Gray, G. v Department of Immigration, Local Government and Ethnic Affairs
[1992] FCA 1022
•18 DECEMBER 1992
Re: GARY GRAY
And: DEPARTMENT OF IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. Q G115 of 1992
FED No. 1022
Number of pages - 30
Immigration
(1992) 39 FCR 526
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Cooper J.(1)
CATCHWORDS
Immigration - deportation order against convicted non-citizen - appeal to Administrative Appeals Tribunal against deportation order - relevant considerations - policy statements - whether Tribunal balanced the benefits to the Australian community which would be achieved by deportation against the personal hardship to the deportee and his immediate family - whether the Administrative Appeals Tribunal gave effect to the policy statements - whether decision maker of the view that there is a benefit to the community as a whole in ordering deportation - weight to be given to factors - whether failed to make a quantitative and qualitative assessment of the risk of recidivism - whether the Administrative Appeals Tribunal made error of law vitiating its discretion.
Administrative Appeals Tribunal Act 1975
Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1985-86) 162 CLR 24.
Gerah Imports Pty. Ltd. v. Minister for Industry, Technology and Commerce (1987) 17 FCR 1
Waterford v. The Commonwealth (1986-87) 163 CLR 54
Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321
Commissioner of Taxation v. McCabe (1990) 26 FCR 431
Commonwealth Banking Corporation v. Percival (1988) 82 ALR 54
Luu v. Renevier (1990) 91 ALR 34
Northern NSW F.M. Pty. Limited v. Australian Broadcasting Tribunal (1990) 26 FCR 39
HEARING
BRISBANE
#DATE 18:12:1992
Counsel for the Applicant: Mr P. Nase
Solicitors for the Applicant: Diane Soon and Co.
Counsel for the Respondent: Mr Boulton
Solicitors for the Respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS:
1. That the decision of the Administrative Appeals Tribunal of
29 July, 1992 be set aside and the matter be remitted to the Tribunal for further hearing and determination according to law.
2. That pending the further hearing and determination by the
Administrative Appeals Tribunal, of the application to review the deportation order made on 26 June, 1991 in respect of the applicant, no steps be taken to implement the said deportation order.
3. That the respondent pay the applicant's costs of and
incidental to the application, including reserved costs if any, to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Introduction
COOPER J. The applicant seeks an order of review pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") in respect of a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming the decision of the delegate of the Minister for Immigration, Local Government and Ethnic Affairs made on 26 June, 1991 ordering the deportation of the applicant from Australia.
The deportation order relevantly provided :-
"WHEREAS GARY GRAY is a non-citizen. AND WHEREAS the said GARY GRAY was convicted at Brisbane on the Twenty-sixth day of April 1985 of an offence namely stealing with actual violence whilst armed with an offensive weapon for which he was sentenced to ten years imprisonment and which offence he committed on the Twenty-seventh day of July 1984 AND WHEREAS at the time of the commission of the said offence the said GARY GRAY was not an Australian citizen and had been present in Australia for a period not in excess of ten years NOW I, WAYNE JULIAN GIBBONS a Delegate of the Minister of State responsible for administering the Migration Act 1958, DO HEREBY ORDER, in pursuance of the power conferred upon me by Section 55 of the Migration Act 1958, that the said GARY GRAY be deported from Australia".
The applicant is a British citizen. He was born in Aberdeen Scotland on 13 September, 1959. His father died when he was ten years old. His mother remarried and the family moved to England. The family migrated to Australia on 17 March, 1974 and settled in Adelaide.
The applicant began using alcohol and drugs in Australia and left home and school when he was aged fifteen years. Prior to his arrival in Australia the applicant had not come to the attention of the police. However, in Australia by 1976 the applicant began to accumulate a significant criminal history. In 1978 the applicant married Vicki Thomas and has two daughters from that marriage. Naomie Lee was born on 13 December, 1978 and Stevie was born on 21 August, 1982. The applicant was divorced by his wife in 1988. At the time of the divorce the applicant was in prison.
