The primary considerations are set out at paragraph six (6), and two other common considerations are set out in paragraph seven (7). A decision maker should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
6. In making a decision whether or not to deport a non-citizen, there are two primary considerations:
(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.
7. In addition, there will be other considerations that will be relevant in individual cases. Two of the most common are:
(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.
COMMUNITY EXPECTATIONS
8. It is the Government’s view that the expectations of the Australian community are a primary consideration in determining whether a potential deportee should be deported. Decision makers should have due regard to the Government’s view in this respect. 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.
PROTECTION OF THE AUSTRALIAN COMMUNITY
9. It is the Government’s view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime. In particular, it is the Government’s view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community…
10. It is the Government’s view that the following factors are 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;
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
Decision makers should have due regard to the Government’s view in this respect.”
Paragraph 11 identifies examples of serious offences, including armed robbery. Paragraph 12 states the Government’s view that the sentence imposed for a crime is an indication of the seriousness of the offender’s conduct.
The Direction continues:
“The risk of recidivism
13. It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. Decision makers should have due regard to the Government’s view in this respect. In particular the following factors will 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 significant 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….
(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.
…
OTHER CONSIDERATIONS
21. It is the Government’s view that in considering the issue of deportation other matters, although not primary considerations, will be relevant. It is appropriate that these matters be taken into account but given less weight than the primary considerations. These matters include:
(a)the degree of hardship which may be suffered by the potential deportee; and
(b)the degree of hardship to any Australian citizens or permanent residents, including the potential deportee’s family (other than children whose best interests are a primary consideration).
Decision makers should have due regard to the Government’s view in this respect.
The degree of hardship which may be suffered by the deportee
22.It is the Government’s view that factors to be considered here 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, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration.”
Paragraph 24 identifies the factors to be considered in assessing the degree of hardship to any Australian citizens or permanent residents, including the potential deportee’s family.
“24. It is the Government’s view that factors to be considered here include:
(a)the effect deportation would have on any marital or de facto partner, including whether he or she would leave Australia with the deportee and whether this would impose undue hardship on the non-deportee partner;
(b)the effect deportation would have on other family members, social ties and business associates and whether deportation would impose hardship on them;
(c)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
(d)the views (if any) of the victim or victims of the crimes committed by the potential deportee.
Decision makers should have due regard to the Government’s view in this respect.”
A section of the Direction addresses the relevance of Australia’s international obligations. Paragraph 25 states that decision-makers are to consider the international obligations contained in that section. Paragraphs 26 and 27 provide as follows:
“26. The International Convention [sic] on Civil and Political Rights (ICCPR) has an implicit non-refoulement obligation where as a necessary or foreseeable consequence of expulsion, the person would face a real risk of violation of his or her human rights, such as being subjected to torture or the death penalty (no matter whether lawfully imposed)…
27. The Convention Against Torture (CAT) has an explicit prohibition against expulsion ‘where there are substantial grounds for believing that the [the person] [sic] would be in danger of being subject to torture.’ The prohibition is absolute: there is no balancing of other factors if deportation would amount to refoulement within the meaning of the CAT…”.
Paragraph 28 directs that consideration be given to issues of protection pursuant to the Convention Relating to the Status of Refugees (“Refugees Convention”) when they are raised.
The AAT’s Reasons
After referring to the background circumstances and the Direction, the AAT addressed the evidence. It quoted from the account given by the Court of Criminal Appeal of the circumstances of the home invasion offence committed by the applicant in August 1994. The offence involved violence and was described by the Court as a “very serious breach of the criminal law”. The victims, a couple in their sixties, had been considerably affected by their ordeal and the effects were assessed by a psychiatrist to be likely to continue for many years. The AAT also quoted from the remarks made by Judge Comomos in October 1992, when sentencing the applicant for the offence of robbery in company. This offence, too, had involved the use of weapons in the course of a robbery of a pizza shop, although the applicant’s role was apparently limited to remaining in the getaway vehicle. The AAT found, in accordance with the Direction, that both crimes were viewed by the Government as being very serious.
