Luu v Minister for Immigration and Multicultural Affairs

[1998] FCA 1021

FEDERAL COURT OF AUSTRALIA

MIGRATION – appeal from AAT – applicant convicted of several offences – deportation order made against non-citizen.

ADMINISTRATIVE LAW – evidence excluded at hearing before the Tribunal – whether there was a denial of procedural fairness – whether the Tribunal could receive evidence which would amount to impugning the conviction – purpose of adducing such evidence.

Migration Act 1958 (Cth) ss 200, 201
Administrative Appeals Tribunal Act 1974 s 44

Ridley v Secretary, Department of Social Security (1993) 42 FCR 276
Mickelberg v The Director of the Perth Mint [1986] WAR 365
R v Windridge; ex parte Pacific Coal Pty Ltd [1992] 2 Qd R 180
Thai v Deputy Commissioner of Taxation (1994) 34 ALD 132
Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49
Rettke v Comcare (unreported, Full Federal Court, 26 October 1994)
Dobbie v Department of Social Security (unreported, Full Federal Court, 7 April 1995)
Stead v State Government Insurance Commission (1986) 161 CLR 141
R v Kuczynski (1994) 72 A Crim R 568
Saffron v Commissioner of Taxation (1991) 30 FCR 578
Commissioner of Australian Federal Police v Butler (1989) 91 ALR 293
Secretary, Department of Social Security v Ridley (1992) 40 FCR 43
General Medical Council v Spackman [1943] AC 627
Lai v Minister for Immigration Local Government and Ethnic Affairs (1991) 28 FCR 346
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Zecevic v DPP (Vic) (1987) 162 CLR 645
Commissioner of Australian Federal Police v Hatfield (1992) 106 ALR 335
R v Higgins (1994) 71 A Crim R 429
Re Salazar-Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98
Vabaza v The Minister for Immigration and Multicultural Affairs (Goldberg J, 27 February 1997, unreported)
Waterford v The Commonwealth (1987) 163 CLR 54
Devries v The Australian National Railways Commission (1993) 177 CLR 472
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MINH DUNG LUU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 558 of 1997

WEINBERG J
MELBOURNE
25 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 558  of  1997

BETWEEN:	MINH DUNG LUU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	25 AUGUST 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 558  of 1997

BETWEEN:	MINH DUNG LUU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WEINBERG J
DATE:	25 AUGUST 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) against a decision of the Administrative Appeals Tribunal made on 5 September 1997 whereby the Tribunal affirmed the decision of the delegate of the Minister to order, pursuant to s 200 of the Migration Act 1958, that the applicant be deported from Australia.

Background

The applicant was born on 10 December 1961, in Vietnam.  He left Vietnam in December 1988, and spent 13 months in a refugee camp in Malaysia.  He applied to migrate to Australia, was accepted, and arrived in this country in January 1990.  Shortly after his arrival in Australia, he obtained employment in a metal factory where he worked for approximately 18 months until he returned to Vietnam in May 1991.  He spent 6 weeks there, on holiday, visiting his family and his prospective spouse.  On returning to Australia he was unemployed for about 6 months.  He then obtained employment in a clothing factory.  He returned to Vietnam in March 1992, and married his wife, Xuan Hue Tran.  He visited Vietnam a third time in January/February 1993 because his wife, who had remained in Vietnam, had been injured in a car accident. He made a fourth visit to Vietnam in July/August  1993 upon learning that his wife had health problems which might delay her migration to Australia.  She finally joined him in Australia on 21 August 1994.

The marital relationship seems initially to have been harmonious. Within a few months of the applicant’s wife’s arrival, however, tensions developed.  The applicant claimed the cause of the matrimonial difficulties was the involvement of his wife’s relatives in “marriage scams” with various people from Vietnam.

The applicant claimed that he had been pressured by his wife’s relatives to contribute $15,000 towards a sum of $25,000 which was to be paid to a man known as “Jimmy Duc” for Duc to enter into a sham marriage with the applicant’s sister-in-law.  Duc’s real name is Anthony Chiem.  He arrived in Australia in 1980.  He married the applicant’s sister-in-law in Vietnam in 1994.  Duc then sponsored his wife’s migration to Australia.  In evidence before the Tribunal, Duc denied that his marriage to the applicant’s sister-in-law was a sham, or that he had ever been paid money to marry her.

Early in 1995, the applicant and his wife separated.  She stated that she left him because of his violent behaviour towards her, and that for a period of time thereafter, she had obtained accommodation in a women’s refuge.  In his evidence before the Tribunal, the applicant denied that he had been violent towards his wife at any time prior to their separation.

The offences which formed the basis of the deportation order were described by the delegate as having been committed in the following circumstances.  On 7 March 1995, the applicant arrived at the residence of his wife’s aunt in Thomastown.  He said that he went there in order to try and persuade her to return home.  He had recently obtained employment.  He claimed that he was finally, by that date, in a position to make a contribution towards the money which had to be paid to Duc as part of Duc’s fee for his sister-in-law’s marriage.  He described himself as being anxious and depressed.  He begged his wife to return home.  When she refused, he attacked her with a meat cleaver which he had seized from the kitchen inflicting serious injuries upon her.  He also attacked both his sister-in-law, Tham Thi Huynh  and the aunt Linh Le, each of whom had endeavoured to help her.  He inflicted horrific injuries upon his sister-in-law, almost severing her left wrist entirely, and severely lacerating her right hand and severing the tendons of one finger of that hand.  The effect of these injuries was to leave Ms Huynh with little or no movement in either hand.  She was, in effect, permanently incapacitated. 

The injuries inflicted upon his wife included lacerations to her scalp, forehead, lower right arm, fingers, and lower left leg.  The wounds to her head caused her to haemorrhage, and she required hospitalization.  She claimed to have been severely traumatised by the attack.  The clear implication to be drawn from her evidence was that, but for the intervention of her aunt and sister, she would have been more severely injured, if not killed. 

The wife’s aunt, was also stabbed or slashed by the applicant, in her case across the right upper back.  It transpired that she was three months pregnant at the time (though there was no evidence that this was known to the applicant). 

The applicant ran away after inflicting the wounds upon each of his victims.  He avoided apprehension for approximately 2 weeks.  Then, accompanied by his legal adviser, he gave himself up to the police.