The applicant's criminal history is :-
"SOUTH AUSTRALIA
13/5/76 Elizabeth JC Disorderly Behaviour WOC dism JCA 16/12/76 " Larceny $30 " " Possess Implements (2) WOC dism JCA " " Possess Indian Hemp " " " 10/5/78 " House Break and Larceny dism JCA " " Possess Indian Hemp WOC 2 YR $300 G.B. Bond " " Smoke Indian Hemp dism JCA " " Possess Implements Proved WOC dism JCA " " Garage Break and Larceny Proved WOC dism JCA " " Break Enter and Steal Proved WOC dism JCA " Para. Dist. D.U.I. 28 days imp D/L 2 yrs " " Possess Implements $200 21/7/78 Supreme Ct. Larceny from person 2 yrs S/S $200 3 yr GBB 23/6/79 Adelaide MC Illegal Use $200 " " Manner Dangerous $150 D/L 6 M " " Drive Disqualified $100 D/L 6 M 12/3/80 " Disorderly Behaviour $50 " " Resist Arrest $80 9/5/80 Para Dist. D.U.I. 3 M Imp D/L UFO " " " Drive Disqualified 28 days Imp D/L UFO 20/5/80 Supreme Ct. Breach Bond (21/7/78) 2 yr sentence effected 30/9/80 Para Dist. Illegal Use 3 M 14/1/82 " " Offensive Language $90 12/2/82 Adelaide MC Drunk CWOP 6/9/82 Supreme Ct Armed Robbery 3 yrs NPP 18 M" "NEW SOUTH WALES
302 Castlereagh
St. P.S. 2/8/84 Possn. Indian Hemp Not before Possn. implements Court Smoke Indian Hemp Warrant may Carry cutting issue on instrument each charge QUEENSLAND
Brisbane S.C. 26/4/85 Steal with actual 10 yrs imp. violence whilst h.l. armed with an offensive weapon (27/7/84) As Gary GRAY Rockhampton
MC 6/9/85 Knowingly concerned 6 mths imp in forgery Uttering 6 mths imp as Gary GRAY Both sent. to be served conc. with present sent of 10 years imposed by S.C. Brisbane in May 1985 Rockhampton
MC 10/4/86 Escape from prison C/S 8 mths
(6/4/86) imp as Gary GRAY Brisbane MC 19.1.88 Attempted Escape CandS 12 Mths from Prison Imp Cuml to (on 25.9.87) Present term As Gary GRAY (Charged with Leonard Paul BLACK, John Peter RAYMOND and Garry Richard DANIELS)
Brisbane MC 6/5/88 Possn of dang drug CandS 6 mths
(24/11/87) imp. on each Supply dang drug charge to another person (24/11/87) As Gary GRAY Brisbane DC 22/6/88 Appeal against sent. 6 mths imp. of Criminal of 19/1/88 cuml. with Appeal present sentence as Gary GRAY Brisbane DC 4.7.88 Unlawful assault CandS 1 mth
(25/11/87) imp as Gary GRAY Brisbane MC 20.7.88 Take part in riot 8 mths imp. (on 2.12.87) to commence as Gary GRAY" at end of present sentence
After the applicant's conviction in the Supreme Court of South Australia for larceny from the person on 21 July, 1978, for which he was sentenced to a suspended sentence of 2 years imprisonment with hard labour and placed on a bond of $200.00 to be of good behaviour for three years, the applicant was interviewed by an officer of the Department of Immigration and Ethnic Affairs on 6 December, 1978. It was determined that deportation was not warranted and in lieu a warning was issued on 8 January, 1979. The warning stated :-
"On 6th December 1978 you were interviewed at this office regarding the question of your possible deportation from Australia as a result of your conviction in July 1978 for Larceny. Your case has been carefully considered and it has been decided that you will not be deported at this time. You are warned however that should you again commit a serious breach of the law the possibility of deportation will again be considered.
Would you please acknowledge receipt of this letter".
Due to his further convictions the suspended sentence was revoked and the applicant imprisoned in South Australia. On 5 June, 1980 the applicant was interviewed in gaol by a departmental officer and advised that his possible deportation was being re-considered. As appears from a departmental minute of 14 August, 1980 it was realised that the applicant had not committed any further offence which would render him liable to deportation, the applicant having then been in Australia for a period exceeding five years (see section 13 of the Migration Act 1958 as it then stood). It was determined within the department that "No further action be taken except to inform him that he will not be deported". Accordingly the applicant was written to on 19 August, 1980 as follows :-
"I refer to the interview you had with an officer of this Department on 5/6/80 at Adelaide Gaol regarding your possible deportation from Australia.
I now wish to advise you that after careful consideration it has been decided that you will NOT be deported on this occasion".
