Le v Minister for Immigration and Multicultural Affairs
[2000] FCA 1202
•29 AUGUST 2000
FEDERAL COURT OF AUSTRALIA
Le v Minister for Immigration & Multicultural Affairs [2000] FCA 1202
MIGRATION AND CITIZENSHIP – Deportation – review of AAT decision affirming deportation order – whether Tribunal failed to make material findings – whether Tribunal applied Ministerial direction – hardship – seriousness of offence – abhorrent conduct.
Migration Act 1958 (Cth), s 200, 201 and 499
Administrative Appeals Tribunal Act1975 (Cth)Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845,applied.
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583, considered.
Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161.HUI LE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 327 OF 2000
BEAUMONT, NORTH, GYLES JJ
SYDNEY
29 AUGUST 2000
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 327 OF 2000
BETWEEN:
HUI LE
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
BEAUMONT, NORTH, GYLES JJ
DATE OF ORDER:
29 AUGUST 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The applicant is to pay the respondent’s cost of and incidental to the appeal.
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
N 327 OF 2000
BETWEEN:
HUI LE
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
BEAUMONT, NORTH, GYLES JJ
DATE:
29 AUGUST 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
This is an appeal on a question of law from a decision of the Administrative Appeals Tribunal (the Tribunal) made by the President on 13 March 2000. The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs (the Minister) made pursuant to s 200 of the Migration Act 1958 (Cth) (the Migration Act) to deport Mr Hui Le, the applicant, from Australia.
The applicant was born in Vietnam on 14 January 1970 and arrived in Australia on 13 July 1988. Relevantly for the purposes of this appeal, the applicant was sentenced to periods of imprisonment exceeding one year in relation to offences which occurred on 19 February 1990 and 7 September 1997.
THE LEGISLATION
The Migration ActSection 200 and s 201 of the Migration Act provide as follows:
“200Deportation of certain non-citizens
The Minister may order the deportation of a non-citizen to whom this Division applies.
201Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes.
Where:
(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence:
(b)when the offence was committed the person was a non-citizen who:
(i)had been in Australia as a permanent resident:
(A)for a period of less than 10 years;
…
(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.”
Section 499 of the Migration Act gives the Minister power to give written directions. It provides as follows:
“499Minister may give directions
(1)The Minister may give written directions to a person or body
having functions or powers under this Act if the directions are
about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).”
The Administrative Appeals Tribunal Act
Section 43(2B) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act) provides:
“(2B)Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”
Section 44(1) of the AAT Act provides:
“(1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”
THE DIRECTION
Pursuant to s 499 the Minister issued a general direction concerning Australia’s criminal deportation policy entitled “General Direction – Criminal Deportation No.9” which had effect from 21 December 1998.
The preamble to the direction states that it is intended to provide guidance to decision makers in considering the making of deportation decisions under ss 200 and 201 of the Act.
The direction specifies two primary considerations and two other considerations. It then states that “a decision maker should have due regard to the importance placed by the Government on the two primary considerations, but should also adopt a balancing process that takes into account all relevant considerations.” (par 5)
The primary considerations set out in par 6 are:
a)the expectations of the Australian community; and
b)in all cases involving a parental relationship between a child or children and the potential deportee, the best interest of the child or children.
The two most common other considerations set out in par 7 are:
a)the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and
b)the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation.
In relation to the expectations of the Australian community as a primary consideration in par 8 the direction refers to two aspects, namely:
a)the expectation that the community will be protected and not put at risk; and
b)the expectation that non-citizens who commit / are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
Then in relation to the first of these two aspects the direction states:
“9 It is the Government’s view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime. In particular, it is the Government’s view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community. The Government considers that children and young people are especially at risk in this area. The Government acknowledges that it has a heavy responsibility to ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. A decision maker should have due regard to the Government’s view in this respect.
