Lai, S.S. v Minister for Immigration Local Government and Ethnic Affairs

[1991] FCA 131

Re: SIOELI SIU LAI
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G122 of 1991
FED No. 131
Immigration
13 AAR 255/28 FCR 346
(1991) 24 ALD 1

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Immigration - deportation - deportee convicted of assault - findings of sentencing judge - whether open to Administrative Appeals Tribunal to go behind findings - reasons of Tribunal - deportee living in de facto relationship - whether reasons disclose discrimination against deportee contrary to Sex Discrimination Act

Administrative Appeals Tribunal Act 1974, s.44

Sex Discrimination Act 1984, s.26(1)

HEARING

SYDNEY

#DATE 5:4:1991

Counsel for applicant: Mr S. Gageler
instructed by Elseworthy Jones

Counsel for respondent: Mr L. Katz
instructed by Australian Government Solicitor

ORDER

1. Appeal dismissed.

2. Applicant to pay the respondent's costs.

3. These orders are not to be taken out until after the expiration of seven (7) days from to-day's date.

4. The order made on 28 March 1991 is rescinded.

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 of the Administrative Appeals Tribunal, constituted by Deputy President C.J. Bannon, Q.C., affirming a decision made by a delegate of the respondent that the applicant be deported from Australia. Such an appeal may only be made to this Court on a point of law - vide s.44 of the Administrative Appeals Tribunal Act 1974.

1. Before adverting to the errors of law which are said to have been made by the Tribunal, it is convenient to refer briefly to the facts which led to the making of the decision that the applicant should be deported. The applicant arrived in Australia from Samoa in December 1981. In November 1982 he was convicted of a charge of manslaughter and sentenced to ten years penal servitude, with a non-parole period of three years. In September 1984 the applicant was warned that consideration would be given to his deportation should he be convicted of a further offence. In July 1985 he was released to parole. In April 1988 he was convicted of a charge of common assault. His parole was revoked, and he was sentenced to imprisonment with hard labour for 18 months. He was released from prison on 23 June 1989.

2. After his release from prison he had a brief association with a young woman, who conceived his child in January 1990. This child is now aged 5 months. His association with the mother of the child was short-lived and in February 1990 the applicant commenced an association with Cathy Stojko, a young woman aged 16 years. She is about four months pregnant with the applicant's child.

3. The charge of common assault in respect of which the applicant was convicted in April 1988 arose out of a brawl in an hotel. The applicant pleaded guilty to the charge and when he appeared before Ducker DCJ for sentence he did not contest the correctness of evidence which had been given at the committal proceedings. When sentencing the applicant, Ducker DCJ made the following, inter alia, observations:
   

"This case, like so many others, where drunken assaults are

involved, was attended by an atmosphere of confusion. It may

well be that a jury confronted with certain conflicts in the

evidence and the confusing nature of the events, not to mention

the conduct of the complainant himself, may have taken a lenient

view of these matters and acquitted the accused.

On the other hand, there was certainly evidence from which both

the prisoners could have, and probably, but by no means certainly,

would have, been convicted. ...

No statement of fact was tendered to the court in connection with

the plea, but the court was invited to find the facts for itself

by reading the transcript of the evidence from the committal

proceedings. That has been done."

1. After stating that the complainant, one Wilson, should "shoulder a great deal of the blame for the things that happened", that it was Wilson who committed the first aggressive act and that he was extremely lucky not to have been charged himself, Ducker DCJ said:
   

"This Court is quite satisfied that, during the time that (the

applicant and his brother) were assaulting Wilson, at one stage

Wilson was on the ground and, to use the colloquialism, `the boot

was put in.' The evidence does not permit this Court to say

whether it was put in by only one or by two and the evidence does

not permit this Court to say, if it was only by one, by which one.

It may be that there was no common purpose to kick Wilson."

1. However, these observations appear to have been made of events which took place at an early stage in the brawl. After stating that the later events were cloaked in confusion, Ducker DCJ went on to say:
   

"However, this Court is quite satisfied that Wilson was lying on

the ground being attended by one of the women, when (the

applicant) deliberately kicked him in the head. At that stage,

despite his earlier nasty, aggressive behaviour, Wilson was a

completely defenceless person. The court is quite satisfied on

the evidence of a number of witnesses that (the applicant) kicked

in the head a person who was then utterly defenceless."

1. In evidence before the Tribunal the applicant agreed that he punched Wilson whilst he was on the ground but he denied that he kicked him in the head.

