Minister for Immigration, Local Government & Ethnic Affiars v Abbott, K.J

[1992] FCA 301

Re: MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
And: KENNETH JAMES ABBOTT
No. S G95 of 1991
FED No. 301
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Immigration - Deportation - relevant factors to take into consideration - duration of lawful stay in Australia.

HEARING

ADELAIDE

#DATE 6:5:1992

Counsel for the Appellant: Ms S. Singh

Solicitors for the Appellant: Australian Government Solicitor

No Appearance for the Respondent.

ORDER

That this appeal be dismissed.

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

JUDGE1

Kenneth James Abbott ("the respondent") who was born in New Zealand on 28 January 1965, arrived in Australia for a working holiday on 8 June 1990. Unable to obtain work, he turned to crime. On 18 July, just over five weeks from his arrival, he participated in an armed robbery for which he was subsequently convicted and sentenced to six years imprisonment.

1. His conviction also led, on 7 May 1992, to an order under section 55 of the Migration Act 1958 ("the Act") that he be deported. The respondent successfully applied to the Administrative Appeals Tribunal for a review of the decision of the Minister's delegate; on 28 October 1991, the Tribunal recommended that the Minister revoke the deportation order and it remitted the matter for reconsideration in accordance with its recommendation.

2. The Minister's present appeal to this court raises a clearly defined and important issue. It challenges the accuracy of the following passage in the Tribunal's reasons:
   

"It was suggested by the respondent (i.e. 'the Minister') that the very short period of lawful residence in this case was a

consideration in favour of deportation. I do not regard this as a relevant consideration. A long period of lawful residency is a

factor against deportation which can appropriately be taken into

account. However, the opposite would, in my view, amount to a

further punishment; something which is among other things, outside the policy tabled before Parliament."

1. It is now claimed by the appellant Minister that this passage from the Tribunal's reasons erroneously advances a proposition of law that a short residency in Australia is not a relevant consideration when considering a question of deportation.

2. The quoted passage in my opinion contains two material errors. First, the Minister's argument that a very short period of lawful residence was a consideration in favour of deportation was erroneous; that argument was properly rejected by the Tribunal. The duration of a person's residence in Australia will always be a material consideration. So much is clear from the provisions of section 55 of the Act which allows for orders of deportation in respect of persons who have been present in Australia as permanent residents for periods of less than 10 years. Thus persons who have lawfully passed the 10 year threshold are immune from deportation by reason only of the commission of any criminal offence.

3. It stands to reason, therefore, that the a person's stay in Australia, the more it will assist him in fighting off a deportation order. Conversely, the shorter his stay, the less assistance will he gain from it. However, this is not the same as saying that a stay of short duration is a factor to be assessed positively in favour of deportation. The most that could be said against the interests of the relevant person is that he might not be able to obtain any benefit in his opposition to a deportation order from the duration of his short stay in Australia.

4. The second perceived error is the statement: "I do not regard this as a relevant consideration".

5. It would seem that in rejecting the Minister's primary argument, the Tribunal went too far. The subsequent reference to a further punishment suggests that the Tribunal not only rejected the Minister's argument but also positively concluded that by virtue of the fact that the respondent's stay was one of very short duration, it should have no regard whatsoever to the respondent's stay in Australia. This latter exercise was, for the reasons I have sought to explain,impermissible.

6. I have concluded that in every case of potential deportation, the duration of the relevant person's stay in Australia will always be a relevant consideration and it will be for the decision-maker and the Tribunal on review to determine what weight, if any, can be given to it in favour of the relevant person.

7. Notwithstanding the conclusions that I have reached, there were, as the Minister acknowledges, other grounds that justified the ultimate decision of the Tribunal.