The AAT then considered the risk of recidivism. It noted the warning given to the applicant which, on his own evidence, he did not treat seriously (see par 13(a) of the Direction). It observed that the applicant had committed a range of crimes and thus was to be considered to be a person with an increased risk of recidivism (par 13(b)). He had committed offences while in prison and had been refused parole because of the risk of reoffending and because he was thought to be in need of further drug and alcohol counselling (par 13(c)).
The AAT next considered the question of hardship to the applicant in the light of pars 21 and 22 of the Direction. It found that, although he had a current relationship with a woman who was prepared to marry him, that relationship commenced after the deportation order was made and was therefore to be given less weight (par 22(e)).
Reference was then made to the applicant’s family history and to his current relationship with members of his family, especially his grandmother. The AAT recounted the grandmother’s evidence that she was very close to her grandson and would be heart-broken if he were to be deported. It also recounted her evidence that Roma had long been discriminated against in Romania.
The AAT noted that it had received evidence from several sources regarding the treatment of Roma in Romania. The reasons quote from the evidence of Mr Mitin, the President of the Romanian Society for Literature, Arts and Charity. Mr Mitin made these claims in his statement (recorded in the AAT’s reasons):
“5.In recent times in Romania, the extremist national-chauvinism was reborn and targeted against the Gypsy population. They are beaten, their houses are burnt, they are chased away from their settlements, they are shot, they do not benefit from equal rights, they are persecuted and discriminated against.
6.Mr Bustescu has no place to go in Romania and no place to live. He is a Gypsy and he will not be helped by anyone. Amnesty International, just a few months ago, forwarded a written document to the Romanian Government, letting them know that they have the information about the persecution of Gypsy population and asking them to stop oppressive politics towards them.
Deporting Mr Bustescu to Romania may very well be contrary to the International Law of protection of Human Rights. We could not possibly believe that Australia wishes to deport him to Romania, where through Nazi-style persecutions, he would be terminated.”
Further expressions of support for the applicant had come from other witnesses. Although the AAT did not expressly refer to it, Reverend Vesa, from the Romanian Independent Orthodox Church, gave evidence that, depending on the situation, Roma were at risk of being killed in Romania because of what he described as “the mentality of the society”. The AAT made no comment at this point in its reasons on the significance of Mr Mitin’s evidence or that of the other witnesses called on behalf of the applicant.
Under the heading “INTERNATIONAL OBLIGATIONS” the AAT addressed the Minister’s contention that there was no evidence which required the AAT to consider any of the international obligations referred to in the Direction. According to the Minister’s submissions, the Refugees Convention was irrelevant because the applicant had never been a refugee. The Minister’s representative also contended that the evidence concerning the treatment of Roma in Romania went to the hardship that might be caused to the applicant through his deportation, but created neither a refugee issue nor a Convention-related issue under either the ICCPR or the CAT. The AAT recorded that the applicant’s representative (a migration agent) did not directly contest these submissions, but that she did contend that the AAT had many details in the independent sources of information, such as reports by the United States Department of State and Amnesty International, concerning discrimination against Roma in Romania.
The AAT’s reasons for affirming the deportation order (as distinct from its recounting of the evidence) were expressed briefly. It found, in par 54, that the applicant had failed to lead a law-abiding life in Australia or to contribute positively to Australian society. He had ignored the warning of his liability for deportation. During his most recent period of imprisonment his performance was “lacklustre” and there were few indications he was genuinely committed to changing his pattern of behaviour.
The AAT then expressed its conclusions as follows:
“55. The primary purpose of deportation is to meet the expectation of the Australian community that it will be protected against those non-citizens who represent a risk of committing further crime. In [the applicant’s] case the Tribunal must assess that risk, on the basis of all of the evidence that has been outlined, to be moderate to high. It is a risk which is unacceptable, given the gravity of [the applicant’s] offending and the impact of the crimes that he has already committed upon the lives of innocent Australian citizens. This Tribunal has voiced its condemnation, as has Parliament and society at large, of those who become involved in crimes of home invasion… Such crimes can have profound and long lasting consequences for their victims, as the evidence in this case illustrates. A strong deterrent message must continue to be sent to any non-citizens contemplating similar offences that, if caught and convicted, they can anticipate little sympathy for their plight and swift expulsion if they meet the criteria for deportation.