After having been charged initially with attempted murder, the applicant eventually, on 3 July 1996, pleaded guilty in the Melbourne County Court to two counts of intentionally causing serious injury contrary to s 16 of the Crimes Act 1958 (Vic), and one count of intentionally causing injury contrary to s 18 of that Act. Each count of intentionally causing serious injury at that time carried a maximum term of 12 years and 6 months’ imprisonment (since increased to 20 years’ imprisonment), and the count of intentionally causing injury at that time carried a maximum term of 7 years and 6 months’ imprisonment (since increased to 10 years’ imprisonment). It should be noted that the Crown had available to it an alternative and lesser charge of recklessly causing serious injury pursuant to s 17 of the Act. However, a proposal by the applicant that he plead guilty to two counts under that section instead of the counts laid under s 16 was specifically rejected by the Office of Public Prosecutions when the matter of a plea of guilty was first canvassed by his legal representatives.

After hearing a plea on the applicant’s behalf, Judge White, in sentencing the applicant commented:

“These crimes arise out of an incident … when you attacked your three victims, being your wife, her aunt and her sister … with a meat cleaver in what can only be described as sickening circumstances.  All such attacks were unprovoked, although set in highly emotional circumstances, and took place in a short space of time as part of a continuous course of conduct.

I accept the submission of Mr Grant of counsel who appears in (sic) your behalf, that these attacks were not premeditated, but more so an aberration following you succumbing to pressure relating to a matrimonial breakdown and with your wife having indicated before she would return to you she wanted you to change your at times violent conduct.  I accept you did not come armed to the Thomastown house and that you obtained the meat cleaver from the kitchen there when further attempting to persuade your wife to return to you.

Your attacks on these defenceless women were most serious, with the physical injury consequences for Mrs Huyen (?), the victim in Count 2, being the most serious as her left wrist was almost amputated and she has required much surgery with much restriction of use of her hand and has suffered a great interference, and continues to do so, with her capacity to enjoy her life and to work.

I have read the victim impact statements of the three victims and apart from the physical consequences all these ladies have suffered psychological reaction of varying degrees with flashbacks to the horrifying circumstances of the attacks, with Mrs Lee (sic) requiring psychiatric help. All experience episodes of fear and I take these matters into account.”

Judge White went on to identify a number of matters which he found to mitigate the gravity of the offences.  These included the applicant’s difficult personal circumstances, the fact that he had no prior convictions, and that he had pleaded guilty to the offences.  His Honour observed:

“I accept this as indicating remorse on your part and it is consistent with the opinion of Mr Tim Watson-Munro, forensic psychologist, who examined you on 30 June last.”

Mr Watson-Munro had given evidence on the plea that, owing to the deteriorating marital relationship, the applicant had, at times, consumed alcohol to excess, and that at the time of the commission of these offences he had been drinking.  His Honour also took into account as a mitigating circumstance the fact that the applicant spoke little or no English and that he had, since being taken into custody, adopted the approach of avoiding other Vietnamese in gaol with a view to avoiding further trouble.  The applicant’s marriage was, of course, at an end.  He had no other family in Australia, which meant that the conditions under which he would serve his sentence would be particularly onerous.

Though his Honour was invited by the Crown to sentence the applicant upon the basis that he was a “serious violent offender” (pursuant to the provisions of s 5A of the Sentencing Act 1991 (Vic)) he elected not to do so. His Honour described the applicant’s conduct as “worthy of the utmost condemnation”. He sentenced the applicant to be imprisoned on counts 1 and 2 for a term of 3 years’ imprisonment on each count, and on count 3 for a term of 6 months’ imprisonment. He directed that 6 months of the term of imprisonment on count 2 and 3 months of the term of imprisonment on count 3 be served cumulatively upon each other and upon the sentence for count 1. This produced a total effective sentence of 3 years and 9 months. His Honour directed that the applicant serve a minimum of 2 years and 3 months before becoming eligible for parole.

When the applicant was first interviewed by the police on 21 March 1995, he denied any involvement in the events of 7 March 1995.  He maintained that stance at his committal hearing which was conducted over a period of some days in December 1995.  It was not until shortly before his trial was scheduled to commence that the applicant signified a willingness to plead guilty, not to the offence of attempted murder as originally charged, but to the lesser offences contained in the presentment.

On 26 February 1997 the applicant was informed by letter from the Department of Immigration and Multicultural Affairs that as a result of his having been convicted of the offences to which he pleaded guilty before Judge White, and of having been sentenced to the term of imprisonment set out above, he had become liable to deportation from Australia. He was informed that he would be contacted by an officer of the Department shortly thereafter to arrange an interview. He was also provided with a copy of a pamphlet entitled “Australia’s Criminal Deportation Policy” and a copy of ss 200 and 201 of the Migration Act, those being the relevant provisions governing his situation. 

The applicant was interviewed on 21 March 1997.  During the course of that interview he raised for the first time a new and quite different version of the circumstances leading up to the commission of the offences.  The notes prepared by the interviewing officer reveal that, through an interpreter, the applicant gave the following account of the events of 7 March 1995.  He stated:

“Two weeks later I went to the aunt’s place without informing them that I was coming.  I met Jimmy Duc and Tham (my sister-in-law) there.  She made a few calls.  I felt the situation was no good and I went to two neighbours’ house.  I then went back to aunt’s place and saw 3 young men there as well as my wife, her aunt, sister-in-law & Jimmy Duc.  The 3 men were armed with an iron bar and 3 knives. One of them hit me with the iron bar.  Jimmy Duc was also one who was armed.  At first we had a conversation and then I was hit.  The other three men attacked me with the knives.  I knew a bit about martial arts.  I used my right arm to push the iron bar away.  I picked up one of the knives and they started attacking me.  I had to defend myself.  I started being attacked from behind.  I randomly stabbed with the knife.  Theye (sic) were (7) seven against me.  As a consequence, I hurt one man and three women.  My wife, her aunt and my sister-in-law.  The other victim (man) could not be found.  I went to the police station a few days later (2 days later).  Someone else called an ambulance.  I was locked up by the police so I couldn’t make any enquiries.  I thought the other parties would take revenge so I was scared.  This was a set up by the aunty’s family.” (emphasis added)

On 3 April 1997, the applicant wrote a letter to the Department of Immigration in which he elaborated further upon the circumstances surrounding the commission of the offences as he now described them.  The translation of that letter was before the Tribunal.  The applicant stated:

“… five days later I went to my wife’s aunt’s house and DUC and THAM were there.  When I arrived there were two telephone calls in English and Duc made a further two calls in English all of which made me apprehensive.  I went to a friend’s house for 15 to 20 minutes before returning to my wife’s aunt’s house.  On entering the house I saw four Vietnamese youths, strangers, Duc, my wife, her sister and their aunt.  In all eight persons.  I walked into the lounge room and sat on the lounge chair and one of the youths asked me if I knew their identity to which I replied in the negative then, before my wife’s Aunt was able to introduce the youths, one of their number took a metre long iron bar from behind the lounge and hit me.  I parried the blow and took the iron bar from him and hit him while the others grabbed a knife from behind the lounge to attack me.  I retaliated with the iron bar, the youth dropped the knife and I, luckily, was able to get the knife while the others immediately fled.  Several days later I went to the house of a friend looking for LUC, another friend, when someone suggested I should the incident to the police (sic).  I still had the knife and was aware that at the time I was terrified because I did not know how many people were there and it was not until I went there that I became aware of the number.  When I entered only then did I realise that my wife’s family had set me up to kill me so as to prevent me from reporting this racket.  That day I was unaware that I was injured in the hand.  Even today I am afraid that my going to the house was wrong, as by reporting to the police has resulted in me being gaoled for tow (sic, two) years.  The unfortunate incident was not of my doing for which I am being returned to Vietnam after six years residence in Australia.  I have not done anything illegal and declare this is the first time in my life I have ever been in gaol.”   (emphasis added)

It will be apparent that there are some discrepancies between the account given by the applicant in the interview on 21 March 1997 (where he spoke of three young men having been at the Aunt’s place) and his letter of 3 April 1997 (where the number had increased to four).  Moreover, his account of having gone to the police station two days after the incident at the house was demonstrably incorrect.  The evidence established clearly that there was a period of 14 days between the commission of the offences, and the date on which he surrendered himself to the police.

The applicant’s version of what had occurred on 7 March 1995 given for the first time on 21 March 1997, and substantially repeated in the letter of 3 April 1997, was in direct conflict with the sworn evidence of each of the three victims of his attack which had been given at his committal hearing.  Their account was of an unprovoked attack by the applicant.  It was also in direct conflict with the evidence of Chiem given during the committal.  Chiem was also called as a witness before the Tribunal.  He specifically denied the applicant’s story of having been attacked in the house, and of having, in effect, acted in self-defence.  It should also be noted that the three victims of the assaults wrote jointly to the Department of Immigration and Multicultural Affairs on 8 May 1997 confirming the truth of their original sworn testimony, and denying absolutely the applicant’s revised version of what he now said had occurred on 7 March 1995.  That document was also before the Tribunal.

The applicant’s failure to have suggested at his committal, or during the course of his plea, that he had himself been violently attacked immediately prior to launching himself upon his victims meant that the Tribunal undoubtedly would have approached the new version of events with caution.  It bore all of the hallmarks of a recently concocted story designed to assist the applicant in his efforts to avoid deportation.

The Proceedings Before The Tribunal

When the matter commenced, the applicant’s legal representative, Mr Hardman, after announcing his appearance, informed the Tribunal that he understood that there was an objection to certain evidence which he sought to lead.  He requested a ruling upon the admissibility of that evidence, and foreshadowed that he would outline what the applicant wished to say, as a starting point.  The Tribunal indicated that it would be preferable if Mr Hardman were to proceed to lead the evidence, subject to any objection which might be taken.  During the course of this preliminary discussion the Deputy President stated that he had read the material lodged with the Tribunal in this matter.  That, of course, included the notes of the interview of 21 March 1997 and the translation of the applicant’s letter dated 3 April 1997.

Mr Hardman then stated that though the applicant accepted the fact of his conviction, he contended that there were some circumstances which had not emerged at his trial which were relevant to the decision which the Tribunal was required to make in the matter.  He then called the applicant to give evidence.

After dealing with background matters, many of which were not contentious, the applicant was asked about the circumstances surrounding the commission of the offences.  He stated that when he arrived at the Aunt’s house he heard people speaking on the phone in English.  He claimed that he was frightened that those people might harm him in some way so he went to visit a friend’s home, nearby.  He intimated that he believed that English was being spoken so that he could not understand what was being said.  He reiterated that he was frightened that he would be harmed.  Upon his return from his friend’s home to the Aunt’s house he claimed he saw Jimmy Duc, together with his sister-in-law, his wife, her Aunt and three young men whom he claimed he had never seen before.  He said that those men shut the door behind him.

The transcript of the proceedings before the Tribunal continues as follows:

“Mr Hardman:          Did you see those people before you went in the house ?
The Interpreter:  No.
Mr Hardman:             Did anybody say anything ?

The Interpreter:         When I came inside, then there’s two of the three young men talk to me and said to me, have I ever known them?

Mr Hardman:             What happened next?

The Interpreter:         Those two young men then jumped on me, hold me …

Mr Rigby:I object, Deputy President.

Deputy President:      Just wait; do not answer that question for a moment.  Yes, Mr Rigby.

Mr Rigby:I object, Deputy President, on the basis that the applicant was convicted as the sentencing judge’s remarks show at page 99 of the sentencing, of “An unprovoked attack on these three women”.  The Judge referred to “A continuous course of conduct”, the one incident, and on the basis of the authorities that of – that are in our list of authorities, Gundaw v Lai (sic) the applicant is not – it is not admissible, this evidence, to show that the events upon which he was convicted included other assaults upon him, because what is being done is to …

change this from an unprovoked attack which is what the judge found and which is what he pleaded guilty to, to an attack that was provoked by an assault on him, and Lye, I think is particularly relevant here because in that case, the applicant had pleaded guilty to assault and the Tribunal found that – held that it was not open to the applicant to deny at the Tribunal that he had kicked this person – kicked a person while they were on the ground by saying now that he actually punched the person and Morling J said that the judge had made these findings of fact … and it was not open to the applicant to go outside the parameters of those findings, and that is what is happening now in my submission.”