10. It is the Government’s view that the following factors are relevant to an assessment of the level of risk to the community and the need for its protection:
(a)the seriousness and nature of the crime;
(b)the risk of recidivism; and
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
Decision makers should have due regard to the Government’s view in this respect.”
The direction then addresses each of the factors referred to in par 10. In par 11 the direction lists the offences which are considered by the Government to be very serious and includes armed robbery (sub-section d), crimes against children (sub-section k), and any other crimes involving violence or the threat of violence (sub-section l).
Paragraph 13 addresses the factor of the risk of recidivism as follows:
“13. It is the Government‘s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. Decision makers should have due regard to the Government’s view in this respect. In particular the following factors will be relevant to the assessment:
(a)the person commits a further offence after having been warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case;
(b)a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
(c)the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.”
Under the heading “Community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community” par 15 of the direction states:
“15. It is the Government’s view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker’s understanding of the community’s attitude to the potential deportee’s offences. Decision makers should have due regard to the Government’s view in this respect.”
Paragraph 24 of the direction addresses one of the two other considerations, namely, the degree of hardship to any Australian citizens or permanent residents, including, hardship to the potential deportee’s family. It expresses the Government’s view that one factor to be considered is the effect that deportation would have on a marital or de facto partner, and whether this would impose undue hardship on the non-deportee partner.
BACKGROUND
The following background facts were not in contention and are taken from the decision of the Tribunal.
The applicant left Vietnam in 1985 and resided in a refugee camp in Thailand for approximately three years. On 13 July 1988, he arrived in Australia as an 18 year old male, under the Indo-Chinese refugee program, and has not left Australia since that date. Approximately six months after arriving in Australia under this program, he was charged with his first criminal offence and convicted on 1 March 1989. The applicant has a history of criminal convictions in Australia from that date. On 19 February 1990, the applicant was involved in an armed robbery of a residence. This crime is often called home invasion. He was in the company of seven people. This offence will be referred to as the first deportable offence.
The applicant’s parents and remaining siblings arrived in Australia in 1991. They have since then become Australian citizens. On 29 January 1995, the applicant was interviewed by a departmental officer regarding his liability for deportation, because of the first deportable offence. On 18 February 1995, the Department of Immigration and Multicultural Affairs made the decision that the applicant would not be deported, but instead be issued with a warning.
In February 1996 the applicant was released from prison on parole. In mid 1996 the applicant commenced a relation with Thi Kim Thu Dinh, who was at that time living as a single mother with a two month old dependent child. The applicant and Miss Dinh lived together between mid 1996 and the time the applicant’s parole was revoked in 1997. After his release from jail, the applicant became a user of heroin.
A second deportable offence occurred on 7 September 1997, when the applicant was found with an unlicensed loaded firearm in his possession. Following this offence, the applicant’s parole was revoked, and on 5 June 1998 he was convicted and sentenced to a minimum of 12 months imprisonment, with an additional term of six months. On 28 January 1999, the applicant was again interviewed by a departmental officer regarding his liability for deportation.
In May 1999, the applicant was released from prison on parole. He resumed living with Miss Dinh, and continued to use heroin. On 19 May 1999 a deportation order against the applicant was signed and on 4 June 1999 the order was served on the applicant.
THE ISSUES ON APPEAL
In his written submission the applicant contended that the Tribunal made the following errors of law in its decision:
Drug Rehabilitation
1)It failed to make a finding on whether the applicant’s attempt to stop using heroin was likely to be successful. This involved a failure to comply with s 43(2B) of the AAT Act and an error of law under s 44 of the AAT Act.
Prospects of Employment
2)It failed to make a finding on whether the applicant was likely to obtain employment in the future. This involved a failure to comply with s 43(2B) of the AAT Act and an error of law under s 44 of the AAT Act.
Hardship to Miss Dinh
3)It failed to take into account the degree of hardship to Ms Dinh that may reasonably be expected to flow from the applicant’s deportation. This involved an error in applying the Direction and an error of law under s 44 of the AAT Act.
