Leng v Minister for Immigration and Multicultural Affairs

[1999] FCA 1725

FEDERAL COURT OF AUSTRALIA

Leng v Minister for Immigration & Multicultural Affairs [1999] FCA 1725

IMMIGRATION - deportation of Australian permanent resident following numerous criminal convictions - validity of determination by Administrative Appeals Tribunal - application of criminal deportation policy direction - community expectations - relevance of seriousness of offences, prospect of recidivism, and hardship following deportation - whether Tribunal erred in failing to address all relevant matters

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Migration Act 1958 (Cth) s 200, 201, 499
Bail Act 1980 (Qld)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Cited
McPhee v Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 77 Cited
Minister for Immigration  and Multicultural Affairs v Eshetu (1999) 162 ALR 577 Cited

FABIAN KENNETH LENG v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Q 127 of 1999

KIEFEL J
BRISBANE
10 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 127 OF 1999

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION CONSTITUTED BY A PRESIDENTIAL MEMBER

BETWEEN:	FABIAN KENNETH LENG Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	KIEFEL J
DATE OF ORDER:	10 DECEMBER 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The appeal is allowed with costs and the decision of the Tribunal set aside.

2.        The matter be remitted to the Tribunal for determination according to law.

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	QG 127 OF 1999

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION CONSTITUTED BY A PRESIDENTIAL MEMBER

BETWEEN:	FABIAN KENNETH LENG Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	KIEFEL J
DATE:	10 DECEMBER 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant appeals from the decision of the Administrative Appeals Tribunal of 22 April 1999, affirming the decision of the Minister for Immigration and Multicultural Affairs of 2 November 1998 ordering the his deportation. Section 44(1) Administrative Appeals Tribunal Act 1975 limits such an appeal to questions of law. 

2. The applicant is a New Zealand citizen who came to Australia with his mother and siblings in January 1991, when he was 12 years old.  He left school in 1993 and has been unemployed, for the most part, since that time. He first came before the Magistrates Court in June 1995 for a minor offence, for which he was fined a small amount.  On 1 November 1995, he was convicted on two charges of serious assaults on a police officer and on each charge he was ordered to undertake 120 hours of community service.  The offences committed from that time until late 1996 related to minor drug-related offences, assaults on police officers and breaches of bail conditions.  By the end of June 1997, he had been convicted of breaking and entering dwelling houses in the night-time;  breaking and  entering a dwelling with intent;  breaking, entering and stealing;  receiving stolen property;  assault occasioning bodily harm and aggravated assault on a female;  being found in an enclosed yard without lawful excuse and a breach of the Bail Act 1980. On 6 June 1997, he was convicted of eight of the charges and the trial Judge ordered that he be released into the supervision of an authorised commissioned officer for a period of three years and that he perform unpaid community service for 240 hours. A conviction was recorded. The trial Judge gave the applicant a warning and the following part of the sentencing remarks was referred to in the Tribunal’s decision:

   “The offences of entering a dwelling house in the night time are extremely serious.  The fact that you committed such an offence and then grappled with the occupier of the house on the whole makes that offence even more serious.  …

   Now, I am giving you a chance and this will be your last chance.  If you commit other offences while you are on probation or if you fail to comply with the requirements of the probation service you will come back before me to be dealt with for these offences.  If that happens I will certainly seriously consider a lengthy term of imprisonment for you.  Is that clear to you?”

3. On 23 January 1998, the applicant was convicted of stealing and of breaching the Bail Act, and was sentenced to imprisonment for four months and two months respectively.  The offences were committed on 27 December 1997 and constituted a breach of the Probation and Community Services Orders.  The applicant offended again on 13 January 1998.  For each of the offences for which he had been given probation he was re-sentenced to eighteen months imprisonment, six months imprisonment on the recent offences of stealing and attempted fraud and two months for breaching probation, with the sentences to be served concurrently.  The sentencing Judge described the offences, the subject of the probation orders, as “very serious offences”.

4. The applicant was, at the time of imprisonment, a permanent resident of Australia and a special category visa holder, with less than 10 years legal residence. He was therefore liable, by force of s 201 Migration Act 1958, to deportation under s 200.

5. Section 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions under the Act with respect to the exercise of those powers, provided they are not inconsistent with the Act.  The General Direction in question, dated 21 December 1998, “Australia’s Criminal Policy; Criminal Deportation under s 200 of the Migration Act 1958” relevantly provides that:

   “4.      The purpose of deporting a person from Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to remain in the community.

