Kiet, Vo Tuan v Immigration and Multicultural Affairs

[1998] FCA 706

FEDERAL COURT OF AUSTRALIA

MIGRATION LAW - Criminal deportation - Application for extension of time to appeal to Court against a decision of the Administrative Appeals Tribunal - Whether appeal has reasonable prospect of success - Whether Tribunal erred in law in proceeding with appeal notwithstanding that applicant was not legally represented - Whether Dietrich principle applies to administrative proceedings - Whether Tribunal failed to consider hardship - Absence of psychological evidence - Treatment of interests of applicant’s child as a primary consideration.

Dietrich v The Queen (1992) 177 CLR 292
Migration Act 1958, s 200

VO TUAN KIET V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG338 of 1998

JUDGE:         WILCOX J
PLACE:         SYDNEY
DATE:           5 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG338 of 1998

BETWEEN:	VO TUAN KIET Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE	WILCOX J
DATE OF ORDER:	5 JUNE 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for extension of time to appeal be dismissed.

1. The applicant, Vo Tuan Kiet, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG338 of 1998

BETWEEN:	VO TUAN KIET Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	5 JUNE 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an application for an extension of time for the filing and service of a notice of appeal to the Court against a decision of the Administrative Appeals Tribunal. 

The applicant for extension, Vo Tuan Kiet, is a national of Vietnam who has lived in Australia since May 1983, when he arrived as a 15 year old child and was accepted under the Indo-Chinese Refugee Program.  He attended school in Sydney for less than a year and subsequently had periods of both employment and unemployment before the first of a number of prison sentences.

The applicant is of course a non-citizen of Australia, within the meaning of the Migration Act 1958. At the time of the offences in respect of which a deportation order was later made against him, he had been in Australia for less than 10 years, excluding the time when he was in prison: see ss 201 and 204 of the Migration Act.

The applicant was most recently sentenced for a number of offences on 30 June 1994.  On the first count then before the District Court, he was sentenced for a minimum term of four years penal servitude commencing on 27 December 1993 and expiring on 26 December 1997.  He was given an additional term of three years commencing on 27 December 1997 and expiring on 26 December 2000.  The sentencing judge directed he would be eligible for release at the expiration of the minimum term, on 26 December 1997.

I understand the question of Mr Vo's release on parole was considered in December 1997; but it was decided he not be released at that time.  I am told he will go before the Parole Board again next week. 

A deportation order pursuant to s 200 of the Migration Act was made by a delegate of the Minister.  Mr Vo sought review of that decision by the Administrative Appeals Tribunal.  On 5 March 1997 the Tribunal, constituted by Deputy President McMahon, published a decision, with reasons, affirming the delegate's decision. 

Mr Vo had a right to appeal to this Court on a question of law, but any appeal was required to be filed within 28 days.  That means the time for appeal expired on 2 April 1998.  On 6 April 1998 a document was received in the Court Registry which was incorrect in form.  On the following day a Deputy District Registrar wrote to Mr Vo pointing out the error and providing the correct form.  This was completed and returned to the Registry, apparently on 20 April 1998.  By that time, the appeal was 18 days out of time.

When the  application for extension of time came on for hearing this morning, Mr N.J. Williams, counsel for the Minister, indicated the Minister opposed the application; but only on the basis there was no reasonable prospect of an appeal succeeding.  Mr Williams did not wish to contend the Court should refuse an extension, if the Court thought there was substance in the appeal.  This was a fair and sensible approach to the matter and I have concerned myself with the question whether there is substance in the appeal.

If I had reached the view there was substance in the appeal, I would have extended the time.  The delay was not great; it was probably caused by incorrect, although well-meaning, advice given to the applicant.  There is no reason to think any prejudice was caused to the Minister by reason of the relatively short delay.  On the other hand, of course, if the appeal has no reasonable prospects of success, it would be wrong to extend time to allow it to be litigated. 

Mr Vo has not been legally represented today, but he has had the benefit of assistance from an interpreter.  I express gratitude to her for the assistance she has given and is giving.

Mr Vo also had assistance, I gather, from a parole officer as to the points he should raise for the Court's consideration.  Six points are set out on the notice of appeal.  I have been through these points with Mr Vo in order fully to understand what he wishes to say about them.  I think I understand each of those points.  Mr Vo indicated, at the end of that exercise, there were no other matters he wished to raise.  He emphasised to me he feels that, if he were not deported but allowed to remain in Australia after his release from prison, he could demonstrate he would not re-offend and be an asset to the Australian community.

