Gumus v Minister for Immigration, Local Government and Ethnic Affairs
[1991] FCA 384
•28 JUNE 1991
Re: GUMUS
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G2 of 1991
FED No. 384
Migration
30 FCR 145/13 AAR 520
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)
CATCHWORDS
Migration - deportation of criminal who entered Australia as a minor - appeal from Administrative Appeals Tribunal - whether Tribunal failed to exercise its own independent judgment - whether evidence that applicant "influenced towards criminal activity by being exposed to bad influences within Australia" - whether any evidence of likely harm to Australia's international reputation if deportation - necessity for evidence or other material to support any finding that effect on Australia's international reputation would do "more harm to the Australian community than" danger of further serious crimes - Tribunal's duty to assess whether an unacceptable level of risk of further serious crimes by applicant - Tribunal not bound to take into account application for Australian citizenship nor existence of new Migration Regulation.
Migration Act 1958 s. 55
Migration Regulations 36(1)(b)
Re Salazar Arbelaez v M.I.E.A. (1977) 1 ALD 98
Re Gogebakan and M.I.E.A. (1987) 6 AAR 544
Re Ameri and M.I.L.G.E.A. (1989) 16 ALD 640
Re Percerep and M.I.L.G.E.A. (1990) 2 ALD 669
HEARING
MELBOURNE
#DATE 28:6:1991
Solicitors for Applicant : Messrs. Slades
Counsel for Applicant : Mr A. Cavanough and Mr D. Meadows
Solicitors for Respondent : Australian Government Solicitor
Counsel for Respondent : Mr R.R.S. Tracey
ORDER
The Court orders that the appeal from the decision of the General Division of the Administrative Appeals Tribunal, given on 2 January 1991, affirming the decision under review, be dismissed.
The applicant pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a decision ("the decision") of the Administrative Appeals Tribunal ("the Tribunal") constituted by Mr Deputy President Forrest, given on 2 January 1991, affirming the decision, made by a delegate of the respondent Minister on 12 July 1989, to order the deportation of Mr Mustafa Gumus ("the applicant"). The factual background set out in the Tribunal's reasons for decision has not been challenged and need not be repeated here.
The court's function is limited to hearing the appeal on questions of law. As Deane J. said in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325 at 333:
"This Court is not entrusted with the duty or power to conduct a review on the merits of the Minister's decision on the question of deportation of an alien. That power and duty is entrusted to the Administrative Appeals Tribunal and to that Tribunal alone. The gravity of the consequences of the deportation of the applicant, to the applicant himself, to his wife and to their four Australian children leads inevitably to a desire to ensure that the applicant has access to every legitimate avenue of appeal. It cannot, however, warrant the court's purporting to arrogate to itself a jurisdiction which it does not possess."
The question of what weight should be given to "government policy" or to any other relevant consideration is a matter for the Tribunal to determine in the light of all the circumstances. As Bowen CJ. and Deane J. said in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-421:
"It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case." Ground (a) of the grounds of appeal was in the following terms: "(a) The Tribunal erred in law by attaching such importance to ministerial policy statements as to result in a failure by the Tribunal to exercise its own independent judgment."
During his reply, Mr Cavanough, of counsel, who appeared with Mr Meadows, of counsel, for the applicant, referred to that ground as "our principal submission". I have read the transcript of Mr Cavanough's submissions in support of this ground, and his reply; they included a very detailed examination of the Tribunal's reasons and a consideration of them in the light of observations made by members of Full Courts of this Court.
In my opinion an examination of the Tribunal's reasons for decision does not establish that, as contended in ground (a), the Tribunal attached "such importance to ministerial policy statements as to result in a failure by the Tribunal to exercise its own independent judgment". It was the Tribunal's own judgment that Mr Gumus was "an unacceptable risk, and that it would be in the best interest of Australia that he be deported". That judgment was expressed after examining various factors. Those factors included, on the one hand, the nature of the offence for which the applicant was convicted on 3 October 1983 and the risk of recidivism in the light of all the circumstances, including crimes committed by him at later dates. On the other hand the Tribunal considered the applicant's prospects of rehabilitation (cf. its reference to the evidence of Ms Bryant), his family ties in Australia, his length of residence in Australia, the hardship to him and to his family if he were to be deported and his contribution to the Australian community.
The Tribunal gave detailed consideration to "the effect (of deportation) upon the applicant's children" and said that the applicant's de facto wife had "made an impression of being a sincere well-intentioned woman"; it later said, referring to her:
"I accept her evidence as to her hopes and aspirations for the future and the devastation she would feel if the applicant were to be deported. I also accept she intends to remain in Australia and bring up her daughter here irrespective of the outcome of this application."