Mr Rigby, who appeared for the respondent below, referred specifically to the fact that at page 20 of the transcript of the plea before Judge White it was noted that the Office of the Director of Public Prosecutions had rejected a plea of recklessly causing serious injury, which had been offered on behalf of the applicant, and had insisted instead upon a plea to the more serious form of the offence, namely intentionally causing serious injury. Mr Rigby then referred specifically to the account given by the applicant in the documents which had been produced to the Tribunal pursuant to s 37 of the AAT Act.  He observed that the applicant now appeared to be saying that the three female victims had been randomly and unintentionally injured as he sought to defend himself from a murderous attack.  He submitted that this was a version of the events which was inconsistent with the very basis upon which the plea had been accepted by the Crown.

Mr Hardman, in reply, denied that the applicant was in any way seeking to resile from his plea of guilty to what had been said to be an unprovoked and intentional attack.  He submitted that it was, however, appropriate for the Tribunal to look at the circumstances which surrounded the offence provided that what was being done did not amount to impugning the verdict of the County Court. 

The Deputy President accepted that the Tribunal could look at the circumstances surrounding the offence, but indicated that it was not open to the applicant to place material before him which, in effect, amounted to a total denial of his guilt of the offences to which he had pleaded guilty.

Mr Hardman referred to Ridley v Secretary, Department of Social Security (1993) 42 FCR 276 in support of his contention that it was permissible for the Tribunal to receive the evidence which he sought to adduce. I shall return to that decision later in these reasons for judgment.

After further debate, and some consideration of other relevant authorities, the Deputy President enquired of Mr Hardman how it could be said that adducing evidence of the kind which had been foreshadowed could do other than challenge the very basis of the convictions relied upon by the delegate in determining that the applicant should be deported.  After again being assured by Mr Hardman that the evidence concerning the alleged attack upon the applicant was being led, not in order to impugn the convictions, but rather to place before the Tribunal matters which were said to be relevant to the decision to deport, the Deputy President ruled that the evidence would not be received.  He also refused to receive evidence concerning various bruises said to have been seen upon the applicant’s body shortly after the events of 7 March.  It was common ground that the only purpose for which that evidence was to be led was to confirm the applicant’s account of having been attacked by the young men in the house.

It must be stressed that the Deputy President did not rule out any evidence concerning the general background to the assaults.  This included evidence of the alleged marriage racket which the applicant claimed lay behind the acrimony between himself and his wife’s family. The evidence which was excluded was that which, in substance, amounted to a claim of lawful self-defence, and that which amounted to a denial by the applicant that he had ever intended to cause injury, serious or otherwise, to anyone. 

Notwithstanding the ruling by the Deputy President, the applicant later testified that, on the day in question, he had no intention of harming any of his victims – he had merely been trying to get out of the house in order to escape.  He also stated that he regretted having caused such severe injuries to his sister-in-law, and went on to say “but I did not have any intention to cause it”. 

The Tribunal’s decision

After considering all of the material before him the Deputy President determined that the decision to deport the applicant should be affirmed.  He considered the nature of the offences which the applicant had committed as involving “horrific attacks upon the victims” and as being “very serious”.  When dealing with the risk of recidivism, he concluded that the applicant was not an acceptable risk.  He noted that his observation of the applicant’s demeanour revealed that he continued to harbour resentment towards his victims.  He treated the applicant as having negligible family or social ties in Australia.  He evaluated the contribution to the Australian community which the applicant was potentially capable of making, as well as his past contribution, and gave these matters such weight as he regarded as appropriate.  He considered also the question of hardship to the applicant if he were to be deported.  The Deputy President concluded his reasons for affirming the deportation order in the following terms:

“In favour of deportation is the seriousness of the offences, which involved extremely violent behaviour.  From a community standpoint, a relevant consideration is the impact of this behaviour on the physical and psychological health of the victims, and the community cost in their rehabilitation.  These factors, together with an unacceptable risk of recidivism as I find, notwithstanding his previous good character, outweigh considerations personal to the applicant which would permit him to remain in Australia.”

The appeal to this Court

The amended notice of appeal initially raised some nine questions of law and an even larger number of grounds of appeal, some of which plainly overlapped. During the course of submissions, however, Mr Lancy, counsel for the applicant, confined his arguments to four questions of law.  These are set out in the amended notice of appeal as follows:

“A.Whether the Tribunal failed to give any or any proper consideration to the binding authority of Ridley v Secretary, Department of Social Security (1993) 42 FCR 276, in its ruling that the applicant was not permitted to lead certain evidence.

B.Whether the Tribunal failed to take a relevant consideration into account in the exercise of its power in that it failed to consider properly or at all the applicant’s submission that there were matters which were relevant to the decision to be made by the Tribunal which is an administrative decision such matters not necessarily being relevant to the determination of guilt and sentence in the County Court.

C.Whether there was a breach of the rules of natural justice in that the Tribunal denied to the applicant an opportunity to lead evidence and make submissions with respect to the circumstances surrounding the commission of the offence.

…

F.Whether the Tribunal failed to take into account a relevant consideration in the exercise of its power namely, that implicit in a plea of guilty is an element of remorse.”

These questions of law, and the grounds of appeal based upon them, can be described in shorthand form as the conviction grounds (A, B and C), and the remorse ground (F).

The conviction grounds

Mr Lancy contended that the Tribunal had erred in law in refusing to receive the evidence concerning the presence of the unknown young men in the house, and of their attack upon the applicant.  He also contended that the evidence of the applicant’s bruising ought to have been received.  He put his submissions in several ways.  He argued that the Tribunal had denied the applicant procedural fairness by rejecting prematurely the evidence which had been foreshadowed because the Deputy President could not properly have known, when he made his ruling, what were to be the precise limits of that evidence.  He submitted that it could not be assumed that, in its ultimate form, the evidence would have the effect of undermining the convictions themselves, rather than merely providing “context” to the commission of the offences.

Mr Lancy also submitted that in an administrative hearing a party is not to be prevented from placing before the Tribunal any material which bears upon the exercise of the administrative discretion which is reposed in the decision-maker.  This principle holds, he contended, even if that material tends to impugn a conviction, or to challenge and controvert the essential facts which underlie such a conviction.  Mr Lancy also submitted, in the alternative, that while it may not be permissible to impugn or controvert a conviction in proceedings brought for that specific purpose, it must always be permissible for a person to defend proceedings brought against him which depend in any way upon proof of his having committed an offence, by challenging the essential facts which are said to underlie his conviction for that offence.  Mr Lancy relied upon certain observations of Kennedy J in Mickelberg v The Director of the Perth Mint [1986] WAR 365 at 382 as support for this modified contention.