I understand his point of view and I do not question his sincerity.  However, as I said to him, this is not a matter for the Court to evaluate.  It was a matter for consideration by the Tribunal.  The Tribunal reached a conclusion about it, contrary to the case put by Mr Vo, but for reasons that it expressed.  I can well understand Mr Vo being disappointed that the Tribunal held against him in regard to that matter, but it was open to the Tribunal to take the view it did.  The only question for me is whether it fell into any error of law in reaching its conclusions.  I will deal relatively briefly with each of the six points. 

The first point raised in the notice of appeal is undoubtedly a question of law, although I think it is without merit.  The point is framed in this way:

“The appeal should not have been heard without legal representation afforded the applicant in accordance with the Dietrich principle as enunciated by the High Court.

The reference, of course, is to the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292. In that case a majority of the High Court held there had been a miscarriage of justice because an accused person had been denied a postponement of a criminal trial under circumstances where he was unable to procure legal representation. The Court made the point it was concerned with a criminal prosecution for a serious offence and held there will generally be a denial of justice where a person, being prosecuted for such an offence who desires legal representation, is forced to trial without the benefit of legal representation.

I do not think the principle has any application to civil litigation or to administrative appeals.  No doubt it would be of great benefit to people who appear before administrative tribunals, such as the Administrative Appeals Tribunal, the Immigration Review Tribunal or the Refugee Review Tribunal, if there was a system in place to provide them with legal representation, either without cost or at such cost as they could afford.  Unfortunately, that is not the system.  This creates problems for tribunals, as it does for courts.  It may mean the case of the unrepresented person is not put forward to best advantage; but it is another matter to say it was an error of law for the Tribunal to proceed in Mr Vo’s case without him being legally represented.

It must be remembered the proceeding before the Tribunal was the applicant's own appeal.  He instituted the proceeding;  he wished the Tribunal to review the decision to make a deportation order against him.  In that situation, it is difficult to see what alternative the Tribunal had but to proceed with the appeal.  It would be a major extension of the principle applied in Dietrich to extend it to a situation such as this.  I see no warrant for the Court taking that course.  Accordingly, although I agree this is a question of law, I do not think the Tribunal erred in proceeding with the appeal, despite the fact Mr Vo was not legally represented.

I should add, for the sake of completeness, that Mr Vo told me this morning he did not seek from the Tribunal an adjournment of the hearing because of his lack of representation.  Accordingly, the point was not raised for the Tribunal's consideration. 

The second point listed in the notice of appeal is framed in these terms:

“The Tribunal did not adequately consider the hardship factors on the appellant resulting from the respondent being unable to carry out the deportation order in a reasonable time or at all.”

When I asked Mr Vo to explain this ground he indicated that he was not able to say anything further about it, that it had been suggested to him by the parole officer.  I asked Mr Williams about the practicality of a deportation to Vietnam.  Vietnam is Mr Vo's birthplace and the country of which he is a citizen.  Although the deportation order does not specify the country to which deportation shall be effected, the basis of the hearing before the Administrative Appeals Tribunal was that any deportation would be to Vietnam.  This was important to the Tribunal's decision for two reasons.  First, Mr Vo speaks Vietnamese.  If he were deported to a country other than Vietnam, there might be a serious language problem.  Secondly, Mr Vo has some siblings in Vietnam.  It is true he has not had contact with them for many years; nonetheless there are relatives who may be able to assist him to re-settle in that country.

I mention this matter because Mr Williams was not certain the Vietnamese government would accept Mr Vo.  This matter has yet to be explored.  It would be investigated at a high government level.  If the Vietnamese government is prepared to accept Mr Vo, no doubt the deportation order can and will be carried into effect.  If the Vietnamese government is not prepared to accept Mr Vo, it would be quite wrong for there to be a deportation to any other country.  I say this because such a deportation would ignore the basis on which the Tribunal decided to uphold the deportation order.

If it occurred that Vietnam would not take Mr Vo but some other country would do so, the only fair way to deal with the matter would be to revoke the present deportation order and make a fresh order which could be the subject of a further hearing by the Administrative Appeals Tribunal, if Mr Vo so wished.  Any such consideration would be on the basis that deportation would be to a country other than Vietnam.  It is conceivable the Tribunal would take a different view about that than the Tribunal took in the present case, where it assumed that deportation would be to Vietnam.

In making these observations, I do not for a moment suggest the Department, or any officer of the Department, has in mind taking a course that would be unfair to Mr Vo.  I simply record the basis on which the matter was considered in case some officer considering the matter in the future is unaware of this and might otherwise act on a different basis.