Seriousness of Armed Robbery Offence
4)It erred in its consideration of the seriousness of the armed robbery offence committed by the applicant and thereby erred in applying the Direction.
Abhorrent Crime
5)It erred in concluding that the armed robbery offence was an abhorrent crime and thereby erred in applying the Direction.
Counsel for the applicant directed oral submissions to the issues set out in pars 3, 4 and 5 but continued to press the other issues.
DECISION OF THE TRIBUNAL
The final four paragraphs of the decision are headed “Decision” and are introduced with the sentence “I make the following findings”. The Tribunal determined that “this applicant represents an unacceptable risk to the Australian community should he be allowed to stay in this country”. The Tribunal held that there was a high likelihood that the applicant would offend again.
The Tribunal then made findings in relation to the hardship of Miss Dinh and her child and concluded that the effect of deportation would not be serious and continuing given the support network available to Miss Dinh.
In the preceding 24 paragraphs under the heading “Submissions” the Tribunal not only set out the submissions of the parties but expressed certain conclusions on some of the issues. For the purpose of this decision it is only necessary to refer to several of these matters.
In dealing with the seriousness and nature of the first deportable offence the Tribunal said:
“13. The respondent claims that the applicant’s first deportable offence of armed robbery falls within two categories of crime listed in the deportation policy as being of a very serious nature. At paragraph 11, a number of offences are listed, including at d) armed robbery, including robbery involving the use of imitation weapons, and at l) any other crimes involving violence or the threat of violence.
14. A police report dated 24 August 1991 provides brief details of the offence. It says, and I quote:
‘Le and seven co-offenders armed with a sawn-off loaded .22 rifle, a replica pistol and machetes, broke into the residence of an Asian family. They then bound and gagged the four occupants, three females and a 15 year old boy, at gunpoint, before robbing them of $10,000 in cash, jewellery and electrical goods.’
15. The applicant’s conduct was also a crime against children, which is referred to under paragraph 11(k) of the deportation policy, because, as I have just stated, one of the applicant’s victims was a 15 year old boy.
16. On behalf of the applicant, the submissions before me today in dealing with this first deportable offence, drew my attention to the transcript of evidence that was given before the Tribunal in relation to this matter.
17. Before I proceed to state what was put to me today, I would like as a general matter to make the following comment. Because of the circumstance of this case and the particular fact that I have not had the opportunity to see and hear the witnesses, whose evidence is contained in the transcript, I have given great weight to the evidence put at its highest, presented on the applicant’s behalf.
18. As I said, what was put on the applicant’s behalf in relation to the first deportable offence, relying primarily on the applicant’s evidence, was that he was persuaded by others to participate in the robbery, for which he went to gaol. His involvement was spontaneous, rather than planned. He was affected by alcohol and had taken the drug Rohypnol for the first time and he claimed that impaired his judgment. He said he did not carry a weapon during the robbery. He did not know until he arrived at the scene of the crime that weapons were to be used, and he was arrested by the police a few days after the robbery, following which he confessed to his involvement and he said he told all the truth about it.
19. It was put that this evidence is consistent with a reference by the sentencing judge in the District Court to admissions as to his conduct in the record of interview, and before the AAT, when he gave evidence, the applicant continued to acknowledge responsibility for the crime and showed remorse in respect of the robbery. The counsel for the applicant is quite happy to rely upon the description of his client at that time as immature, easily led and not as bright as his co-defendants. He pleaded guilty to the offence. The applicant, however, does not deny that the judge in relation to the first offence, came to the view that all of the participants were equally to blame and there appears to have been no account taken of the limited role of this applicant in the crime, judging by the remarks of the sentencing judge and the sentence in fact imposed.