56. [The applicant] meets these criteria. While there will be undoubted hardship caused to both him and his family through his deportation to Romania, that is a factor that on balance is of far less significance than the need to protect Australian society against the likelihood of him continuing to commit crimes of this type. The particular discrimination and treatment that [the applicant] may encounter in Romania because of his Roma background is a troubling element of this case but it is not an issue which on the evidence before the Tribunal raises specific consideration of questions about any international obligations that Australia may have under either the ICCP or CAT to prevent his return to his country of birth.”
Construction of the Direction
As the preamble to the Direction states, it is designed to provide guidance to decision-makers faced with the onerous task of considering whether to order the deportation of an Australian resident. The difficulty created for decision-makers by the use of a Direction (apart from procedural breakdowns of the kind dealt with in Rokobatini) is that it can present its own questions of construction. The more detailed the attempt to “guide” the decision-maker’s exercise of discretion, the more likely it is that questions of this kind will arise.
As I have noted, the applicant contended that the Direction was invalid. That contention was founded on the proposition that the Direction, properly construed, prevents the decision-maker considering the merits of an individual case and was therefore inconsistent with s 200 of the Migration Act (see s 499(2)). According to Mr Game, the Direction has this effect because it provides that considerations other than primary considerations are to be “given less weight than the primary considerations” (par 21 of the Direction). It follows, so it was said, that where a decision-maker has to weigh a potential deportee’s serious criminal record and the consequent expectation that he or she will be removed from Australia (a primary consideration) against hardship to that person (a non-primary consideration), the latter must yield to the former.
Mr Johnson, on behalf of the Minister, recognised the dangers inherent in such a construction of the Direction, in particular the risk that the Direction would be invalid. He was influenced, correctly, by the well-known remarks of Brennan J in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 640-641:
“Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute… The Minister must decide each of the cases under ss 12 and 13 [the power to order deportation] on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative….
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which crates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power.”
See also Howells v Nagrad Nominees Pty Ltd (1982) 43 ALR 283 (FC), at 307, per Fox and Franki JJ; NCA (Brisbane) Pty Ltd v Simpson (1986) 13 FCR 207 (FC), at 247-248, per Burchett J.
Mr Johnson submitted that, properly construed, the Direction is not intended to preclude the AAT from considering the particular circumstances of each case, including the degree of hardship likely to be suffered by the potential deportee or members of his or her family. It is therefore open to the decision-maker to find, depending on the circumstances of the case, that the likely hardship outweighs the “primary consideration” of the expectations of the Australian community (par 6(a)). And this may be so even if the potential deportee has committed very serious offences.
In my opinion, this approach to the construction of the Direction is correct. If the Direction were intended to have the rigid operation attributed to it by Mr Game, there would be little point in the express recognition in par 5 that the decision-maker should adopt a balancing process that takes into account all relevant considerations, not merely the two primary considerations. Similarly, there would be little point in the acknowledgment in par 21 that it is relevant to consider the degree of hardship which may be suffered by the potential deportee or member of his or her family. As par 22(b) implicitly recognises, even potential deportees who have committed serious criminal offences may escape deportation if, for example, they have spent the greater proportion of their formative years in Australia. Moreover, there is a well-established principle that if an instrument can be construed so as to avoid being held ultra vires, that interpretation should be adopted: D Pearce and S Argument, Delegated Legislation in Australia (2nd ed 1999), par 30.4; see also Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, at [20].
It follows that, despite some ambiguity in the language, par 21 of the Direction must be read as preserving the discretion of the decision-maker to take into account all the relevant circumstances of the cases and, if otherwise appropriate, to hold that the hardship likely to be experienced by a potential deportee outweighs even serious criminal conduct. This conclusion does not resolve all questions of construction of the Direction, and perhaps not all questions going to validity, but it is sufficient for the purposes of the present case.