   PRIMARY CONSIDERATIONS

   5.        The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a potential deportee.  In making such a decision, a decision maker should have regard to two primary considerations and a number of other considerations.  The primary considerations are set out at paragraph six (6), and two other common considerations are set out in paragraph seven (7).  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 which takes into account all relevant considerations.

   6.        In making a decision whether or not to deport a non-citizen, there are two primary considerations:

   (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 interests of the child or children.

   7.        In addition, there will be other considerations that will be relevant in individual cases.  Two of the most common 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.”

6. With respect to the expectations of the Australian community it is then explained that there are two aspects:

   “(a)the expectation that the community will be protected and not put at risk;  and

   (b)the expectation that non-citizens who commit [and] are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.”

7. The Government’s view, which is also to be taken into account, is addressed in the following paragraph.  It is there stated 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”.  Of particular importance are offences relating to drugs and crimes of violence.  The following factors are then identified as relevant to an assessment of the level of risk to the community:

   “(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.”

8. Examples are given of offences which are considered to be “very serious”.  They include the importation and dealing in drugs, murder, sexual assaults and armed robbery.  In relation to property, “serious theft” is highlighted.  Any crimes involving violence or the threat of violence are included.  The sentence imposed is to be taken as an indicator of the seriousness of the offender’s conduct. 

9. With respect to the risk of recidivism it is said:

   “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.

   The likelihood that deportation of the potential deportee would prevent (or inhibit the commission of) like offences by other persons.”

10. Paragraph 7 of the General Direction refers to matters other than those identified as “primary considerations” which may be relevant:

    “7.      In addition, there will be other considerations that will be relevant in individual cases.  Two of the most common 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.”

11. In the section entitled “Other Considerations”, some matters are listed as relevant, but as having less weight than the primary considerations:

    “21.     It is the Government’s view that in considering the issue of deportation other matters, although not primary considerations, will be relevant.  It is appropriate that these matters be taken into account but given less weight than the primary considerations.  These matters include:

    (a)the degree of hardship which may be suffered by the potential deportee;  and

    (b)the degree of hardship to any Australian citizens or permanent residents, including the potential deportee’s family (other than children whose best interests are a primary consideration).

    Decision makers should have due regard to the Government’s view in this respect.”

12. In connexion with the degree of hardship which may be suffered by the deportee para 22(b), (c) and (d), which may have relevance to this case, provide:

    “22.     It is the Government’s view that factors to be considered here include:

    …

    (b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government’s intention that such people will never be deported.

    (c)the degree and extent of the potential deportee’s ties with the likely country of return;

    (d)the strength of other family, social or business ties in Australia.”

13. Paragraph 24 provides that the factors to be considered with respect to the matter referred to in para 21(b) include the effect deportation would have on other family members (subpar (b)).

14. The deportation order referred to the following offences:

    “AND WHEREAS the said Fabian LENG was convicted at the District Court at Brisbane in the State of Queensland on 6 June 1997 of the offences of ‘Receiving’ on 27 August 1995 [1996], ‘Break, enter and steal’ and ‘Wilful damage in the night time’ on 16 January 1996 for which he was placed on probation for 3 years and ordered to perform 240 hours community service.  On 13 March 1998, the breach of probation and community service orders was proved, and the said Fabian LENG was re-sentenced on the original offences to eighteen months imprisonment.”

    The Tribunal’s Decision

15. After referring to the sentencing judge’s description of the offences, in respect of which a probation order was made (two of breaking and entering a dwelling house with intent;  one of stealing;  two more of stealing and one of attempted fraud), as “very serious”, the Tribunal noted as relevant that “the Ministerial Policy … includes that range of offences also within the category of serious offences”.  The balance of the Tribunal’s reasons with respect to this consideration were stated shortly.  The majority of the decision was taken up with the issue of recidivism.  As to the seriousness of the offence, the Tribunal concluded:

    “Mr Leng’s criminal history shows a significant propensity for dishonesty, a willingness to indulge in violence upon others and a measure of experimentation with drugs. It was submitted on his behalf that no single offence was within itself particularly serious but the fact remains that he has a lengthy criminal history that categorise [sic] him as a social pest likely to develop into something even more sinister from the Australian community’s point of view.”