20. The respondent’s submission is that this is a serious crime and it would be one that is abhorrent to the Australian community. It would be difficult not to characterise a crime which involved the forced entry into a domestic home, threats of violence and the use of weapons whether by a particular perpetrator, or others, as not being something which a person in the Australian community would regard as an abhorrent crime, and I will deal with that later in these reasons, to come to the view that the potential for such a crime to occur would create a risk to the Australian population, then I would, I think, take the view that it was an unacceptable risk.”
Then later in par 30 the Tribunal said:
“30 … In relation to the question of whether the crimes committed by the applicant were abhorrent it is somewhat surprisingly submitted by the applicant that the armed robbery, while a very serious offence, should not be regarded as abhorrent because of the circumstances in which it occurred which were the mind of the applicant and the fact that as he said, he did not understand until he reached the house what in fact was going to happen. That in my view would not be the view of the people who were in the house at the time of the offence and the conduct of the applicant, whatever he may have though about it, was, in my view, abhorrent conduct.”
The Tribunal then considered the risk of recidivism and after setting out the applicant’s submissions including that the applicant was then in a stable relationship with Miss Dinh and her child, that the relationship had had a positive effect on the applicant, that the first deportable offence was committed when the applicant was under the influence of alcohol and Rohypnol, that the applicant has attempted to overcome his heroin addiction and stop drinking, that the applicant had a strong family support network but did not before 1991, that the applicant had not committed any offences since release from prison in May 1999 and that the applicant had made genuine attempts to obtain employment in Melbourne. The Tribunal continued:
“28. As the respondent points out, however, the applicant’s criminal history since 1989 shows a clear pattern of persistent re-offending. The offences from 1989 to 1990 were a series of minor ones until the armed robbery in company offence on 19 February 1990. It is, in my view, significant that a substantial prison term for that offence and the warning of possible deportation given on 18 February 1995, did not deter this applicant from committing the firearm offence in 1997 while on parole, nor the subsequent traffic offences. In fact, it is the applicant’s evidence, that after leaving prison, after having served his sentence for the armed robbery offence, he became a heroin addict and this happened, of course, while at the same time in a domestic relationship with Miss Dinh and her daughter. None of those matters, (which are of course, the matters that the applicant currently relies on), appeared to act as a deterrent in the period between 1997 until the commission of the second deportable offence. The respondent submits that there is a strong link between this applicant’s use of alcohol and illicit drugs and his criminal offences. As stated previously this applicant concedes he has been using heroin since 1996 and has ceased to do so since September 1999. However, his own evidence is he has failed to seek any additional drug rehabilitation after one attempted drug rehabilitation failed and he has rejected methadone treatment to address his problem.”
ARGUMENTS AND CONSIDERATION ON APPEAL
Drug Rehabilitation – Failure to make a finding
The applicant contended that the evidence before the Tribunal showed that there was a close connection between the applicant’s use of drugs and the offences committed in 1990 and 1997. He further contended that since his release from prison in May 1999 the applicant acknowledged his drug problems and had not taken heroin since September 1999. As there was evidence of a close connection between the past offences committed by the applicant and his use of drugs, and evidence as to his drug rehabilitation it was a material question of fact within the meaning of s 43(2B) of the AAT Act in assessing the applicant’s risk of recidivism whether his attempt at drug rehabilitation was likely to continue to be successful. Alternatively, it was contended, this question was material in assessing the prospect of further rehabilitation.
The respondent contended that the Tribunal made an express finding concerning this matter in finding that the applicant was likely to return to drug addiction and as a result commit further offences. The respondent relied on the following paragraphs:
“38.I make the following findings. This applicant represents an unacceptable risk to the Australian community should he be allowed to stay in this country. I do not accept that there is a low risk of recidivism and although I accept as true the current situation that this applicant is in a relationship with a dependent child and wishes to be free of drug dependence and crime, in my view the existence of the relationship and an opportunity to live in Australia drug free and without crime was given to the applicant after his first deportable offence. He did not take that opportunity.
