Huynh v Minister for Immigration and Multicultural Affairs

[1999] FCA 1007

FEDERAL COURT OF AUSTRALIA

Huynh v Minister for Immigration & Multicultural Affairs [1999] FCA 1007

HOAN QUAN HUYNH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Q 94 of 1999

DOWSETT J
20 JULY 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 94 OF 1999

BETWEEN:	HOAN QUAN HUYNH Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	DOWSETT J
DATE OF ORDER:	20 JULY 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pays the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 94 OF 1999

BETWEEN:	HOAN QUAN HUYNH Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	DOWSETT J
DATE:	20 JULY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The appellant was born on 6 July 1967 and is a citizen of Vietnam. He arrived in this country on 21 June 1985 - that is, just before his 18th birthday. Other personal factors appear in the reasons of the Administrative Appeals Tribunal from which this appeal is brought. He has a family in this country, including a de facto wife and a son. The son was born on 2 May 1995, at which time the appellant was already in gaol. Relevantly, he was convicted on 16 July 1996 of carrying on the business of trafficking in heroin and of numerous counts of supply of heroin. He was sentenced to 12 years' imprisonment. These offences occurred in 1994. Whilst he was on bail for those offences, he committed other offences of supply of which he has also been convicted and sentenced. All sentences were concurrent. He is presently still in custody.

2. Pursuant to s 200 of the Migration Act 1958 (Cth), the Minister, by his delegate, has ordered that the appellant be deported upon the grounds specified in s 201, namely that at the relevant time he had not been a permanent resident of Australia for 10 years or more and that he has been convicted of an offence and sentenced to imprisonment for a period not less than one year. It is not disputed that the decision was subject to review by the Administrative Appeals Tribunal. It is also not disputed that in the Tribunal's review of the decision it was appropriate to take into account guidelines issued by the Minister as General Direction - Criminal Deportation - Number 9, although it appears that these guidelines were issued after the Minister's decision, but before the Tribunal's decision.

3. Those guidelines specify the circumstances in which deportation will be considered as a consequence of a criminal conviction.  In particular, such circumstances include the expectations of the Australian community and, in cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.  Other relevant considerations are the degree of hardship which may reasonably be expected to be suffered by the potential deportee and the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from such deportation.  The guidelines say that the Australian community expects that it will be protected and not put at risk, and that non-citizens convicted of crimes abhorrent to the Australian community will be removed from Australia.  The expectations of the community are said to be dependent upon the seriousness and nature of the crime, the risk of recidivism and the likelihood that deportation of the potential deportee will prevent or discourage similar offences by other persons.

4. Certain offences are identified as being very serious, including the present offences.  In considering recidivism, the guidelines indicate that it will be appropriate to consider any warning of deportation prior to the commission of the offence in question, any criminal history of offending and the extent of rehabilitation already achieved.  In the present case it is said that the Tribunal erred with respect to the question of the expectations of the Australian community by placing upon the appellant the onus of establishing that he was not at risk of offending again.  The appellant asserts that the onus of establishing risk of recidivism is upon the Minister, relying apparently upon the decision in Re Pochi (1978-79) 2 ALD 33, a decision of Brennan J, as his Honour then was. Whilst it may be accepted that the Minister bears the onus of establishing the conditions precedent to deportation as specified in s 201, that does not lead to the conclusion that he bears an onus with respect to every factual matter which may be raised as relevant to the issue of deportation. The Tribunal was obliged to consider the seriousness of the offence and the risk of recidivism among other factors, and seems to have done so.

5. As Brennan J said in Re Salazar-Arbelaez (1977) 18 ALR 36, the Tribunal was obliged to assess the level of risk of recidivism. Such an assessment can only be based upon the offender's previous history and such evidences as there may be of his rehabilitation. This man engaged in the supply of heroin on a number of occasions, including whilst he was on bail. Such a degree of determination in criminal misconduct is a weighty basis for an inference that should the need again arise, he would be willing to offend again. As is pointed out, he committed these offences whilst he knew his partner was pregnant. That seems to have been taken as suggesting even more reprehensible conduct, no doubt upon the basis that he abdicated his responsibilities towards his partner and the unborn child at a time when they needed his support. Another view might be that the impending financial consequences of confinement and paternity prompted his attempt to improve his financial position by involving himself in drug-related activities.

6. This case did not pose any serious question concerning onus of proof.  The fact of the matter was, and is that the appellant committed a series of very serious offences in 1994 and similar offences whilst on bail.  He was dealt with for them in 1996 and has not yet completed his prison sentence.  Had he been at large for many years without re-offending, the position may have been different.  Had it been the case of one isolated incident, again the position may have been different.  It seems to me, however, that the facts as established were sufficient to justify an inference that there was an unacceptable risk of his offending again.  This was only one factor to be taken into account, together with the others to which I have referred.  I can see nothing untoward about the way in which the Tribunal has dealt with this matter.  The real criticism appears to arise from the fact that in introducing the remarks about recidivism, the Tribunal commenced by saying:

   I should add that I am not satisfied that this man, if released, will not again engage in such conduct if financially embarrassed.

   The appellant fixes upon this statement as a direction in law that the appellant bore the onus of establishing that he would not offend again.  I think it more likely that the expression was a figure of speech.  It is very similar to words used by Brennan J in Salazar-Abelaez in a similar context.  I do not consider that the Tribunal misdirected itself as to the onus of proof.  

7. It is also said that the Tribunal did not give weight to, or relevantly take into account hardship to the appellant.  The likely sources of such hardship were expressly recorded in the reasons.  At p 2, there is a reference to his not knowing his father’s whereabouts in Vietnam.  At p 13 the absence of family connections in Vietnam in mentioned.  At p 14, which contains the principal statement of the reasons, the following passage appears:

   Thus on the one hand I cannot ignore the considerable hardship the applicant’s deportation will have on his family, particularly his son, who will grow up without a father, his close ties with this country, nor his exemplary record both in prison and before embarking on the deportable offence.

8. This indicates that the Tribunal was fully aware of the consequences of deportation to the appellant's family and to the appellant himself.  I am not persuaded that there has been any failure to give appropriate recognition to these facts.  The complaint relates only to the question of weight appropriate to particular considerations and is therefore unsustainable.  In the circumstances the appeal will be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             20 July 1999

Counsel for the Appellant:	Mr D C Rangiah
Solicitor for the Appellant:	N R Barbi
Counsel for the Respondent:	Ms C E Holmes
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 July 1999
Date of Judgment:	20 July 1999