16. On the question of the applicant’s propensity to re-offend, the Tribunal referred to evidence from his mother, attesting to the applicant’s desire, now, to stay out of trouble, but it was clearly influenced by the prison assessment report in which the view expressed was that the applicant had failed to address his offending behaviour and to participate in programs.  The result of this, the report concluded, was that “his risk of re-offending is high”.  Of “grave concern” to the Tribunal, on this issue, was the careful warning administered by the sentencing Judge and the applicant’s failure to observe probation requirements in less than six months.  The Tribunal gave little, if any, weight to statements of future intention and assessed the risk of recidivism as “extremely high bordering almost upon certainty”.  There was evidence before the Tribunal of a prospect of employment and also of accommodation with the applicant’s family.  The Tribunal, however, observed:

    “…presumably these resources were available to him after he was placed on probation on 6 June 1997 and thus were there to support him had he made a genuine endeavour to heed the Sentencing Judge’s warning and to adopt a way of life towards a reasonable future enabling him perhaps to make some contribution to Australia.  He had made none thus far.”

17. The Tribunal concluded:

    “Having considered the evidence led and paying due regard to the statute and the case law, I have decided to affirm the decision under review.  The risk of recidivism in this applicant is unacceptably high.  The likelihood of a positive contribution coming from him to the Australian community is exceedingly low.  He has had his chances in the past and ignored them.  I consider it extremely unlikely that were I to give him any chance he would do otherwise.”

    Issues on the Appeal

18. The applicant’s principal submissions were that the offences could not be regarded as having the degree of seriousness to which the Policy referred;  that parts of the Tribunal’s decision disclosed that the Tribunal acknowledged that the offences were not grave;  and that there was no evidence to support the finding that the applicant was likely to re-offend, insofar as it was based upon the fact that he had had previously had the same opportunities to assist his rehabilitation but had nevertheless re-offended.  It was also contended that the Tribunal failed to take into account that the applicant’s offences followed upon his wrongful conviction and imprisonment, in April 1996.  There was also said to be an underlying policy of acceptance by Australia of its responsibility for the criminal conduct of non-citizens who had spent most of their formative years in Australia in the General Direction, and that this had been overlooked by the Tribunal.  It was further submitted that the Tribunal failed to have regard to the hardship which he and his family would suffer, and to the fact that he had no family ties in New Zealand, whereas he had an extended family in Australia which could offer him support.

    Consideration of the Issues

19. It follows from the provisions of the General Direction, referred to above, that the Tribunal was obliged to approach the question of whether deportation was appropriate, or necessary, by reference to the stated expectations of the Australian community and the Government’s views on that matter.  The community expects protection and the removal of “unacceptable levels of risk of crime”.  This statement suggests that the enquiry to be undertaken by the decision-maker will be concerned with offences of any kind.  From what follows in the Direction, however, it is made clear that both the nature and seriousness of offences and the likelihood of them being repeated in the future are to be assessed in determining whether the community required protection from the offender being considered for deportation.  There is another factor to be taken into account - the prospect that deportation might provide some deterrent effect - but it is not of importance on this appeal.  The first two matters are in my view considerations to which the statute directs attention and which the decision-maker is obliged to take into account:  see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40.

20. It is convenient to refer, first, to the Tribunal’s consideration of the likelihood that the applicant would continue to offend in the future.  It requires a view to be formed on the facts as to the applicant’s history and a judgment about what will then likely occur in the future. An appeal from the Tribunal is concerned with errors of law.  The Tribunal directed itself to the question and took into account factors which pointed to the likelihood of recidivism.  In that respect, the commission of further offences so shortly after the making of the probation and community service orders, and the warning administered by the sentencing judge, appear to have strongly influenced the Tribunal in coming to the conclusion that the risk was very high.

21. The only basis shown by the applicant for attack upon the Tribunal’s consideration of this issue concerned two matters:  the first was an aspect of the applicant’s history which was not adverted to by the Tribunal, namely his wrongful conviction and imprisonment.  It does not, however, appear to me that this was established as a fact.  The inference the applicant sought to draw from this was that he was, to some extent, then exposed to other offenders and was influenced in the path he thereafter took.  There is much speculation inherent in this proposition.  The difficulties for the applicant, assuming the facts as contended for, are that it was not a matter which the Tribunal was obliged to take into account and it could not be concluded that it would have had a material effect on the conclusion it reached:  Minister v Peko-Wallsend Ltd 40;  McPhee v Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 77, 80. The two matters are inter-related.