The Tribunal expressly considered the factor of "the extent of the contribution to the Australian community by Mr Gumus" and found that that contribution "has been slight".
In Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at 100, Brennan J., referring to the case of a migrant convicted of supplying and selling heroin, said:-
"The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk."
In the present case the Tribunal's judgment was that Mr Gumus was "an unacceptable risk". As I have already said, in my opinion it is clear that that judgment was the Tribunal's own independent judgment.
I am unable to uphold Mr Cavanough's submission "that the tribunal gave such paramountcy to the ministerial policy statement as to result in a failure to exercise the tribunal's own discretion". The Tribunal in its reasons for decision referred to the decision of Hartigan J., in Re Richard Loh and Minister for Immigration, Local Government and Ethnic Affairs (1990) 11 AAR 150. The reasons for decision in that case included the following passages (at 154):-
"The Tribunal, for its part, is not under any statutory duty to regard itself as being bound by that policy. As was pointed out in Drake's case ((1979) 46 FLR 409) the Tribunal is entitled to treat such Government policy as a relevant factor in the determination of an application for review of that decision. The Tribunal, in its review of a decision, must pay regard to what is a relevant and proper factor in the making of the decision itself. The existence of the policy and the contents of that policy then are plainly relevant factors for the Tribunal to take into account in reviewing the decision here. What must be remembered is that the Tribunal, in the absence of specific statutory provision, is not entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable decision. That question cannot be answered solely by determining whether the decision made conformed with whatever the relevant Government policy might be." (emphasis added)
Those reasons also quoted (at 155) the following passage, from Brennan J. in Re Drake (No. 2) (1979) 2 ALD 634 at 640-642:-
"The Minister must decide each of the cases under ss. 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of the specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of ss. 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.
.... In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal's duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses or no policy at all, in fulfilling its statutory function." (emphasis added)
The Tribunal described the reasons for decision in Re Loh as reviewing "the application of Ministerial policy by the Tribunal". In the light of the Tribunal's reasons for decision and the passages which I have quoted above from those reasons, I am unable to accept the applicant's submission that the Tribunal misconstrued the policy and wrongly regarded it as imposing a "fetter on the discretion of the Tribunal to consider what is in the best interest of Australia in the individual case". In my opinion the Tribunal was well aware that it could not "abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable decision" and did not abdicate its function.
Mr Cavanough referred to the statement by the Tribunal that it "is required to take into account Ministerial policy", but that statement was doubtless based upon the passage in Drake (supra at 420) where Bowen CJ. and Deane J. said:
"If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision."
In my opinion ground (a) of the notice of appeal cannot be upheld.
Ground (b) of the grounds of appeal was amended at the hearing by leave, granted without objection. As so amended, it stated that the Tribunal failed to take into account four relevant considerations which it was bound to take into account. The first "relevant consideration" was:
"(b)(i) the submission on behalf of the applicant and the material in support thereof to the effect that the applicant was a child of tender years when he came to Australia and was influenced towards criminal activity by being exposed to bad influences within Australia."
I accept the submission by Mr Tracey, of counsel, who appeared for the respondent Minister, that an examination of the Tribunal's reasons for decision shows that that submission and the material supporting it, together with the other factors supporting a decision favourable to the applicant, were taken into account, and were weighed in the balance by the Tribunal before it reached its conclusion, adverse to the applicant. In my opinion ground (b)(i) fails.
It may be added that there was very little evidence relevant to the submission that the applicant "was influenced towards criminal activity by being exposed to bad influences within Australia". The evidence included the following passages in the answers of the applicant to his counsel:-
"How did you start getting involved with committing criminal offences?---They are a first time? (sic) Yes?---Well, after I left school I was angry with - - - Could you please try to speak up, just a little louder?---I was - I was hanging around with Australian people, mainly European, and sort of, that is why I got involved in troubles. Now where were these - how old were these people you were hanging around with?---The same age as me; they were about 15, 16. And where did you know them from?---From Richmond flats in Richmond. That is the Housing Commission flats?---That is right. And is that where you were living at that time?---That is right."
During cross-examination, the applicant's evidence included the following passage:
"You told the tribunal in the documents on several occasions that you believed that your problem has been that you got in with the wrong crowd; is that right?---Yes. Do you take responsibility for any of those crimes that you committed?---What do you mean by that?
Do you believe that you played a role in those crimes, or was it just that your friends made you do it?---Well, I got involved with them.
Yes, you got involved with them, but did they make you do it or did you do it of your own volition?---Well, they were all doing it so I done (sic) it too."
The "relevant consideration" referred to in ground (b)(ii) was as follows:-
"(ii) the risk that Australia's international reputation will be harmed by the maintenance and implementation of a policy which readily allows the deportation of persons who were children of tender years when they came to Australia and later committed crimes, having been influenced by bad elements to which they were exposed within Australian society".