On 6 September, 1982 the applicant was convicted on his own plea of armed robbery. On 21 June, 1982 the applicant had gone to the Salisbury Credit Union to withdraw money from his account and was advised that he had a zero balance in the account. The applicant left the office and returned shortly after armed with a knife and robbed two female employees of $17,502.00. The sentencing judge, Mr Justice Bollen, said at the time of sentence :-
"On the day of the offence you went to the credit union innocently and reasonably expecting that there would be some money there which you could withdraw. Perhaps more thought would have revealed to you that there would not be any money there, but I entirely accept that you quite expected that there would be money there. I also accept that you were carrying a pocket knife for a perfectly innocent reason, and had no pre-meditated intention of committing any offence or causing any fear to anybody. When the teller told you that there was no money there, to use the words that you have used to your counsel, you cracked, you threatened her with the knife and took seventeen odd thousand dollars for yourself. You spent it all on things for yourself, except that of it which was stolen by other thieves. You bought a car and accessories to it, and other personal things, you had a holiday in Darwin and you wasted money in the casino. You did not even provide any of the stolen money for your wife. You had a very good reason for not doing that, you knew that she was an honest person and would not have anything to do with it. You then obtained some work temporarily in Kununurra in the north-east of Western Australia. You were apprehended for a minor traffic matter and all came out. It is perfectly clear, to my mind, that when you went through the doors of the credit union you had no intention of committing any offence, and that is fortified by you having put your own name on a slip which remained there. It was not hard for you to be found once you had committed the minor traffic offence.
I taken into account everything that your counsel has said and I take into account that this was not a premeditated offence. I take into account the unfortunate experiences you have had, and as I say, I give but a necessary note in my mind to your past record. The offence is very serious indeed. Credit unions must, so far as the courts can, be protected from fear occasioned to them by someone threatening them with a knife. I note Mr Cochrane's submission, which I think is probably sound, and certainly which I will assume to be sound, that you will be a very unlikely candidate for parole. Bearing in mind the seriousness of the offence and balancing that against the fact that it was an unpremeditated offence and that drink on the day played some part in it, the sentence of the court is that you be imprisoned with hard labour for three years, and I fix a non-parole period of eighteen months".
The applicant was released on parole in 1984. During his time in gaol the applicant continued to use drugs. Upon his release he found that his wife had formed a relationship with another man and so the applicant commenced to reside with persons he had met in prison. These people were heroin addicts and the applicant re-commenced to use heroin.
The applicant moved to Brisbane and on 27 July, 1984 robbed a branch of the Bank of Queensland of $15,858.00 and returned to Adelaide where he spent the money on drugs and drug debts. He was returned to prison for breach of parole and was extradited to Queensland on a charge of stealing with actual violence whilst armed with an offensive weapon.
On 26 April, 1983 the applicant was sentenced in the Supreme Court of Queensland by Mr Justice Carter to a period of imprisonment of ten years. At the time of sentencing His Honour said :-
"The circumstances of the case are marked firstly by the feature that you had in your possession a knife and that the female employee of the bank suffered as a result of that a minor injury. It is clear that the bank employees suffered considerable distress. The girl in question, it is said, collapsed and the accountant was manhandled in the process of robbery. A large sum of money, $15,858, was stolen and all but $1,000 of that sum has not been recovered".
On 8 June, 1985 the applicant was interviewed in gaol and advised that by reason of his conviction he had rendered himself liable to deportation. He was further advised of the opportunity of making known his personal circumstances and anything else that he wished the Minister to take into account when considering the applicant's case.
On 26 June, 1991 a deportation order was made by Mr. Wayne Gibbons as delegate of the respondent.
On 31 July, 1991 an application for review of the deportation order was lodged. After hearing evidence the Tribunal on 29 July, 1992 affirmed the order and delivered written reasons for its decision.
The Decision of the Tribunal:
15. The Tribunal took into consideration, as a matter relevant to the review, alleged prior warnings given to the applicant. The Deputy President said :-
"18. Exhibit 3 contains a number of documents which disclose that the applicant had been warned as early as 1978 of his liability for deportation in relation to offences committed prior to his second armed robbery conviction. Document T13 records an interview under Sections 12 and 13(a) of the Act between a departmental officer and the applicant. It is to be noted that the response recorded to the question for the interviewer, "Is he repentant?", appears as "Yes, was high". Document T17 formalises by letter to the applicant that a warning of liability of deportation had been issued.
19. Following these warnings in respect of the larceny convictions, the Department issued further warnings in reaction to the driving under the influence and driving while disqualified convictions (T21, T22). On 5 June 1985, the applicant was again interviewed by a departmental officer and warned of his liability for deportation (T61).
20. On 8 December 1988, Senator, the Honourable Robert Ray, Minister for Immigration, Local Government and Ethnic Affairs, made a statement on criminal deportations which in part reads :-
"Clearly, a person who has been previously warned about the liability for deportation and, notwithstanding that warning, commits a further deportable offence, should expect that the warning be given serious weight in consideration of his case. A person whose reputation is based on an array of convictions against the Australian society should usually be judged in the light of that past behaviour".
21. Given the numerous warnings issued and the written acknowledgment and comprehension thereof as provided to the Department by the applicant and his then wife, (T23, T24), I place due weight on the fact of those warnings".