Findings on Material Questions of Fact
There was no dispute between the parties that a failure by the AAT to state its findings on material questions of fact, as required by s 43(2B) of the AAT Act, constitutes an error of law. In East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457, at 466, Hill J explained this result as flowing from the fact that the decision-maker has failed to direct its attention to considerations properly relevant to its determination and thus the proceedings before it have miscarried. The rationale underlying the statutory duty encompasses the need to ensure that the unsuccessful party understands why the decision went against him or her and the importance of engendering confidence in the community that the tribunal has gone about its task appropriately and fairly: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 (FC), at 414-415, per Sackville J.
Section 43(2B) requires the AAT only to make findings on material questions of fact: that is, the substantial issues on which the case turns: Muralidharan, at 414. Mr Johnson accepted (in my view correctly so) that, having regard to the scope of the discretion conferred by s 200 of the Migration Act and the terms of the Direction, the nature and degree of hardship the applicant was likely to experience, or was at risk of experiencing, if deported to Romania was a material question of fact on which the AAT was bound to make a finding. It follows (as Mr Johnson also accepted) that the critical issue that falls for determination is whether the AAT did make a finding in relation to that material question of fact. In resolving that issue it is of course necessary to give a beneficial construction to the AAT’s reasons: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271 – 272, per Brennan CJ, Toohey, McHugh and Gummow JJ.
The AAT’s summary of evidence occupies the bulk of its reasons. While the summary is presented by reference to relevant paragraphs of the Direction, it does not include findings as to the degree of hardship the applicant is likely to experience, or is at risk of experiencing, if deported to Romania. The evidence identified by the AAT as relevant to the question of hardship includes Mr Mitin’s rather dire predictions as to the fate likely to befall the applicant in the light of discrimination against Romas in Romania and brief references to what might on one view be more measured independent reports about the nature and extent of the discrimination against Roma. But the summary does not evaluate the evidence, nor attempt to assess the extent to which the applicant (as Mr Mitin claimed) is at risk of physical harm or even death if he were to be deported to Romania.
The core of the AAT’s reasoning is contained in the last three paragraphs of its reasons. It makes very clear findings (as the evidence entitled it to do) that the applicant had committed serious offences which have earned the condemnation of the community; that the applicant had ignored a most serious warning; and that his risk of recidivism was moderate to high. Before considering whether hardship to the applicant (or his family) could counter-balance these findings, the AAT expressed the firm opinion that the risk of recidivism was “unacceptable” and that a “strong deterrent message” had to be sent to non-citizens contemplating similar offences if “they meet the criteria for deportation”.
The AAT then acknowledged that “undoubted hardship [would be] caused to both [the applicant] and his family through his deportation”, but that that factor “on balance is of far less significance than the need to protect Australian society”. No indication is given in this passage of the nature of the “undoubted hardship” that would be caused to the applicant and his family. Was the AAT accepting (as Mr Mitin and Reverend Vesa claimed) that the applicant was at risk of being beaten and having his house burned (or worse) because he was a Roma, but intending to say, nonetheless, that this risk was outweighed by the applicant’s serious criminal conduct and the likelihood that he would reoffend? Or was the AAT intending to reject the more extreme claims made by Mr Mitin and Reverend Vesa and to accept instead the somewhat more sober (but still “troubling”) assessment of the United States Department of State (which acknowledged societal discrimination against Roma, extending to “credible reports of anti-Roma violence”, but noted some improvement in the legal protection accorded to Roma)? Or was the AAT intending to accept the substance of a 1996 report by the European Roma Rights Center (“ERRC”) which paints a grimmer picture than that portrayed by the State Department but perhaps not entirely supporting Mr Mitin’s dire assessment? (The Center reported “[v]iolence by law enforcement officials [amounting] to tacit approval of racism and racist attacks against Roma” and a culture of “official brutality”. According to the ERRC, “many victims [of racism] have reached a bitter state of melancholy, beyond fear”).