Except in the context I have just mentioned, I do not see any validity in the criticism that the Tribunal did not adequately consider the hardship that would be faced by Mr Vo if the respondent was unable to carry out the deportation order

The third point is that the Tribunal failed to make reference to the positive rehabilitation of the applicant whilst in prison.  I do not think this is correct.  The Tribunal did deal with the applicant's behaviour in prison.  Unfortunately for him, the Tribunal was not impressed by the account of his behaviour that was given by his case manager and the prison governor.  The net result of consideration of this issue was adverse to the applicant.  The applicant is unhappy about that conclusion but it was a conclusion of fact.  It is not a matter for this Court.  It cannot be said the Tribunal failed to take account of this important consideration.

The fourth point is that the Tribunal mis-stated the evidence given by the applicant in saying the applicant continues to smoke cannabis.  It appears the applicant was asked at the hearing about his use of drugs.  He said he had not taken heroin since 1993.  Mention was made of the fact that there had been a positive result from urine samples in May 1996.  The applicant said this was from marijuana which he was then using.  He added he no longer used marijuana.  This was at a hearing which took place in February 1998, that is to say some 21 months after the urine samples. 

In his reasons for decision, Mr McMahon used the present tense in saying the applicant used cannabis.  He did this in the context of making the point that the applicant apparently no longer used heroin.  I think it is a legitimate criticism of the Tribunal's decision to say it misstated the evidence in this connection.  However, it was a misstatement of fact and I do not think there is any basis for this Court to interfere with it.  I also am of the opinion that it was a very minor matter.  It is difficult to see it could possibly have affected Mr McMahon’s decision.  The reasons he gives for concluding the delegate’s decision should be affirmed have nothing to do with the question whether or not Mr Vo was still using cannabis at the time of the hearing.  They are regrettably much more weighty than that.

The fifth point was expressed in the notice of appeal in these terms:

“The Tribunal had no scientific basis such as a report from a psychologist to find that the risk of re-offending was high, rather it relied upon unqualified observations of prison officers who may well be biased in their views.”

I understand from Mr Vo that no psychological evidence was put before the Tribunal.  This is consistent with the fact that none is referred to in the reasons for decision.  Mr Vo seems to put the case that the Tribunal should have insisted upon psychological evidence but I think this misunderstands the nature of the Tribunal's role.  The Tribunal's task is to evaluate such evidence as the parties choose to put before it. 

It must often happen, as indeed it happens in court, that evidence that may have been helpful is not put before the Tribunal.  The Tribunal must do the best it can on the material it has.  No doubt it would have been useful to have had some psychological evidence; in its absence, the Tribunal had to evaluate the risk of recidivism - which is undoubtedly a most material matter - by reference to such evidence as was available.  Mr McMahon did this.  He considered Mr Vo's own evidence and the evidence of a number of other people who could cast light upon his previous history, his performance in prison and his current attitude.  Doing the best he could, Mr McMahon concluded there was a substantial risk of Mr Vo re-offending.  This was a conclusion of fact that was open to the Tribunal.  It lacked the prop of expert psychological evidence but, having no such evidence, Mr McMahon had to reach a conclusion on the material he did have.  I see no error of law in this regard. 

The sixth and final point is raised in the notice of appeal in these terms:

“The Tribunal unfairly considered the  speculated risk of reoffending in accordance with the Kabel decision as ruled by the High Court.”

The reference is obviously to the decision of the High Court in Kabel v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. When I asked Mr Vo about this, he was unable to provide any amplification or assistance. I think it is sufficient to say the decision in Kabel has nothing to do with the current case.  There is nothing in Kabel that would incline me to the view the Tribunal fell into error of law.

I would have preferred to have had Mr Vo's case presented by a lawyer, but this apparently has not been possible.  However, I have gone through the points that were raised on his behalf in the notice of appeal.  I have had the benefit of assistance from Mr Williams in ascertaining what happened in the hearing before the Tribunal. I also carefully considered the Tribunal’s reasons for myself, before coming into Court, knowing the applicant would not be represented.  Having done all that, I am satisfied there is no error of law in the Tribunal's reasons.

It seems to me the Tribunal addressed all the relevant questions.  I should say it appears the applicant is the father of a child, apparently now about 10 years old.  The Tribunal carefully considered her position if the deportation order was carried out.  Notably, Mr McMahon treated the position of the child as being a primary matter for consideration; he did not merely note the existence of the child but sweep aside her needs and interests because of the need to protect the Australian community.  It seems to me this was the proper approach.

Having considered the decision as a whole and all the matters that have been put, it seems to me the proposed appeal is hopeless.  For that reason, I should decline to extend the time.  I order that the application for extension of time be dismissed with costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:             5 June 1998

Applicant in person
Counsel for the Respondent:	N J Williams
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 June 1998