Mr Gunst QC, on behalf of the respondent, submitted that there had been no denial of procedural fairness by the Tribunal.  He submitted that when the Deputy President upheld Mr Rigby’s objection and rejected further questions directed to the events leading up to the wounding of the three victims, the applicant proposed to give evidence in support of his revised version of the events of 7 March 1995.  That version was before the Tribunal in any event in the form of the notes of the interview of the 21 March 1997, and the letter of 3 April 1997.  It was not suggested by Mr Hardman that his questions were directed to achieving any object other than to confirm the truth of that revised version.  Indeed, during the course of his submissions to the Court, Mr Lancy frankly conceded that this was likely to have been Mr Hardman’s objective. 

Mr Gunst challenged Mr Lancy’s broad contention that the decision in Ridley was authority for the proposition that it is open to any person subject to deportation to seek to impugn, whether before the delegate, or before the Tribunal, the very basis of the conviction relied upon as justification for the deportation order.  Mr Gunst also submitted that nothing in Mickelberg justified the contention that the applicant had been entitled to place before the Tribunal a version of the events surrounding the commission of the relevant offences which was tantamount to a complete denial of any culpability on his part.

I shall deal first with the contention that the applicant was denied procedural fairness because the Tribunal ruled prematurely against receiving the evidence which he was about to give.  I am not persuaded by this argument.  In my view, it is perfectly clear that when the Deputy President ruled against receiving this evidence Mr Hardman was endeavouring to place before the Tribunal the revised version of the events of 7 March 1995 which the applicant had proffered for the first time in the interview of 21 March 1997, and which he reiterated in the letter of 3 April 1997.  A careful reading of the transcript of the proceeding before the Tribunal appears to me to admit of no other conclusion. 

The duty to act fairly, in the sense of according procedural fairness, may of course be breached if a party is not given a reasonable opportunity to make relevant submissions, to give evidence and to call witnesses in support.  See generally R v Windridge; ex parte Pacific Coal Pty Ltd [1992] 2 Qd R 180 at 191 per Thomas J (with whom Demack and Mackenzie JJ agreed); Thai v Deputy Commissioner of Taxation (1994) 34 ALD 132 at 150-151 (Full Federal Court); Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 at 53 per Davies J; Rettke v Comcare (unreported, Full Federal Court, 26 October 1994) and Dobbie v Department of Social Security (unreported, Full Federal Court, 7 April 1995). 

At the same time, however, the opportunity to make relevant submissions, to give evidence, and to call witnesses in support which must be afforded will always be qualified by a requirement that the material and arguments sought to be presented must be sufficiently relevant and significant to warrant being received. 

A court may refuse to grant relief based upon a suggested denial of procedural fairness if it may safely be concluded that the completion of the submissions which were cut off could have made no difference to the outcome – see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146. The fact that a party has not been permitted to call a witness will not be sufficient to establish a denial of procedural fairness if there is nothing to suggest that the witness’s testimony could have been relevant – see R v Kuczynski (1994) 72 A Crim R 568 at 576 and at 591.

When Mr Rigby objected to the evidence concerning the alleged attack upon the applicant because this was said to be an impermissible attempt to impugn the convictions relied upon in support of the deportation order, he referred specifically to the material in the documents produced under s 37 of the AAT Act. These documents included both the notes of the interview of 21 March 1997, and the letter written by the applicant on 3 April 1997. Mr Hardman did nothing to dissuade the Tribunal from proceeding upon the basis that the evidence which was to be led was, in substance, that which was contained in the s 37 documents which the Tribunal had before it.

Mr Lancy, in the course of his submissions to the Court, conceded that the transcript of the proceedings before the Tribunal indicated that what Mr Hardman was seeking to elicit from the applicant was “in broad terms” the revised version of events, ie that which was set out in the s 37 documents. That concession was properly made. As I have already indicated, no other conclusion is reasonably open.

It cannot be a requirement of procedural fairness that, in order to deal with an objection to the admissibility of evidence which is said to be irrelevant, an administrative decision-maker must first hear the totality of that evidence.  Once the nature of the impugned evidence is made sufficiently clear, as a matter of practical reality, a ruling can properly be made upon its admissibility.  That stage had, in my opinion, been reached when the Deputy President declined to receive any further evidence of the alleged attack upon the applicant.  Of course, if that evidence was correctly excluded, it follows that evidence of the bruising allegedly sustained by the applicant was also correctly excluded.

Moving from the contention that the applicant had been denied procedural fairness, Mr Lancy’s primary submission was that the applicant was entitled as of right to place before the Tribunal his revised version of the events of 7 March 1995.  This included his claim that there had been a murderous attack upon him by three (or four) unknown armed assailants, his assertion that he had responded in self-defence, and his contention that the injuries to the three women were the unintended result of the applicant randomly striking out while defending himself.  Mr Lancy submitted that I was bound by the decision of the Full Federal Court in Ridley v Secretary, Department of Social Security (supra) to so hold.

In Ridley (supra) the Tribunal had set aside a decision under the Social Security Act 1947 to raise as a debt, and recover by withholding family allowance, the amount of widow’s pension paid to the applicant between 1981 and 1987. Although she had been convicted on charges of making false statements concerning a de facto relationship, and of knowingly obtaining a benefit that was not payable, the Tribunal decided that the applicant had not been living in such a relationship. The Tribunal’s decision was set aside on appeal, at first instance. The applicant appealed to the Full Court. That Court allowed the appeal and restored the Tribunal’s decision.

When the matter was heard, at first instance, Hill J dealt with a contention by the Department that Mrs Ridley’s convictions on the charges brought against her precluded the Tribunal from finding facts contrary to facts essential for those convictions.  Neither details of the charges and convictions nor any record of the evidence adduced on the hearing of those charges had been submitted to the Tribunal.  His Honour rejected that contention.  He held that the Full Court in Saffron v Commissioner of Taxation (1991) 30 FCR 578 had determined that it was not open to the Department to submit that Mrs Ridley’s convictions were conclusive proof of the essential facts on which those convictions were based. His Honour noted that his own earlier decision in Commissioner of Australian Federal Police v Butler (1989) 91 ALR 293 which had suggested that there was a principle of public policy which prevents a court from going behind a conviction had to be read subject to the doubts which had been cast upon that principle by the Full Court in Saffron.  His Honour went on, however, to hold that the Tribunal’s decision was vitiated because it had given too little weight to the fact of conviction.  It was this latter finding which, in Ridley, was the subject of challenge before the Full Court. 