The Tribunal also addressed the question of recidivism. The Deputy President said :-
"24. The risk of recidivism is to be considered with all other factors involved in criminal deportation matters. In the present case, the risk of recidivism, in light of the applicant's rehabilitation, featured prominently in the applicant's submissions. The applicant, by his own admission at the hearing, had been a heroin addict and a drug-user for a large part of his life. He stated that : "I think I have used just about every drug except for some of the newer designer drugs. There was amphetamines, heroin, cocaine, LSD, marijuana, hash, alcohol - just about everything. At the time of the armed robbery I had been using heroin and..."
25. The applicant claims not to have used any heroin since 1988 due to a solid commitment to be drug free. The applicant is currently on parole and resides at Logan House, an intensive drug rehabilitation centre at Kingston, Brisbane, which is funded by the National Campaign Against Drugs and Alcohol (a joint State and Federal Government funded facility). As at 5 June 1992, the applicant had progressed to the second level of the four level programme. The applicant was observed by staff of the facility to have quickly adapted to the routine demonstrating an unusual degree of insight into the programme.
26. The applicant is progressing successfully with tertiary studies in a Bachelor of Social Science at Charles Sturt University and a Bachelor of Engineering at the University College of Southern Queensland. The applicant, it has been submitted, is a role model of rehabilitation.
27. The applicant stated that he has addressed the issue of violence and he claims that he is fully aware of the trauma he has caused. The applicant's girlfriend, Ms Barbara Evans, works at a refuge for victims of domestic violence and has been involved in organising community initiatives to combat violence in the community. The applicant has the full support of Ms Evans in his commitment to lead a drug and crime free life. The applicant plans to live with Ms Evans after the completion of his Logan House course and he stated that he is prepared for reality if things do not work out. Ms Evans observed :
"Gary has critically evaluated his own behaviour in the past and in one particular conversation with me, he expressed concern at the fear and trauma he may have caused others as a result of his armed robberies".
28. Dr Peter Mulholland, Psychiatrist, stated in his report that:
"In view of his past history it is a daunting challenge to regard the risk of recidivism as being anything less than significant.
However, as stated above, over the past few years he seems to have taken every conceivable correct measure to rehabilitate himself. He appears to be engaged, in a systematic fashion, in attempting to rehabilitate himself in terms of drug dependence and improving his general personality functioning. Assuming that he completes his programme at Logan House and was permitted to stay in Australia, then I would be inclined towards the view that the risk of recidivism is low".
29. Mr Stewart, Assistant Deputy Director General of the Queensland Corrective Services Commission, has been involved in probation and parole services for almost 20 years. Mr Stewart sat on the Parole Board where a recent application by the applicant was under consideration. In evidence at the hearing, Mr Stewart observed that the applicant would be considered a high risk parolee in terms of supervision but not necessarily a high risk to the community although history renders him a risk to the community.
30. I note that the applicant's previous record indicates a high risk of re-offending in times of stress. For example in 1979, the applicant lost his job and was having relationship difficulties with his wife. He began to drink more heavily and to take sleeping tablets. This led to a drug and drinking binge which resulted in a car accident and the driving under the influence and driving whilst disqualified convictions. Again, when the applicant was released on parole in 1984, he returned to heavy drug use when he discovered that his wife had been living with another man. The applicant travelled to Brisbane and robbed a bank for money with which to purchase drugs, the crime now the subject of the deportation order.
31. I can accept that the applicant has recognised that drugs have led him into crime and that the applicant is doing all he can to reject drug usage so as to avoid a possible relapse into crime. However, taken one step further, unfortunate events have previously led the applicant to drugs which in turn have led the applicant to crime. It is difficult, if not impossible, to avoid such dramas of life.
32. The applicant has not been free in the Australian community, as distinct from the therapeutic community of Logan House, for many years. In the circumstances, there is no evidence before me which may indicate how the applicant will cope with difficult predicaments. Ms Alison Hunter, Acting Programmes Manager at the Moreton Correctional Centre, Darra who employed the applicant under her direct supervision as Education Clerk, stated that the applicant's "...best chances of avoiding re-offending lies in his completing his current studies and obtaining work. An opportunity which presents itself in Australian through his current relationship and study". How will the applicant's chances rate in the not uncommon event that financial hardship causes a student to put studies in abeyance or finding employment proves unsuccessful during or upon completion of studies?
33. The applicant's previous general record and conduct, extent of rehabilitation already achieved and prospects of further rehabilitation assist consideration of the risk. Since the applicant began his 10 year sentence for the second armed robbery, he has been convicted of being knowingly concerned in forgery, uttering, escaping twice, attempting to escape, possession and supply of dangerous drugs, unlawful assault on a prison officer, riot and various breaches of the Queensland Prisons Act. The applicant's 10 year prison sentence was, in consequence, extended by more than 2 years. Exhibit 2 contains numerous prison daily progress notes and many minor charge sheets. The rooftop protest which the applicant was involved in is also well documented in Exhibit 2. I note the re-assessments of the applicant's security classifications prior to his release and the marked improvements recorded in his prison behaviour".