2. In his Reasons for Decision Deputy President Bannon referred to the learned District Court Judge's finding that the applicant had kicked Wilson and to the applicant's denial that he had done so. He said that he considered that he could not go behind the learned judge's finding. It is reasonably plain from his decision that he regarded the fact that the applicant had kicked Wilson whilst he was on the ground as being conclusively established by the learned judge's finding.

3. Counsel for the applicant, who ably argued every matter which could be put in support of the appeal, submitted that Deputy President Bannon made a number of errors of law in reaching his decision. It was submitted that he erred in holding that he was precluded from considering the applicant's denial that he kicked Wilson. It was accepted in argument that the Tribunal could not proceed on the basis of facts which were inconsistent with the facts upon which the conviction must have been based. But this did not mean, so it was submitted, that the Tribunal was not required to consider the circumstances of the commission of the offence for the purpose of making its own assessment of the nature and gravity of the applicant's criminal conduct. Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653-654, 656 and 660- 661 and Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 at 215-216 and 233 were relied upon in support of the argument. In Daniele, Fisher and Lockhart JJ. said at p 653:
   

"The conviction is the genesis of the Minister's power to deport.

There are powerful reasons of public policy why the Tribunal

cannot ignore the conviction or seek to set it at nought. That is

not to say that the circumstances surrounding the commission of

the offence or matters relating to the trial itself cannot be

examined by the Tribunal. However, such examination is for the

purpose of enabling the Tribunal to make its own assessment of the

nature and gravity of the applicant's criminal conduct and not for

the purpose of assessing the propriety of the conviction or the

fairness of the trial. Whether these circumstances and matters

are susceptible of examination, and the extent of that inquiry,

will vary from case to case. The matters which the Tribunal is

called upon to determine are wider than and different from the

questions which a trial judge and jury must determine.

The Tribunal's task includes assessing the deportee's

character and personality, his criminal behaviour, the risk of

repetition of criminal acts, the likelihood of his rehabilitation,

the future risk to the Australian community if he remains here and

the likelihood of harm to him if he is deported.

Counsel for the applicant contended that the Tribunal in

performance of this task was bound to accept the conviction and

the facts necessarily found by the jury in reaching its verdict.

We agree that the Tribunal is bound to accept the fact of the

conviction as the source of jurisdiction and as a stigma affecting

the applicant's standing and credit in the community. However,

we cannot accept that the Tribunal is not entitled to examine for

itself all facts including those necessarily found by the jury."

1. In Gungor, Sheppard J, with whose reasons Fisher J expressed agreement, referred at p 231 to the last quoted extract from the judgment of Fisher and Lockhart JJ in Daniele in the following terms:
   

"For present purposes the most significant statement in the

judgment of Fisher and Lockhart JJ is that in which they say that

they cannot accept that the Tribunal is not entitled to examine

for itself all facts including those necessarily found by the

jury. That statement may suggest to some that the Tribunal is

entitled to examine facts necessarily found by the jury even where

such examination will lead the Tribunal to the conclusion that

such facts ought to be regarded as erroneously found and be put

aside because other evidence - called before the Tribunal but not

at the trial - would lead one to the conclusion that the jury or

trial judge acted, albeit understandably, on a wrong or mistaken

view of the evidence. But, in the light of what their Honours

have elsewhere said, I do not take them to be going so far.

Degerli v Minister for Immigration (23 December 1981) and earlier

cases relied upon by counsel for the applicant in the present

proceedings are against such a view of the law."

1. With respect, I agree with Sheppard J's observations.

2. In Commissioner of Australian Federal Police v Butler (1989) 91 ALR 293, Hill J, after observing (at p 302) that public policy prevents the court going behind a conviction said:
   

"It would indeed be a source of great embarrassment if a court in a

civil case could rehear a matter which had been passed upon by a

judge and jury and perhaps reach a conclusion contrary to that

reached after the trial. If the decision of the judge and jury in

a criminal case is to be challenged then that challenge must be

mounted by way of an appeal, the appeal being to the relevant

court of criminal appeal and not in a collateral way in civil

proceedings in another court."

1. I agree with Hill J's observations and I think they are applicable to the facts of the present case. It is plain that Ducker DCJ sentenced the applicant upon the basis of his conclusion that the applicant kicked Wilson whilst he was on the ground. That conclusion was not challenged by the applicant, as it might have been, had he been dissatisfied with the reasons given by the learned judge in passing sentence. In my view, public policy prevented the Tribunal from re-assessing the evidence accepted by Ducker DCJ and making a finding in respect of it contrary to the learned judge's finding.