A notice of contention was filed before the hearing of the appeal to the Full Court.  The Department sought to put in issue the finding by Hill J at first instance that Saffron necessitated the conclusion that it was not open to the Department to submit that Mrs Ridley’s convictions were conclusive proof of the essential facts upon which those convictions were based.  The notice of contention also sought to argue that it would be an abuse of process to permit the Tribunal to go behind Mrs Ridley’s convictions.

During the course of the appeal in the Full Court, counsel for Mrs Ridley made no submissions on the contentions raised in the notice.  The Court observed that it had not had the benefit of full argument on the points sought to be raised, and it would therefore be inappropriate to enter upon any detailed consideration of those issues.  The Court then prefaced its remarks upon those matters by noting that it would make “the following limited observations”.  The Court stated (at 281)

“With regard to the submission that it was ‘contrary to public policy’ and an ‘abuse of process’ to permit Mrs Ridley to ‘re-litigate’ before the Tribunal an issue determined against her by the convictions recorded in the court of petty sessions, it is necessary to re-state the function of the Tribunal.  The Tribunal has been established to review decisions of administrators and, if necessary in conducting that review, to exercise the powers and discretions of decision-makers.  The provision of a forum in which a party has an opportunity to present material and make submissions pertinent to the exercise of administrative powers does not make a hearing of that type a proceeding within a federal system for the administration of justice.  The adoption by the Tribunal of a (sic) adversarial procedure in the conduct of its review does not make that review part of the process of litigation. It follows, therefore, that review of an administrative decision does not involve consideration of whether the conduct of the review may bring the administration of justice into disrepute. Whatever procedure the Tribunal may adopt to carry out its statutory duties, it performs solely administrative functions in deciding what administrative decision is appropriate. The AAT Act provides to a person affected by the exercise under an enactment of an administrative decision-making power the right to seek to have a reviewing authority (the Tribunal) exercise that decision-making power. That person is entitled to present to the Tribunal any material that ought to be taken into account in the making of that decision. If that material also challenges facts that were essential for the conviction of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out by excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based.”

The judgment of the Court went on to hold that Hill J, at first instance, had erred in determining that the Tribunal had given insufficient weight to the fact that Mrs Ridley had been convicted of offences under the Social Security Act. 

The passage set out above from the judgment of the Full Court in Ridley to which Mr Lancy referred must, of course, be read in context.  It must also be considered in the light of other, earlier decisions.  These include several judgments of the Full Court which are in point. 

Mrs Ridley had pleaded not guilty in a Court of Petty Sessions, but had been convicted.  She had made no admissions of guilt.  As noted above, no details of the charges which she faced were before the Tribunal.  Moreover, no details and no record of the evidence adduced on the hearing of the charges had been submitted to the Tribunal in her case. 

The Full Court in Ridley prefaced its observations by noting that they were “limited” because there had been no argument advanced by Mrs Ridley’s counsel in opposition to the notice of contention.  Nonetheless, if Ridley, properly understood, supports Mr Lancy’s primary contention, namely that every person subject to deportation has a right to place before the Tribunal such evidence as he seeks to lead, though its effect, and possibly its intent, may be to impugn the very basis of his conviction, I would, of course, be bound to give effect to that judgment by finding for the applicant in the present proceeding.

It seems to me, however, that the Full Court in Ridley did not intend to lay down any such wide ranging principle.  It must be remembered that in Ridley the legal principles enunciated by Hill J, at first instance, reported as Secretary, Department of Social Security v Ridley (1992) 40 FCR 43 were, in substance, approved by the Full Court. His Honour had rejected a submission by the Department that Mrs Ridley’s convictions in the Court of Petty Sessions were conclusive proof of the essential facts upon which those convictions were based.  Accordingly, he rejected a contention that, in the circumstances of that case, evidence contradicting those essential facts was inadmissible. 

His Honour noted, correctly, it seems to me, that this contention was in conflict with the decision of the Full Court in Saffron.  The question in Saffron had been whether the applicant Saffron could be permitted in taxation appeals brought by him to the court to deny that he and another had made an agreement to the effect that not all of the cash received from the conduct of businesses in which both were involved would be declared to the Commissioner of Taxation.  That denial, it was agreed, contradicted one of the matters of fact upon which the applicant’s conviction for conspiracy to defraud the revenue had been based.

Hill J noted that Davies J in the Full Court in Saffron had referred specifically to a distinction drawn by Viscount Simon in General Medical Council v Spackman [1943] AC 627 at 634-635. That distinction was between two categories of case. As Hill J noted in Ridley (at 50):

“The first category was where the decision challenged was itself based on the fact of conviction.  In such a case the person seeking to upset the challenged decision could not go behind the fact of conviction and endeavour to show that he was innocent of the charge.  In the second category the conviction was a relevant factor but the decision sought to be challenged was not based upon it.  In the second category it was open for a person seeking to challenge the decision to go behind the fact of conviction and challenge the essential facts upon which the conviction was based.  Commenting upon the distinction Davies J [in Saffron] said (at 582):

“The rationale for the distinction between the two categories is, of course, that in the first of the categories the exercise of the power arises out of, and is founded on, the conviction.  The power conferred is not a power to reconsider that matter or the essential facts on which a conviction was based but a power to consider matters of discretion and like consequential matters which flow from the established fact of conviction.  When the power is not so founded, then all relevant matters, including the facts on which the conviction was based, are open.”

His Honour illustrated as examples of the first category of case decisions of Full Courts of this Court in Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Degerli v Minister for Immigration and Ethnic Affairs (1981) 4 ALN N39 and Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 …”

Ridley undoubtedly was an example of what Viscount Simon described as the second category of case.  Mrs Ridley’s convictions on charges of having committed offences under the Social Security Act did not form the basis of the exercise of the administrative discretion which was the subject of challenge in that case. 

The position of the present applicant is different. The Minister’s power to order the deportation of a non-citizen who has been convicted in Australia of a particular class of offence is contained within ss 200 and 201 of the Migration Act.  These sections provide as follows:

“Deportation of certain non-citizens

200.     The Minister may order the deportation of a non-citizen to whom this Division applies.

Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes.