The Tribunal detailed the substantial steps that the applicant had made in his rehabilitation and the hardship deportation will cause the applicant to be deported back to Scotland where he has no social ties of any significance. The Deputy President then concluded :-
"59. I accept that deportation will considerably disrupt the applicant's rehabilitation and cause a degree of hardship to the applicant, his family and Ms Evans but these considerations are overborne by the weight of other factors. I find that the risk of recidivism is unacceptable. It is well established that the more severe the nature and extent of danger to which the community may be exposed, the lower is the level of risk which is acceptable. In this case, that requires a very minimal risk. I am considerably impressed by the applicant's recent positive efforts towards rehabilitating himself. However, in this case the applicant's criminal record and conduct prior to 1990 appears to be the more reliable indicator in attempting to predict future criminal behaviour. Such predictions are always difficult and this case is no exception. Deportation is not to serve as punishment, I am duty bound to consider the public interest of the Australian community and it is in that context which I have considered the previous criminal record and conduct".
On 1 April, 1992 the Secretary of the Department of Immigration, Local Government and Ethnic Affairs wrote to the President of the Tribunal complaining of the adjournment by the Deputy President of the hearing from 2 March to 15 June, 1992 to enable the applicant to attend Logan House for drug rehabilitation. The Deputy President became aware of the letter but not its contents the day before he delivered his decision. The Deputy President delivered his decision and reasons and then raised with the parties that the letter had been sent. When the Tribunal was reconvened on 31 July, 1992 a copy of the letter was provided by Counsel for the respondent to the Tribunal.
The Issues before the Court
19. Counsel for the applicant argued :-
1. On the findings of fact of the Deputy President and the uncontested evidence before the Tribunal, no reasonable mind could find the very minimal risk that the applicant would re-offend was in the circumstances an unacceptable risk.
2. That the Tribunal in setting the acceptable level of risk of the applicant committing further offences at a very minimal risk failed to take into account the following factors :-
(a) the nature of the past offences;
(b) the prison offences;
(c) his efforts at reformation;
(d) the reformation he has achieved and his strong moral character;
(e) the applicant's supervision in the community and system of support which are calculated to maximise his prospects of a successful integration into the community;
(f) the extent of rehabilitation already achieved and the prospect of further rehabilitation as matters to be considered under the minister's policy guidelines;
(g) if permitted to remain in Australia he may be reasonably expected to contribute positively to the community; both through the personal acquisition and later use of skills and importantly as a role model of successful rehabilitation from drug addiction and crime;
(h) the hardship to his children and wider family; his parents and brothers and sisters all of whom are citizens of Australia;
(i) considerations arising out of the circumstances that he arrived in Australia as a child and is in all real senses an Australian with no significant ties to the place of his birth;
(j) that he would not simply be released on the community but that he would be initially at Logan House and then on parole and under supervision and with a support system in place for a period of years; which matters would lead a reasonable mind to set a higher level of acceptable risk.
3. That the Tribunal failed to bring into account in favour of the applicant evidence accepted by the Tribunal of the importance of the applicant as a role model of rehabilitation in overcoming drug dependence and criminality when determining the acceptable level of risk of recidivism by the applicant.
4. That the Tribunal erred in considering whether a very minimal risk that the applicant might re-offend was an unacceptable risk, by failing to consider the possible harm to Australia's international reputation by deportation of the applicant.
5. That the Tribunal erred in considering whether a very minimal risk that the applicant might reoffend was an unacceptable risk by failing to consider the future hardship and suffering that would be caused to the applicant's Australian children by his deportation.
6. That the Tribunal erred in treating the letter from the Department to the applicant dated 8 January, 1979, the interview of 5 June, 1980, the letter of 19 August, 1980 and the interview on 5 June, 1985 as relevant warnings within the policy guidelines of the Minister and erred in attaching significant weight to those communications as warnings.
7. That the Deputy President should have disqualified himself after he was made aware the respondent's Department had written to the President of the Administrative Appeals Tribunal complaining of his conduct in those proceedings.
Conclusion
20. On 4 May, 1983 the then Minister for Immigration and Ethnic Affairs published Australia's Criminal Deportation Policy. A further statement was made by the then Minister for Immigration, Local Government and Ethnic Affairs on 8 December, 1988 explaining and expanding upon the earlier policy statement. The purpose underlying the policy is contained in paragraph 6 of the statement of 4 May, 1983. The paragraph provides :-
"The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/her family".