I accept the submissions of the respondent's counsel (a) that this matter was not one which the Tribunal was bound to take into account and (b) that it was not put to the Tribunal that there was any evidence or other material before it upon which it could make the findings of fact required in order to support the submission. In my opinion there was no evidence or other material before the Tribunal that there was any such "risk that Australia's international reputation will be harmed by the ... implementation of a policy which readily allows the deportation of (such) persons who ... later committed crimes, having been influenced by bad elements to which they were exposed within Australian society".
The applicant's submissions referred to three decisions of the Tribunal. In Re Gogebakan and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544 at 547 Mr Deputy President Bannon QC, in recommending that a deportation order be revoked, said:-
"It appears to me that if Australia is prepared to accept migrants with children of tender years, it is not reasonable to deport to foreign lands the child of an Australian citizen simply because that child is a criminal and was born in a foreign country and is not naturalised. It is neither compassionate nor in the best interests of Australia to deport children arriving as migrants because of later crimes."
The reference to deporting "children" is a reference to persons who had been children on arrival in Australia. The applicant in that case, who was 25 years old at the time of the hearing, was described by the Tribunal as having "a very bad criminal record" and as one who "may offend again" - the latter being a matter which the Tribunal regarded with "considerable anxiety". Notwithstanding those observations, the Tribunal did not explain on what basis it concluded that it was not "in the best interests of Australia" to deport persons who arrived as "children" but later have been convicted of serious crimes. In my opinion there are great difficulties in reconciling that statement with the principle enunciated by Brennan J., in Re Salazar-Arbelaez (set out earlier in these reasons), that it is the "duty of the Tribunal ... to assess whether a particular applicant ... is at an unacceptable level of risk"; see also Re Loh (supra - at 162) where the Tribunal stated that the risk of recidivism is a matter which must be considered by the Tribunal.
In Re Ameri and Minister for Immigration, Local Government and Ethnic Affairs (1989) 16 ALD 640 at 648-649 Mr Deputy President Thompson, in recommending that a deportation decision be revoked, said:
"(30) ... who had come to Australia as children of tender years and who had become criminals in Australia because they had been corrupted during their formative years by malign influences emanating from within the section of Australian society in which the circumstances of their parents as immigrants had caused them to live. If that were the policy and its existence became known generally throughout the world, it would attract such obloquy as would do more harm to the Australian community than the continued presence in it of those offenders. ... But, where he has been turned into a criminal entirely by influences from within Australian society, it would be an imposition on that country to return him to it and the good of the Australian community requires that it takes responsibility for him."
The reasons for decision did not refer to any evidence or other material in support of the opinions expressed in that passage. It is, of course, plain that those opinions - even if supported by evidence or other material - were not in any sense binding upon the Tribunal hearing the case presently under appeal, or hearing any other cases; it would be necessary that there be evidence or other material in any such case before the Tribunal could make the findings of fact required in order to form such opinions.
The above passage from Re Ameri (at 649) includes statements that:
(a) "If that were the policy ("dumping on to other countries criminals who had come ... as children of tender years") and its existence became known generally throughout the world, it would attract such obloquy",
(b) "as would do more harm to the Australian community than the continued presence in it of those offenders",
(c) "it would be an imposition on that country to return him to it",
(d) "the good of the Australian community requires that it takes responsibility for him" (emphasis added).
It is difficult to imagine what evidence or other material could support those four statements by the Tribunal. As to (a) and (b), assuming that there was evidence or other material (although it is not cited by the Tribunal in its reasons), which satisfied the Tribunal that "such obloquy" would exist, presumably the Tribunal then attempted to compare the harm from the "obloquy" with the harm from "the continued presence in it of those offenders", even if the Tribunal had found that they were likely to commit further serious crimes in Australia. Such a comparison and weighing of the two potential "harms", would, in my opinion, be extraordinarily difficult, if not impossible. However, without such a comparison and weighing, the Tribunal could not reach the conclusion that the "obloquy would do more harm to the Australian community than the continued presence in it of those offenders".
It is simply not clear what is the basis for that assertion by the learned Deputy President, which is not supported by any evidence referred to in the reasons. It may be added that the assertion is preceded by the Tribunal's statement (p 647 paragraph 25) that "the risk of the applicant continuing to commit offences of that type must be regarded as substantial"; the "offences of that type" were said to include burglary, aggravated burglary and armed robbery in company and the Tribunal had added that "the totality of all those serious offences in aggregate must be a matter of considerable concern to the Australian community".