201.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; or

(B)for periods that, when added together, total less than 10 years; or

(i)was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder;

(A)for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or

(B)for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and

(a)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 a person.”

It seems clear that the Full Court in Saffron not only recognised, but endorsed, the distinction which Viscount Simon drew between the two categories of case to which his Lordship referred.  The first of those prevented evidence from being received which impugned a conviction.  The second permitted that to occur, at least where that was the consequence of adducing the evidence, and not the purpose in doing so. 

What Davies J said in Saffron (at 582) was that the first category (which had been applied by the Full Court in deportation cases on at least three occasions, in Daniele, Degerli and Gungor and twice also by single judges of the court –see Lai v Minister for Immigration Local Government and Ethnic Affairs (1991) 28 FCR 346 and Beckner v Minister for Immigration Local Government and Ethnic Affairs (supra)) governed these cases. In deportation pursuant to s 200 a conviction is the foundation for the exercise of the power. It follows that in such cases no challenge can be made to the fact of the conviction or to the essential facts on which it was based.

Davies J in Saffron, also said at 582:

“But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then, even if the conviction be relevant, a challenge may be made to the essential facts on which it was based.”

Lockhart J, in Saffron, referred to the decision of the Full Court in Gungor and stated of that decision at 590:

“All members of the court (Fox, Fisher and Sheppard JJ) held that, when the Tribunal was reviewing a decision of the Minister to deport the respondent, the earlier conviction must be conclusive as to the guilt of the accused in relation to the offence charged and of the sentence imposed: (see per Fox J at 446).  Fox J pointed out that “serious practical questions” would arise if the position were otherwise as the Tribunal could then arrive at its own decision as to whether the person concerned was or was not guilty of the offence and whether the sentence was merited; and that it would be doing this on material gathered and considered at what could be a long time after the trial, with all the attendant problems. 

As was pointed out by the court in Gungor’s case (supra), the conviction is a necessary basis for the Minister’s deportation order so that the Minister must, in deciding whether to deport or not, take the prior conviction as a starting point.  It is plain from reading the judgments of Fox J and Sheppard J … that it is because the  conviction was the starting point for the Minister’s order that they were of the opinion that no challenge could be made to the conviction or the sentence imposed upon the respondent.”

Beaumont J, who dissented in Saffron, also cited with approval the decision in Gungor.  His Honour adopted the following reasoning from the judgment of Fisher and Lockhart JJ in Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358:

“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.”

It should be noted that in Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 at 468 Sheppard J expressed the view that cases involving deportation under the Migration Act “fall within Viscount Simon’s first category”.  With that view, I respectfully agree. 

Neither Daniele nor Gungor were referred to at all in the judgment of the Full Court in Ridley.  Both these cases had, however, been specifically addressed by Hill J at first instance, and the principles which they establish in the context of deportation cases, could hardly have been overlooked by the Full Court.  My reading of the judgment of the Full Court in Ridley, and in particular of the passage from the judgment of the Court upon which Mr Lancy almost wholly relies, satisfies me that the statement of principle set out in that passage was not intended to detract from the long standing and well established approach taken in the earlier authorities.

It follows that, in my opinion, it is not open to a person subject to deportation pursuant to s 200 of the Migration Act to invite the delegate or the Tribunal to consider evidence, which if accepted, would have the effect of setting at nought the conviction which is said to ground the deportation order. 

I have no doubt that the effect of the evidence which had been foreshadowed, and which was in the course of being led before the Tribunal when the relevant objection was taken, would, if accepted, have had just that effect.  It is inconceivable that the applicant’s revised version of the events which occurred on 7 March 1995 could be regarded as anything other than an attempt to raise a defence of lawful justification by way of self-defence.  If that revised account were to be accepted, he would have a complete answer to the charges to which he had earlier pleaded guilty - Zecevic v DPP (Vic) (1987) 162 CLR 645. Moreover, evidence by the applicant that he had not intended to harm any of his three victims was irreconcilably in conflict with his plea of guilty to offences which, by their very nature, required proof of specific intent. The Tribunal correctly, in my view, and in accordance with the authorities, refused to permit evidence of that type to be led.

As regards Mr Lancy’s alternative and modified contention that the applicant was entitled to give the evidence concerning the alleged attack upon him by reason of what Mr Lancy submitted to be a correct statement of principle enunciated by Kennedy J in Mickelberg v The Director of the Perth Mint (supra), the passage upon which Mr Lancy relied is as follows:

“It may be accepted that, in the present proceedings, the appellants are seeking directly to attack their convictions, but the critical consideration appears to me to be that they are doing so in order to defend a claim which has been brought against them, and they are not the initiators of proceedings which have the dominant purpose of retrying their criminal charges.  There is, in my opinion, nothing before us to enable this Court to conclude that the defence serves the dominant purpose of retrying the charges against them, notwithstanding that, the defence standing, this will be an incidental consequence.”

There are some similarities between this statement of principle, and that enunciated by Olney J in Commissioner of Australian Federal Police v Hatfield (1992) 106 ALR 335 at 350. Nonetheless, Mickelberg was plainly not a case which fell within Viscount Simon’s first category.  Nothing in the authorities of this Court to which I have referred, all of which treat deportation as, in effect, falling within that first category, suggests that the subject of a deportation order who seeks review, not being the “initiator” of the proceeding, should be free to invite the Tribunal to find that his convictions were wrongly based. 

It is clear that, in recent years, many criminal trials have become longer, and in some cases, more complex – R v Higgins (1994) 71 A Crim R 429. Many years may have elapsed from the date of a conviction until a deportation decision based upon that conviction is taken. It seems to me highly unlikely that Parliament would have contemplated that the process of review in such cases should include a complete reventilation of the issues which arose at trial. If an applicant were to be permitted so to impugn his conviction, the Minister, who had nothing whatsoever to do with the original prosecution, would plainly have to be given the opportunity to call such evidence as he thought fit to sustain the verdict of the jury or, as in the present case, the plea of guilty. The practical difficulties associated with the adoption of such a course are too obvious to require restatement. They merely add to the objections in principle to the adoption of that course.

The approach for which Mr Lancy contends is not dissimilar, in some respects, to the reasoning which underlies the so-called rule in Hollington v Hewthorn.  That rule has been legislatively abrogated in many jurisdictions.  It has been doubted by courts of the highest authority.  It carries little weight with me.