39.I accept the submission of the respondent that if the fear of deportation, or risk of deportation, was removed by giving another chance, then it would be highly likely that the behaviour would be repeated. The applicant, in fact, after the first deportable offence in fact increased his use of hard drugs and did not improve the quality of his life nor his commitment to his de facto wife and the child.”
We accept the respondent’s submission that in the passages set out above the Tribunal made an express finding on the question whether the applicant’s drug rehabilitation was likely to continue to be successful.
In view of this conclusion it is not necessary to consider the respondents alternative submission that the question of the likely success of drug rehabilitation was not a material question within the meaning of s 43(2B) of the AAT Act.
Prospects of Employment – Failure to make finding
The applicant contended that a material question of fact relevant to the best interests of Miss Dinh’s child was whether the applicant was ever likely to obtain employment in Melbourne if he was permitted to stay in Australia. There was evidence that the applicant was making genuine attempts to obtain employment in Melbourne. The applicant contended that the Tribunal’s failure to make a finding whether the applicant was likely to obtain employment in Melbourne constituted a failure to comply with s 43(2B) of the AAT Act.
The applicant also submitted that whether the applicant was likely to obtain employment in Melbourne was a material question of fact in considering the positive contribution to the community the applicant might make if he were permitted to stay in Australia, and that factor was relevant in assessing his risk of recidivism.
Whether a question may be material is influenced by the way in which the case is put to the Tribunal. In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 the majority explained the concept of materiality in the equivalent section in the Migration Act in pars 48 and 55 as follows:
“48.The generally accepted view in this Court has been that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. It must make findings on questions of fact that are central to the case raised by the material and evidence before it. In this respect, s 430 sets a standard of decision-making the RRT is required to observe.
…
55.The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it. Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them. As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691, in the context of s 43 of the AAT Act:
‘Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal’s reasons expose the logic of its decision, and contain findings on matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with a requirement to include ‘findings on material questions of fact’.”
The evidence of the applicant’s attempts to find work were put to the Tribunal as relevant to the risk of recidivism posed by the applicant. It was not suggested that it had any relevance to the best interests of the child or to the contribution the applicant might make to the community. It was not a material question of fact relevant to the question of the best interests of the child.
In any event there was no evidence as to whether the attempts to find employment were likely to be successful. This absence also reflects on the materiality of the question.
Hardship to Miss Dinh – Error in application of direction
The best interests of a child is a primary consideration for the Tribunal under the direction (pars 5 and 6). The direction also requires the Tribunal to balance all relevant considerations including the degree of hardship which deportation would have on a de facto partner (pars 5 and 24).
The applicant put two arguments in relation to the way in which the Tribunal dealt with the interests of Miss Dinh. First he contended that the Tribunal simply overlooked the question of hardship which would be suffered by her if the applicant were deported. In the alternative he contended that the Tribunal failed to assess the degree of hardship which she would suffer and balance that hardship against the other considerations. The proper approach, which it was contended the Tribunal failed to follow in this case, was described by Whitlam and Gyles JJ Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at pars 18 and 23 as follows:
“18… it should be borne in mind that the Direction is not simply a list of relevant matters, it describes a process of decision-making…
…
23The Tribunal was obliged to assess the degree of hardship which may be suffered by the potential deportee and, having done so, put its conclusion on that issue on the scales in the manner provided for by the Direction…”
Relevant to the consideration of these arguments is the following passage from the decision of the Tribunal in par 40:
“It is a matter of some concern to me that Miss Dinh and this child, as a result of the applicant’s deportation, will be separated from him and I have taken the effect of that very seriously into account. But I do not think that, as I have already said in this set of reasons that the affect of deportation on this child would have a serious and continuing affect and I rely particularly on the fact that Miss Dinh gave evidence of a family support network in Melbourne which she said would be available to the child.”