The policy in its application involves the balancing of the benefits to the Australian community which would be achieved by deportation against the personal hardship to the deportee and his/her immediate family.
By paragraph 16 of the policy statement there are identified the broad criteria to be applied in forming a judgment as part of the balancing exercise. The paragraph provides :-
"The most important broad criteria on which judgments will be based are the nature of the crime; the possibility of recidivism; the contribution that the person has made to the community or may reasonably be expected to make in the future and the family and/or social ties that already exist. In particular the following factors will be taken into account when making a decision on whether a deportation order should be issued:
. the nature of the offence as outlined in paragraph 9 and the length of sentence imposed by the Court;
. the person's previous general record and conduct;
. the risk of further offences; . the extent of rehabilitation already achieved, the prospect of further rehabilitation and positive contribution to the community the person may reasonably be expected to make; . the length of lawful residence in Australia, the strength of family, social, business and other ties in Australia;
. the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation or conversely the extent of support for deportation from persons directly affected;
. any unreasonable hardship the offender would suffer;
. ties with other countries; . the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government; . the likelihood that deportation of the offender would prevent or inhibit the commission of like offences by other persons.
This list is not exhaustive; if relevant, other factors that come to notice will be taken into account in individual cases".
In the statement of 8 December, 1988 the then Minister made the following statements which are relevant to the matter before the Court. The Minister said :-
"Clearly a person who has been previously warned about the liability for deportation and notwithstanding that warning commits a further deportable offence, should expect that the warning be given serious weight in consideration of his case".
The Minister also said :-
"A sensitive issue which also arises from time to time concerns the liability for deportation of an adult who arrives in Australia as a minor. Clearly, the time a person has been in Australia and the degree of connection persons have with their country of origin are relevant factors in coming to a decision on whether or not a non-citizen resident ought to be deported when the person has offended against the laws of Australian society. The view has occasionally been expressed that persons who have migrated to Australia when they were minors ought never be deported. This is not consistent with the legislation or Parliament's intentions. I share concerns about the desirability of deportation in these cases but in many we are dealing with an offender who embarked on a life of crime as a child and who pursues that life into adolescence or adulthood. Where there is a pattern of criminal behaviour indicating a likelihood that the person will commit further serious crime, I believe a decision to deport must seriously be entertained".
The Tribunal in coming to its decision has purported to give effect to the policy statements and in paragraph 59 of its reasons to perform the balancing exercise required by the policy.
Before the balancing required by the policy can be undertaken, it is necessary that the decision maker come to a view that there is a benefit accruing to the community as a whole from the removal from the community of the applicant by deportation. The making of a decision as to whether or not deportation represents a benefit to the community as a whole itself involves a balancing exercise and the consideration of a number of relevant factors identified in the deportation policy statements. Those factors are :-
(a) The nature of the offence which renders the person concerned
liable to deportation and the sentence imposed;
(b) The person's previous general record and conduct;
(c) The risk of further offences;
(d) The extent of rehabilitation already achieved and the
prospect of further rehabilitation;
(e) The positive contribution to the community the person may
reasonably be expected to make;
(f) The potential damage or effect on the community if further
offences are committed;
(g) The effect of any previous warnings of possible deportation
given to the person;
(h) Such other circumstances as relate to the particular person
and are relevant to an assessment of the benefit of deportation to the community.
Certain of the factors may be relevant to a determination of another factor or factors. For example, the nature of the offence and the person's past criminal history may be relevant to a determination as to the risk of recidivism. However, each factor is to be assessed separately in determining whether there is a benefit to the community as a whole in ordering deportation. This is reflected in the terms of the policy itself. Again to take by way of example the nature of the offence committed. The policy statement of 4 May, 1983 in paragraph 8 provides :-
"8. Deportation of a person convicted of a crime may be appropriate when a person: . constitutes a threat because there is a risk he/she will commit further offences if allowed to remain; or . has committed a crime so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence; or
. has not established sufficient ties with Australia to have become a full member of the community and, by reason of his/her conduct, is unsuitable for permanent residence in Australia".
It may be that the circumstances of a particular crime are so offensive that notwithstanding there is no risk of recidivism, the balance after considering all other relevant factors, lies in favour of a benefit accruing to the general community by the removal of the person by deportation.
The weight to be given to any factor depends upon the particular circumstances of any case. Clearly, as stated in the Deportation Policy, when the question of recidivism is considered, "the greater the potential effect on the community or the greater the potential damage to the community, the lower is the acceptable level of risk that the person concerned will commit further offences" . However the determination of an acceptable level of risk involves more than a mere quantitative assessment. There is also involved in the determination a qualitative assessment of the risks and the consequences of any further offences on the community.