In the light of the above statements in Re Gogebakan and in Re Ameri, it should be made clear that it would be open to the Tribunal, in the exercise of its discretion, to give much greater weight to the likely danger to the Australian community (if an applicant committed further serious crimes) than to the possibility of "obloquy" doing "harm to the Australian community"; this would only arise in a case where there was evidence or other material of any such obloquy and resultant harm.
It is possible that Mr Deputy President Thompson in Re Ameri may have made a finding of fact, based upon evidence or other material before him in that case, that the applicant had "been turned into a criminal entirely by influences from within Australian society", and, further, that those influences "corrupted him so that he adopted the criminal lifestyle that he has led now for many years" (emphasis added). However, there was no such finding of fact in the present case and in my opinion there was no evidence which would have supported such a finding if it had been made.
In Re Percerep and Minister for Immigration, Local Government and Ethnic Affairs (1990) 20 ALD 669 Mr Deputy President Thompson, in recommending that a deportation order be revoked, made it clear that he was referring to applicants "who have become criminals ... because they have been corrupted during their formative years by malign influences within Australian society" (emphasis added). He referred to "the likely harm to Australia's international reputation if it persistently dumps on to other countries ... (such) criminals". I am not aware as to what was the evidence or other material before the Tribunal in that case in support of a finding: (a) that "harm to Australia's international reputation" is likely or (b) that persons "have become criminals ... because they have been corrupted ... by malign influences". In the present appeal there were no such findings of fact and in my opinion the statements by the applicant to the Tribunal, and during interviews, as to his association with persons of the same age as himself, would not have supported the making of any such findings.
It may be added that in Re Percerep the learned Deputy President also said:
"Undoubtedly, the interests of Australia extend to its international reputation as well as to the maintenance of law and order within the country."
That statement must be considered in the light of the principle enunciated by Brennan J. (set out earlier) as to the Tribunal's duty to assess whether a particular applicant is at "an unacceptable level of risk".
Ground (b)(ii) is rejected.
The "relevant consideration" referred to in ground (b)(iii) of the grounds of appeal was:
"(iii) the fact that the applicant had attempted to obtain Australian citizenship."
In my opinion the Tribunal was not bound to take into account this matter. In any event, as Fox, McGregor and Morling JJ. said in Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621:
"It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention. It is not in anyone's interests that the judge or Tribunal be expected to set out every consideration which passes through his mind, although some, and usually the most significant, will be expressly dealt with."
Ground (b)(iii) cannot be upheld.
The "relevant consideration" referred to in ground (b)(iv) was in the following terms:
"(iv) the fact that after the publication of the Ministerial policy statements to which the Tribunal referred the relevant law was changed by the introduction of regulation 36(1)(b) of the Migration Regulations."
I accept the submission of Mr Tracey, on behalf of the respondent, that this was not a matter that the Tribunal was bound to take into account and it may be added that the Tribunal was not asked to take it into account. I also accept his submission that it can not be assumed that the Tribunal did not take that matter into account cf. passage from Steed, cited earlier. In my opinion ground (b)(iv) cannot be upheld.
The "relevant consideration" referred to in ground (b)(v) was in the following terms:-
"(v) That on 9 February 1985 the Minister made a considered decision not to order the deportation of the applicant pursuant to s. 12 of the Migration Act 1958 on the basis of his convictions on 3 October 1983 and 1 April 1984 in the County Court of Victoria but instead advised the applicant that he would be deported if he offended again and became liable. Inconsistently with these decisions, the deportation order under review by the Tribunal, which was made on 12 July 1989, was made on the basis of the said convictions and was made notwithstanding that the applicant had not become liable to deportation on the basis of any further offences, the period of 10 years prescribed by s. 12 having expired prior to the commission by the applicant of any further relevant offences. The Tribunal did not have regard to these matters nor to the unfairness and inconsistency of the decision to deport the applicant in these circumstances."
In my opinion there was no inconsistency between the decision of the Minister on 9 February 1985 "not to order (your) deportation" and directing that the applicant "be warned that you will be deported if you offend again and become liable" (on the one hand) and the deportation order under review, made on 12 January 1989, (on the other hand). Nor was there any "unfairness" in the later decision to deport the applicant. The respondent's counsel pointed out that this matter was not advanced by the applicant before the Tribunal. The Tribunal was aware of, and in its reasons referred to, the letter relating to the Minister's decision on 9 February 1985 to "warn" the applicant; it was also aware of the earlier warning to the applicant in May 1977.
The Tribunal found that the "applicant believed, at the time of the second warning in 1985, that because he was married to an Australian he could not be deported". On that finding it is clear that the applicant was not misled in any way by the wording of the Departmental letter referring to the Minister's decision on 9 February 1985. Ground (b)(v) cannot be upheld.
The applicant having failed on each of the grounds advanced, this application must be dismissed and the applicant will be ordered to pay the respondent's costs of this appeal.
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