If the applicant has a proper basis upon which to challenge his conviction, he is not totally without recourse.  He has available to him the ordinary appellate processes in crime, including the right to seek leave to appeal out of time.  In the case of new material which satisfies the very strict requirements of “fresh evidence” he has available as well the procedure of a petition for mercy, or its equivalent.  I do not ignore the difficulties associated with invoking such procedures.  Those difficulties exist by design, and for proper objectives.   They are not to be circumvented by permitting an applicant who is liable to deportation to impugn his conviction before a Tribunal which, by composition, and by process, is manifestly unsuited to perform the task of evaluating fresh claims of innocence.  The Administrative Appeals Tribunal is not bound by the rules of evidence.  Nor are Tribunals generally so bound.  The opportunities for mischief which flow from a rule such as that for which Mr Lancy contends, and the potential of such a rule to bring the system of criminal justice into disrepute, cannot be ignored.  Tribunals are, rightly, not entrusted with the task of determining matters of guilt or innocence.  They should not, therefore, embark upon any evaluation of the propriety of any conviction save insofar as the law permits.  That should always be within limits which are as narrowly circumscribed as possible, for example those identified in Ridley (supra).

Remorse

Mr Lancy contended that the Tribunal erred in law in failing to take into account the fact of remorse on the part of the applicant and, in particular, that implicit in a plea of guilty is an element of remorse.  He noted correctly that evidence had been led on the plea before Judge White to the effect that the applicant was remorseful for his conduct, and that his Honour had stated:

“Further, you have pleaded guilty to three serious charges and have saved the community time and money even though you have been granted aid by the Legal Aid Commission to conduct a trial.  Your conduct has also saved the victims the need to re-live their experiences in the witness box.  I accept this as indicating remorse on your part and it is consistent with the opinion of Mr Tim Watson-Munro, forensic psychologist, who examined you on 30 June last.”

Mr Lancy submitted that, in his reasons for decision, the Deputy President had failed to give any, or any adequate weight to this factor.  He contended that this had tainted the Deputy President’s conclusion that he was not, in the circumstances, satisfied that the applicant was an acceptable risk.

It should be noted that the Tribunal referred in terms to the question of remorse.  Moreover, the Tribunal referred to the report dated 31 July 1997 of Dr Peter Doherty, a consultant psychiatrist who had interviewed the applicant on two occasions.  Dr Doherty expressed the opinion that the applicant had shown remorse and regret with regard to the seriousness of the injuries sustained by his victims.  He rejected the conclusion of the decision-maker that the applicant had shown no remorse, and had instead sought to portray himself as a victim.

The Tribunal, however, also had before it a report dated 6 August 1997 prepared by a forensic psychologist, Mr David Ball.  This report was much more guarded than that prepared by Dr Doherty.  Under the heading “remorse” Mr Ball stated:

“I noted from the County Court transcripts of Mr Luu’s Plea that His Honour Mr Justice White (sic) and psychologist, Mr Watson-Munro accepted that Mr Luu was remorseful for his offences.  At interview with me, Mr Luu displayed no remorse or victim empathy and gave me the impression of being very angry with his victims.  Mr Luu said ‘I don’t feel much for them because they might have been the ones who tried to kill me.’”

The Tribunal had the advantage, of course, of observing the applicant give his evidence, and being cross-examined upon it.  The Tribunal concluded:

“To my mind, the applicant’s evidence reveals that he harbours resentment towards his victims.  Some bitterness was detected in his responses.  For example, he considered that his wife used him as a “ticket” to get to Australia and regards the attitude of his wife and her family towards his deportation as portraying an intention to deny him the opportunity of exposing their illegal activities.  Further, the weight to be given to Dr Doherty’s assessment is diminished by the history upon which he relied. 

I am not, in the circumstances, satisfied that the applicant is an acceptable risk.”

There is nothing in the Tribunal’s reasons for decision which persuades me that the finding that the applicant is not an acceptable risk is one which is flawed by reason of the failure to give any, or any adequate weight to the element of remorse.  The Tribunal had regard to what Brennan J, as President of the Tribunal, stated in Re Salazar-Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at 100:

“The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk.”

I am mindful of the distinction between errors of law and errors of fact which is central to the role of the court in an appeal under s 44 of the AAT Act. In Vabaza v The Minister for Immigration and Multicultural Affairs (Goldberg J, 27 February 1997, unreported) his Honour stated:

“There is much learning as to what is involved in an error of law.  It is not necessary to rehearse all the relevant cases.  What should be identified is that in order to establish an error of law one needs to find, and this is not an exhaustive list, for example that the Tribunal failed to apply relevant legal principles, that it misconceived the relevant legislation, that there were no facts before the Tribunal which could support the findings it made, and that it misinterpreted relevant principles of law and legislation.  This is not intended to be a comprehensive list but what is important to identify is that an error of law does not involve a review of the facts, a contention that the Tribunal gave too much weight or insufficient weight to some evidence or that it rejected evidence and did not accept other evidence.”

See generally Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J. See also Devries v The Australian National Railways Commission (1993) 177 CLR 472 at 479 (as to the approach to be adopted by an appellate court when reviewing findings of fact made by a trial judge) and, as well, the principles laid down by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

Mr Lancy’s contention that the Tribunal gave insufficient weight to the question of remorse strikes me as being in essence a contention that the Tribunal made the wrong finding of fact.  Even if I am wrong about that, however, it seems to me that all that can be said is that, notwithstanding some material which pointed to remorse, the Tribunal preferred the views of Mr Ball, to the contrary, and its own observations of the applicant.  It cannot be said that the Tribunal “palpably misused” the advantage which it had in assessing the credibility of the applicant, nor that it acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence”, or which was “glaringly improbable”.  I am unable to accept the contention that the Tribunal erred in law in dealing with the issue of remorse.

Though Mr Lancy did not formally abandon all of the remaining grounds of appeal, he recognised that they involved, in substance, the contention that the Tribunal erred in fact rather than in law.  No arguments were advanced in support of those grounds.  There is, in any event, no substance in any of them.

It follows that the application must be dismissed, with costs.

I certify that this and the preceding twenty-five (25) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg

Associate:

Dated:             25 August 1998

Counsel for the Applicant:	Mr R Lancy
Solicitor for the Applicant:	Fernandez & Johnson
Counsel for the Respondent:	Mr C Gunst QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 July 1998
Date of Judgment:	25 August 1998