The AAT was not of course bound to accept the evidence of Mr Mitin or Reverend Vesa as to current conditions in Romania or their assessment of the likely risks facing the applicant if deported to Romania. The point is that the reasoning leaves it uncertain as to why the AAT reached the conclusion that it did. In particular, it is not clear whether the AAT took the view (despite its reference to the need to balance considerations) that serious criminal conduct together with a moderate to high risk of recidivism, inevitably must outweigh hardship to an applicant, no matter how great the degree of hardship. Or was the AAT influenced by an unexpressed view that the risks confronting the applicant were significantly less serious than he had claimed?
Mr Johnson, while acknowledging the absence of express findings by the AAT about the extent of likely hardship, attempted to overcome the difficulty by contending that there was no real dispute between the applicant and the Minister as to the extent of the hardship the applicant was likely to encounter. It was, he said, the absence of any dispute that explained the AAT’s failure to make express findings on this issue. In my view, this submission reads too much into the arguments advanced by the respective representatives.
It is true that the applicant’s representative before the AAT (a migration agent) made rather sketchy submissions that would have been (with all due respect) of little assistance to the AAT. But nothing she said could be taken as an abandonment of any reliance on the evidence, for example, of Mr Mitin or Reverend Vesa (both of whom gave oral evidence). Indeed, it is hardly likely that the AAT understood her submission this way, since it quoted at some length from Mr Mitin’s statement.
It is also true that the Minister’s representative acknowledged that the applicant would face hardship if returned to Romania. Her submissions cannot be read, however, as conceding that the AAT should accept the applicant’s claims of hardship at their highest. On the contrary, the Minister’s representative quoted from the United States Department of State report and appears to have suggested, on the basis of that report, that the position of Roma in Romania had improved, although significant discrimination against them still occurred. To have accepted the Minister’s submission, the AAT would have had to reject or qualify at least some of the evidence of Mr Mitin and Reverend Vesa and to have treated with caution certain of the observations made by the ERRC about the degree of discrimination against Roma.
Mr Johnson’s final argument was not entirely consistent with his earlier submissions. He contended that the last sentence of par 56 of the AAT’s reasons should be read as constituting a rejection of the more extreme versions of the hardship to which the applicant would be subjected upon his enforced return to Romania. It was not entirely clear which of the competing versions it was said the AAT was intending to adopt, but Mr Johnson suggested that the intention was to indicate that a legal structure prohibiting discrimination was in place in Romania and that, subject to exceptions, by and large the legal structure was observed in that country.
The AAT’s reasons must be construed beneficially. Even so, in my view par 56 cannot be read in the way Mr Johnson suggested. The AAT did not explain why the discrimination and treatment the applicant might encounter in Romania did not raise questions about Australia’s international obligations. However, the Minister’s representative had submitted to the AAT that
“the hardship that we have heard of from the witnesses… would go to hardship on his return, but is not an issue for consideration within international obligations.” (emphasis added).
The representative then gave reasons why this was the case with respect to the Refugees’ Convention (notably because of the exclusion of certain convicted persons from the Convention), but did not address specifically the ICCPR or the CAT.
The AAT appears to have accepted the Minister’s submission, albeit somewhat uncritically. In other words, it appears to have accepted that any discrimination or physical danger to which the applicant might have been exposed on his return to Romania was relevant to the issue of hardship but not to the question of Australia’s international obligations. This interpretation of the AAT’s reasons is consistent not only with the submission made to it (and the way in which the AAT recorded that submission), but with the language used by the AAT in par 56. Had the AAT intended to be making a finding of the kind suggested by Mr Johnson, it could have been expected to do so more explicitly and directly and by reference to those portions of the evidence it accepted or rejected. Accordingly, I reject the Minister’s contention that par 56 of the AAT’s decision should be read as a finding concerning the degree of hardship that the applicant would face if he were returned to Romania.
Conclusion
The applicant has established that the AAT failed to make findings on a material question of fact, namely the nature and degree of hardship the applicant was likely to experience, or was at risk of experiencing, if deported to Romania. It therefore erred in law. The matter should be remitted to the AAT, differently constituted, for determination in accordance with law. The Minister should pay the applicant’s costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate:
Dated: 10 December 1999
Counsel for the Applicant: Mr TA Game SC Solicitor for the Applicant: Mr R Kessels Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 November 1999 Date of Judgment: 10 December 1999
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