The contention that the Tribunal failed to address the question of hardship to Miss Dinh at all depended on an analysis of the structure of the decision. Paragraph 40 is within a section of the decision headed “Decision” and is preceded by two paragraphs which revisit issues previously analysed in the long section of the decision which is headed “Submissions”. In the submissions section there is no discussion of Miss Dinh’s separate interest but only of the hardship which might be caused to the child and other relatives of the applicant. Consequently, it was contended that the reference in par 40 to Miss Dinh could only refer to the associated subject previously discussed, namely, the role of Miss Dinh in consideration of the best interests of the her child. This construction, it was submitted, was consistent with the second sentence in par 40 which addressed the question of the best interests of Miss Dinh’s child.
In our view this approach fails to give proper importance to the express mention of Miss Dinh in the first sentence of par 40. The applicant’s construction requires, in effect, the reader to completely ignore the express reference to Miss Dinh. Recourse to the overall structure of the reasons of the Tribunal does not provide an answer to the express reference to Miss Dinh because, while the earlier section is headed “Submissions”, that section does contain findings of the Tribunal and no very clear distinction can be made between the two sections of the reasons of the Tribunal.
We now turn to the alternative argument concerning the way the Tribunal dealt with the question of hardship to Miss Dinh. This argument also centred around the meaning of the first sentence in par 40. In particular it was submitted that there was evidence concerning the hardship to Miss Dinh which was not referred to and, was not therefore taken into account, assessed and balanced against the other considerations.
It is true that the reference to the hardship which would befall Miss Dinh is referred to briefly and without elaboration. However, in the circumstances of the case this does not demonstrate a failure on the part of the Tribunal to take the relevant evidence into account, assess it, and balance it against other considerations. The reason is that the issue of hardship to Miss Dinh played a very minor role in the proceedings before the Tribunal. Indeed, it was not addressed at all in the written submissions on behalf of the applicant. The only evidence relevant to the issue relied upon by the applicant on the hearing of the appeal was evidence of Miss Dinh that she loved the applicant and would be very sad if he were deported, evidence that he assisted Miss Dinh at times and in limited ways in the care of her child, and evidence that he spoke English a little better than Miss Dinh. This relevant evidence is contained in the answers to very few questions and in total occupies no more than about two pages of evidence in a total of 150 odd pages of evidence taken over two days of hearing.
The assessment of the evidence of Miss Dinh’s emotional attachment to the applicant is encompassed within the first sentence of par 40. In our view the extent and sketchy nature of the evidence on the remaining issues and the fact that they played such a minor role in the conduct of the applicant’s case mean that no express or detailed reference to that evidence was necessary in order for the Tribunal to comply with its obligation to implement the direction. The terms of the first sentence of par 40 are expressed in the language of qualitative assessment. The Tribunal indicates “some concern” about the effect of separation from the applicant on Miss Dinh and expressly describes the process of the Tribunal as taking that effect “very seriously into account”.
The applicant relied on the decision of Sackville J in Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161 in which it was found that the Tribunal had failed to make findings on material questions of fact concerning the nature and degree of hardship to the applicant. What will qualify as a failure to make the necessary findings depends on the particular circumstances of the case including the state of the evidence and the way the case is put to the Tribunal. In the present case the conclusion of the Tribunal on the question of hardship to Miss Dinh was expressed compendiously. However, as has been explained, this treatment reflected the way the issue was put to the Tribunal and evidence that was before the Tribunal. In particular, the relevant evidence was not in contest or in conflict. In this respect the present case contrasts with Bustescu. There, the nature and degree of hardship which the applicant was likely to experience or was at risk of experiencing if deported to Romania was the major issue before the Tribunal and was the subject of conflicting and contested evidence. The result in Bustescu therefore is no guide to the approach to be taken in this case. In our view the treatment by the Tribunal of the question of hardship to Miss Dinh does not demonstrate any error of law.
