Le v Minister for Immigration and Multicultural Affairs

[1999] FCA 1704

FEDERAL COURT OF AUSTRALIA

Le v Minister for Immigration & Multicultural Affairs [1999] FCA 1704

VAN DIEN LE v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 798 OF 1999

HILL, MATHEWS AND GYLES JJ
1 DECEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 798 OF 1999

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	VAN DIEN LE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	HILL, MATHEWS AND GYLES JJ
DATE OF ORDER:	1 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs.

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 798 OF 1999

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	VAN DIEN LE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	HILL, MATHEWS AND GYLES JJ
DATE:	1 DECEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HILL J:

1. The appellant, Mr Van Dien Le, appeals to the Court on one view of the matter, pursuant to the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of a Deputy President, the Honourable Mr Purvis, QC, affirming a decision by a delegate of the Secretary of the Department of Immigration and Multicultural Affairs that Mr Le be deported. The appeal is a decision on, that is to say limited to, a question of law. It is an appeal in the original jurisdiction of this Court, however under s 44(3) is heard by a Full Bench of this Court in accordance with the decision of the Chief Justice.

2. The appeal to the Court, however, was in the form of an application for an order of judicial review.  Such a review could be possible under the Administrative Decisions (Judicial Review) Act 1977 (Cth), although not the Migration Act 1958 (Cth) (“the Act”). It is unnecessary for present purposes to distinguish an application under the Administrative Decisions (Judicial Review) Act and an appeal under the Administrative Appeal Tribunal Act in that the former is in any event limited to specified legal errors.  The more appropriate appeal would be by way of appeal under the Administrative Appeals Tribunal Act and I am content for present purposes to treat it in that way.

3. At the time of the hearing before the Tribunal, Mr Le had lived in Australia for approximately 12 years. During that time he had been convicted of a number of offences which are listed in a schedule to the Tribunal's reasons. The last of these convictions was on 15 December 1997 in the Burwood Local Court for the offence of stalking and intimidating with intent to cause fear of personal injury. For that offence he was sentenced to a minimum term of 12 months commencing on 26 August 1997, and an additional term of 12 months concluding on 26 August 1999. It is this last conviction which forms the basis of the order by the Minister that he be deported under s 200 of the Act.

4. In his notice of appeal Mr Le specified four matters. The first was that the Tribunal had refused to provide an interpreter for the hearing. The second was that his residency in Australia since 1986 had not been taken fully into account. The third was that his prior convictions were not of a serious nature. Finally it is claimed that the Tribunal had interpreted s 200 of the Act incorrectly.

5. In oral submissions, Mr Le submitted that the decision of the Tribunal was wrong because he had never received a warning about deportation. By that I assume he meant that after various other offences he had committed, he had not been told that he could be liable for deportation. Section 200 of the Act does not make a warning of deportation in any event a necessary pre-condition to the making of an order. The relevant pre-condition in Mr Le's case is that he be convicted of an offence for which a minimum sentence of 12 months is imposed. There is no substance in this ground.

6. The second matter raised by Mr Le in oral submissions is that his previous convictions, among which I would understand he included the offence of stalking, were not for offences so serious as to justify an order of deportation.  The seriousness with which an offence is viewed is a matter for the Tribunal, it is not a matter for this Court.  I am unable to see any error in the Tribunal's reasons so far as it dealt with the offence for which deportation was ordered, nor do I see any error in the way in which the Tribunal dealt with the other offences. 

7. A submission that in some way Mr Le had been driven to confess matters raises questions of fact which are not for this Court to determine. 

8. The third matter raised by Mr Le in oral submissions was that prior to the Tribunal hearing he had been interviewed by an officer of the Department of Immigration and Multicultural Affairs and that at that interview he had not been provided with an interpreter.  It is submitted that this circumstance led to a denial of natural justice. 

9. The procedure of review by the Administrative Appeals Tribunal involves that Tribunal considering for itself the issue which the original decision-maker had considered in order to arrive at the correct or preferable decision.  There is no suggestion at all that the Tribunal denied to Mr Le natural justice.  An interpreter was available to him at the Tribunal hearing and he was able through the interpreter to put to the Tribunal any relevant matter. 

10. The question of the Tribunal not having taken into account his residency since 1986 raised in the grounds of appeal was not the subject of any oral submission. However, the reasons of the Tribunal make it clear that the Tribunal did take that matter into account. Likewise, the suggestion that in some way the Tribunal interpreted s 200 of the Act incorrectly was not the subject of any oral submission. There is nothing in the Tribunal's reasons, however, which would suggest that the Tribunal in any way erred in its interpretation of the section. The appeal to the Court should accordingly be dismissed.

    MATHEWS J:

11. I agree with the orders proposed by the presiding judge and with the reasons given in support.

    GYLES J:

12. I also agree.

    HILL J:

13. I propose that the orders of the Court will be that the appeal be dismissed and that the appellant pay the respondent's costs of it. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             1 December 1999

The Appellant appeared in person
Counsel for the Respondent:	F. Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 December 1999
Date of Judgment:	1 December 1999