2. That is not to say that it was not competent for the Tribunal to make its own assessment of the importance of the fact that the applicant kicked Wilson whilst he was on the ground. But it was obliged to accept, as it did, that that was what the applicant did.

3. I should add that there is not the slightest reason for thinking that the Tribunal would have reached a different conclusion had it been of the opinion that the applicant punched, rather than kicked, Wilson whilst he was on the ground. It seems plain from a reading of the whole of the Tribunal's reasons that it can be said with confidence that the Tribunal would have reached the same decision even if it had been satisfied that Wilson was punched, not kicked, whilst he was on the ground. In these circumstances, it would not have been appropriate to set aside the Tribunal's decision even if I had been of the view that it had erred in law on this ground.

4. It was also submitted that the Tribunal erred in law in giving weight to the consideration that the applicant had not yet married Ms Stojko. It was submitted that by referring to Ms Stojko as the applicant's "mistress" and to the relationship between the applicant and Ms Stojko as "immature", Deputy President Bannon acted on the basis of a consideration which was extraneous to objects the legislature has in mind: cf Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 at 12 per Stephen J and per Mason J at 17-18, and Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419 at 427 per Beaumont and Gummow JJ. I do not think there is any substance in this submission. The Tribunal might have chosen different words to describe Ms Stojko, and the words it used may have been unnecessarily hurtful to her and the applicant. But the Tribunal's description of her as the applicant's "mistress" does not establish that the Tribunal failed to fairly and dispassionately assess the relationship between her and the applicant.

5. It was further submitted that the Tribunal treated the applicant less favourably on his appeal than it would have treated him had he been married de jure and that it thereby breached s.26(1) of the Sex Discrimination Act 1984, which provides as follows:
   

"26. (1) It is unlawful for a person who performs any function

or exercises any power under a Commonwealth law or for the

purposes of a Commonwealth program, or has any other

responsibility for the administration of a Commonwealth law or the

conduct of a Commonwealth program, to discriminate against another

person, on the ground of the other person's sex, marital status or

pregnancy, in the performance of that function, the exercise of

that power or the fulfilment of that responsibility."

1. In my opinion this argument fails at its threshold. I do not think it appears from the Tribunal's reasons that it discriminated against the applicant or Ms Stojko on the ground of their de facto relationship. The references in the Tribunal's reasons to that relationship were properly made in the course of adverting to some of the considerations which were relevant to be taken into account in deciding the appeal.

2. It was further submitted that the Tribunal erred in law in failing properly to address the applicant's case that he had undergone rehabilitation. It is true that the Tribunal's reasons make only brief mention of the applicant's case that he had been rehabilitated. Nevertheless, it is reasonably clear from a reading of the Tribunal's reasons that the question of rehabilitation was considered, albeit not very favourably to the applicant. Thus the Tribunal referred to a submission made on behalf of the applicant that he had turned over a new leaf as regards drinking and that he had become a regular attender at church meetings. But in respect of this evidence the Tribunal expressed scepticism. It also expressed a lack of confidence in the applicant's future behaviour based upon his relationships with the mother of his first child and with Ms Stojko. Further, the Tribunal referred to the risk that the applicant may engage in further violent behaviour and this reference demonstrates that it must have considered the evidence as to the applicant's rehabilitation and as to the prospect of it being maintained in the future.

3. I do not think it has been shown that the Tribunal erred in law in reaching its decision. Accordingly the appeal must be dismissed.

4. One unfortunate consequence of the applicant being deported is that the interests of Ms Stojko and of the child which will soon be born will be adversely affected. It seems likely that the child will be significantly disadvantaged if it is permanently deprived of the influence which its grandparents would no doubt seek to exercise over her if they are able to do so. It is plain from Deputy President Bannon's reasons that he accepted them as worthy and caring people. If the child's mother and father leave Australia permanently the child will be permanently deprived of its grandparents' influence. It seems that Ms Stojko will accompany the applicant (taking the child with her) should he be deported. If he is deported, his prospects of returning to Australia will be very dim. On the other hand, if, albeit belatedly, he leaves Australia voluntarily and thereafter leads a blameless life in New Zealand or Samoa, his prospects of being permitted to re-enter Australia and make his home here may well be improved. If this occurred, the child's interests would be much advanced. For that reason, I propose to make orders which, whilst dismissing the appeal, will give the applicant the opportunity to leave Australia voluntarily and immediately should he wish to do so.

5. The orders I make are as follows:
   1. Appeal dismissed.
   2. Applicant to pay the respondent's costs.
   3. These orders are not to be taken out until after the
   

expiration of seven (7) days from to-day's date.

4. The order made on 28 March 1991 is rescinded.