1. It was apparently assumed by the Tribunal that the applicant had available to him an offer of employment and accommodation with his family, at an earlier time.  The evidence did not disclose that there was some earlier prospect of employment.  It does not, however, appear to me that the Tribunal misunderstood this.  It referred to the prospect of employment having been available to the applicant as a presumption, and it seems to me that it was referring to that opportunity as a course of action which was, in a general sense, open to him to pursue rather than to a particular job offer.  In any event, it is not apparent to me that some limitation on earlier employment could be taken as influential upon the Tribunal given the importance it placed on other factors.

2. Views may differ as to the seriousness of the offence or offences committed by the potential deportee.  The respondent submitted that the Tribunal’s finding, inferentially, that the offences were sufficiently serious and within the purview of the Direction, was simply one of fact and value-judgment.  If the criticism of the Tribunal’s reasoning was only that too much weight was given to some aspects of the offences committed by the applicant, then it could not be said that the decision was “unreasonable” in the administrative law sense, which is to say that it was such that no reasonable decision maker could have arrived at it:  Minister for Immigration  and Multicultural Affairs v Eshetu (1999) 162 ALR 577, 588.

3. The General Direction, in discussing the expectations of the community, refers to one which would require removal from Australia of non-citizens who commit “abhorrent” crimes.  The applicant submitted that this expression gave colour to the level of seriousness required.  It seems to me, however, that the Direction was there concerned with a crime of such a nature that there could be little, or no, argument about it.  It leaves the decision-maker to assess other offences and determine which of them are sufficiently serious that the community might reasonably expect action, such as deportation, to be taken to protect it from a repetition of the offences.  It gives some indication of the higher end of the scale by its reference to “very serious” offences as those involving violence, sexual assault, serious theft of property and drugs.

4. The Tribunal observed that the sentencing judge had described those offences, for which probation orders had first been given, as “very serious”, albeit in the context of Queensland’s criminal law.  It went on:

   “…It is relevant to note that the Ministerial Policy for the administration of the relevant provisions of Australia’s migration law, includes that range of offences also within the category of serious offences.”

5. It is not apparent how the Tribunal came to that view with respect to the offences there concerned, unless it considered the assault on the householder, whose house was entered, as involving the violence to which the Direction referred.  This is clarified by a later passage in the Tribunal’s reasons which I have set out at para 15, which I take to encompass its findings on this question.

6. This passage shows, in my view, that the Tribunal did not conclude the question of the seriousness of the offences by reference to assaults amounting to offences of violence.  There appears to me to be an implicit acceptance of the contention that no single offence was itself serious, in the sense referred to in the Direction.  The Tribunal’s focus was upon the likelihood that he would continue offending and that the offences he might commit might become more serious in the future.  In my view, the Tribunal has either answered the question, whether the offences were sufficiently serious, in the negative or, as is perhaps more likely, it has not answered that question at all  More was required by the General Direction than a conclusion as to recidivism.  As I have explained earlier in these reasons, a consideration of the nature and seriousness of the offences was something which the original decision-maker, and the Tribunal, was bound to undertake, having regard to the terms of the Direction.  A failure to do so is an error of law.

7. It follows, in my view, that the determination of the Tribunal is liable to be set aside on this ground alone, but there is one further aspect of the decision to which reference is necessary.

8. The “Other Considerations” in the General Direction might be thought to contain only indications of matters which the Tribunal might consider bear upon a particular case.  It seems to me, however, that it was intended that the two factors identified:  degree of hardship to the deportee or to Australian citizens or permanent residents, would be considered in each case.  They might be rejected in a given case, but attention must be directed to them.  The Tribunal did not have regard to these questions.  The hardship contended for was that affecting the applicant, namely that he would be required to return to New Zealand where he has no family ties.  His father, who remained there when the applicant’s mother brought their children to Australia, has not maintained contact for many years.

9. The appeal is allowed with costs and the decision of the Tribunal set aside.  The matter should be remitted to the Tribunal for determination according to law.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             10 December 1999

Counsel for the Applicant:	Ms A Julian-Armitage
Solicitor for the Applicant:	Hawthorn Cuppaidge & Badgery
Counsel for the Respondent:	Mr D O’Brien
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 October 1999
Date of Judgment:	10 December 1999