Seriousness of Armed Robbery Offence – Error in application of direction
Paragraph 10 of the direction provides that a factor relevant to an assessment of the level of risk to the community and the need for its protection is the seriousness and nature of the crime. The applicant contended that in determining whether an offence was very serious within the meaning of the direction the Tribunal was bound to consider not just the type of crime committed by the applicant but the nature and seriousness of it deriving from its own circumstances. The seriousness of the first deportable offence in this case was diminished by the fact that the applicant had no involvement in the planning or instigation of the armed robbery and did not know about it until he was called into the house and found the armed robbery taking place in front of him. Thus, it seems to be suggested, the circumstances of this case could not fall within the concept of a serious crime as intended by the direction.
There is no substance in this criticism. Paragraphs 11 and 12 of the direction provide as follows:
“11. It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
…d)armed robbery (including robbery involving the use of imitation weapons);
…
k)crimes against children;
l)any other crimes involving violence of the threat of violence;
…
Decision makers should have due regard to the Government’s views in this respect.
12.It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision makers should have due regard to the Government’s view in this respect.”
The Tribunal dealt with the nature of the first deportable defence in pars 13 to 20 and 30 of its reasons (which are set out at pars 29 and 30 of these reasons). In determining that the first deportable offence was a very serious offence the Tribunal simply applied the terms of par 11 of the direction which designated armed robbery, crimes against children and other crimes involving violence or the threat of violence, as very serious offences. Paragraph 10 of the direction also requires the Tribunal to have regard to the nature of the offence. This requirement directs attention to the particular circumstances of the offence. The Tribunal considered this aspect at length at pars 18 and 19 of its decision (which are set out in par 29 of these reasons). The Tribunal committed no error of law in determining that the first deportable offence was a serious crime within the meaning of the direction.
Abhorrent Crime – Error in application of direction
It will be recalled that one of the primary considerations to which the Tribunal must have regard under par 6 of the direction is the expectations of the Australian community. Par 8 of the direction requires the Tribunal to have due regard to the Government’s view concerning community expectations. It goes on to provide for two aspects to community expectations. The second expectation is that “non-citizens who commit / are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.” Paragraph 15 of the direction (which is set out in par 16 of these reasons) provides that there is a community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community. It provides that it may be appropriate to deport such a person “even if there is no serious likelihood that the person is a continuing threat, or will be a future threat to the community”. In other words, the direction signifies certain cases where the offence is so gross that deportation might be justified even if there is no significant risk of re-offending. It should be stressed that the Tribunal did not approach this case on this basis. The primary reason justifying deportation was the high likelihood of recidivism. Thus, whether the first deportable offence was abhorrent to the Australian community was relevant to the consideration of community expectations under par 8.
The applicant contended that the Tribunal was bound to take into account the circumstances of the offence and the nature of the applicant’s involvement in the offence in determining whether the crime was abhorrent. The Tribunal said:
“In relation to the question of whether the crimes committed by the applicant were abhorrent it is somewhat surprisingly submitted by the applicant that the armed robbery, while a very serious offence, should not be regarded as abhorrent because of the circumstances in which it occurred which were the mind of the applicant and the fact that as he said, he did not understand until he reached the house what in fact was going to happen. That in my view would not be the view of the people who were in the house at the time of the offence and the conduct of the applicant, whatever he may have thought about it, was, in my view, abhorrent conduct.”
The applicant construed this passage as excluding the nature of the applicant’s involvement from any consideration of the nature of the offence.
We do not agree with this construction. The Tribunal had regard to and assessed the circumstances of the offence. It had regard to the fact that the applicant did not know until he reached the house that there was to be an armed robbery. But the Tribunal concluded that, accepting such involvement, the offence was nonetheless an abhorrent offence. The process engaged in by the Tribunal was quite different to one which ignored the circumstance that the applicant did not know that an armed robbery was to occur. The Tribunal committed no error in its approach to the question of the abhorrent nature of the crime.
CONCLUSION
For the reasons given above the appeal is dismissed with costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, North and Gyles.
Associate:
Dated: 28 August 2000
Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: D T Dao & Co Counsel for the Respondent: Mr R Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 August 2000 Date of Judgment: 29 August 2000
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