The risk of recidivism is but one of the factors to be taken into account when forming a judgment as to whether or not there is a benefit accruing to the community as a whole in ordering deportation. It is not the only factor, although in any particular case significant weight may be given to the risk.
The Tribunal has sought to apply the policy statements in coming to its decision and has referred to each of the broad criteria in the statement of 4 May, 1983 and the question of prior warnings referred to in the statement of 8 December, 1988. It is not clear what particular weight was given by the Tribunal to each of the factors. However, the question of weight is, generally speaking, a matter for the Tribunal unless the decision reached is manifestly unreasonable (Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1985)-1986) 162 CLR 24 at 41). What is important is that the Tribunal has considered the nature of the deportable offence and the sentence imposed, the applicant's previous criminal history, and the extent of rehabilitation in the context of determining the risk of recidivism of the applicant in committing serious drug related crime (see paragraphs 24 to 49 and especially paragraph 33 of the Tribunal's reasons) but has failed to consider these factors separately in determining whether or not there was a benefit to the community in deportation to be weighed against hardship to the applicant and his family.
In the final analysis the Tribunal has determined what in its judgment is an acceptable level of risk that the applicant will commit further offences and measured the risk of recidivism against the level determined. That is, community benefit in removal of the applicant by deportation was determined solely by a judgment made on the risk of recidivism, albeit that some other factors were considered in forming that judgment, being outside an acceptable level of risk.
The Tribunal set the level of risk by reference to the severe potential impact on the community if the applicant relapsed into the commission of drug related serious crime. In setting the level of acceptable risk the Tribunal did not take into account any of the relevant factors other than the potential damage or effect on the community if further offences of the type previously committed recurred. On the basis that the nature and extent of danger to the community if the applicant relapsed into drug related serious crime was severe, the Tribunal set the acceptable level of risk at "a very minimal risk".
Importantly, the Tribunal did not take into account the extent of rehabilitation already achieved and the prospects of future rehabilitation, and, the positive contribution to the community the applicant may reasonably be expected to make as a role-model of rehabilitation in circumstances where the Tribunal appears to have accepted that the applicant has made positive efforts towards rehabilitating himself and accepted the evidence of Dr. Mulholland, Psychiatrist, that :-
"He is studying engineering and social sciences and appears to have the ability to be successful in either or both of these pursuits. It is likely that he will be able to make a contribution to Australian society in either of these areas.
However, I see him having a potentially valuable contribution in terms of being a role model for successful rehabilitation of drug dependent criminals and drug dependent persons generally. If he was able to do this then this, and I think there is a reasonable chance that he will be able to do so, then this would be a significant contribution to our society. It is important that such role model exist, both for those who are in the drug dependent and/or criminal situation and, just as importantly, for those who are working with such people. For workers in these areas it is easy to become demoralised and the rewards that come from these areas come from the all too infrequent successful rehabilitation exercises. In this capacity he would serve as a useful role model for drug dependent persons and/or drug dependent criminals as well as being a source of satisfaction and reward for the many who have been involved in his rehabilitation".
The demonstrable achievement on the road to rehabilitation and the supportive evidence from a range of persons experienced in the rehabilitation process, plus the potential to contribute to the rehabilitation process in the wider community, were factors relevant to a determination as to whether a higher level of acceptable risk ought to have been set.
The Tribunal did not find, as contended for by Counsel for the applicant, that there was a very minimal risk of recidivism. Rather, the Tribunal found that the risk was something higher than a very minimal risk and was therefore unacceptable. The Tribunal did not attempt to make any quantative and qualitative assessment of the risk and identify the true nature and extent of the risk once the Tribunal accepted that there was a risk of recidivism which exceeded a very minimal risk.
As I have indicated above, the policy required a separate consideration and balancing of factors beyond potential danger to the community and the risk of recidivism to determine whether there was a benefit to the community in deportation. This did not occur. The Tribunal did not purport or intend to depart from the application of the published deportation policy. The Tribunal purported to apply the policy. The case is not therefore one where the Tribunal for proper reasons determined not to apply the policy to the case for determination by it as it was entitled to do. The Tribunal, in my view, has misconstrued and misapplied the policy and has thereby made an error of law which vitiates its decision. (Gerah Imports Pty. Ltd. v. Minister for Industry, Technology and Commerce (1987) 17 FCR 1 at 15). In my view the error made goes beyond the misconstruction and misapplication of the published deportation policy. To determine a level of acceptable risk by reference only to such of the evidence and factors as were against the applicant to the exclusion of such of the evidence and factors as were in favour of the applicant, eg. the level of rehabilitation achieved and the potential as a role model, was manifestly unreasonable. This process of reasoning was in error. It led the Tribunal to exclude from its consideration material beneficial to the applicant which material might reasonably have persuaded a reasonable decision maker to have set a higher level of acceptable risk for this applicant notwithstanding his bad criminal history. It had the further consequence that no proper quantative and qualitative assessment of the risk of recidivism of like offences was undertaken because the level of acceptable risk was set so low. It also had the further consequence that the balancing of hardship against the benefit of deportation undertaken in paragraph 59 of the Tribunal's reasons led to a decision which was unreasonable because the determination of the perceived benefit as a necessary step in the decision-making process failed to take into account relevant factors, and factors necessary to be considered, if the policy statements were to be applied.
There is a further ground for holding that an error of law has been made, and that relates to the finding of the Tribunal as to warnings given to the applicant by the Department. The Tribunal found :-
"Following these warnings in respect of the larceny convictions, the Department issued further warnings in relation to the driving under the influence and driving while disqualified convictions (T21, T22). On 5 June, 1985 the applicant was again interviewed by a Departmental officer and warned of his liability for deportation (T61)."
After referring to the policy statement of 8 December, 1988, the Tribunal made the following observation :-
"Given the numerous warnings issued and the written acknowledgment and comprehension thereof as provided to the Department by the applicant and his then wife (T23, T24), I place due weight on the fact of those warnings".
The evidence only establishes that the applicant received one warning on 8 January, 1979 in respect of his conviction in July, 1978 for larceny. The letters sent to the applicant and his wife in 1980 were not warnings. They were sent to advise the applicant and his wife that he would not be deported. What the letters did not say was that there was no power at that time to deport the applicant and it was for this reason, and no other, that the decision was made. The applicant received no warning and was not interviewed after his conviction on 6 September, 1982 on a charge of armed robbery. The interview of the applicant on 8 June, 1985 occurred after the commission of the deportable offence upon which the deportation order was made. In terms of the policy, even if it was a warning, it is irrelevant because it is not a warning which precedes the commission of a further criminal offence upon which it is sought to ground a deportation order.
In my view there was no evidence to support the findings made by the Tribunal and it was not open to the Tribunal to use the warning given in 1979 and the applicant's contact with the Department between then and 5 June, 1985 in the way which it did.
The Tribunal did not make a mere wrong finding of fact which is not reviewable (Waterford v. The Commonwealth (1986-87) 163 CLR 54 at 77). There was no evidence to sustain a finding that the applicant received warnings other than the one given in 1979. The absence of such evidence makes the finding of warnings beyond that given in 1979 an error of law (Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 355-356; 359, 369; Commissioner of Taxation v. McCabe (1990) 26 FCR 431 at 438ff.
It was submitted by Counsel for the respondent that putting aside the Tribunal's findings as to warnings and its use of those findings, there was sufficient other material to justify the Tribunal coming to the decision which it did. In my view it is clear that the material in relation to "numerous warnings" was used by the Tribunal to the prejudice of the applicant. It is not possible to say what weight was given to the findings by the Tribunal. The policy states that "serious weight" will be given where a deportable offence occurs after a warning has been given. By quoting the policy and then stating that "due weight" has been given to the fact of the numerous warnings, the only reasonable inference is that the Tribunal gave serious weight to them. It is simply not possible to say what effect a proper appreciation of the facts may have had on the Tribunal's ultimate determination of the risk of recidivism and the level of acceptable risk. (See Commonwealth Banking Corporation v. Percival (1988) 82 ALR 54 at 60; Luu v. Renevier (1990) 91 ALR 34 at 47; Bond at 384.
As the decision of the Tribunal is vitiated because of error of law in the circumstances I have set out above, and must be remitted to the Tribunal for further hearing and determination according to law, I do not propose to make any comment in relation to the other grounds argued before me or to express any view on the merits of the applicant's application for review of the decision to deport him.
I am satisfied that the Deputy President in coming to the decision which he did was not biased in fact or in a position of apparent bias against the applicant by reason of the letter sent by the respondent's department to the President of the Administrative Appeals Tribunal. However, the fact that the letter has been sent and that the learned Deputy President became aware of the terms of the letter after he had given his decision are additional circumstances which would indicate that justice is in general better seen to be done if the Tribunal which is to re-hear the matter is reconstituted for that purpose (see Northern NSW F.M. Pty. Limited v. Australian Broadcasting Tribunal (1990) 26 FCR 39).
THE COURT ORDERS:
1. That the decision of the Administrative Appeals Tribunal of 29 July, 1992 be set aside and the matter be remitted to the Tribunal for further hearing and determination according to law.
2. That pending the further hearing and determination by the Administrative Appeals Tribunal, of the application to review the deportation order made on 26 June, 1991 in respect of the applicant, no steps be taken to implement the said deportation order.
3. That the respondent pay the applicant's costs of and incidental to the application, including reserved costs if any, to be taxed.
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